IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED: DECEMBER 18, 2014
NOT TO BE PUBLISHED
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2014-SC-000102-WC
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T—NMAG:113
RANDY DEAL APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-000777-WC
WORKERS' COMPENSATION NO. 91-15712
GUNTHER NASH MINING CONSTRUCTION
COMPANY; SPECIAL FUND;
HONORABLE J. LANDON OVERFIELD,
CHIEF ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Randy Deal, appeals from a Court of Appeals decision which
affirmed the overruling of his motion to reopen his coal workers'
pneumoconiosis ("CWP") claim. Deal argues that the Chief Administrative Law
Judge ("CALJ") erred in overruling his motion to reopen pursuant to KRS
342.125(3) because KRS 342.125(5)(a) is the proper statute to apply. KRS
342.125(5)(a) states:
Upon the application of the affected employee, and a showing of
progression of his previously-diagnosed occupational
pneumoconiosis resulting from exposure to coal dust and
development of respiratory impairment due to that pneumoconiosis
and two (2) additional years of employment in the Commonwealth
wherein the employee was continuously exposed to the hazards of
the disease, the administrative law judge may review an award or
order for benefits attributable to coal-related pneumoconiosis
under KRS 342.732. An application for review under this
subsection shall be made within one (1) year of the date the
employee knew or reasonably should have known that a
progression of his disease and development or progression of
respiratory impairment have occurred. Review under this
subsection shall include a review of all evidence admitted in all
prior proceedings.
For the reasons set forth below, we affirm the Court of Appeals.
Deal was awarded temporary total disability benefits, permanent partial
disability benefits, and medical expenses for CWP in an opinion, award, and
order dated December 29, 1993. He also received retraining incentive benefits.
After receiving his award based on CWP, Deal states that he continued to work
in the coal mining industry for sixteen years, his last date of employment being
October 26, 2009.
In late 2012, Deal was examined by his family physician, Dr. Abdul
Dahhan. Dr. Dahhan, a former B-reader, performed tests which indicated that
Deal's lungs had deteriorated and his breathing had worsened since his
original award. Based on this visit, Deal filed a motion to reopen on October
15, 2012, arguing that he is now totally occupationally disabled. Attached to
the motion was a copy of Dr. Dahhan's records showing Deal's spirometry test
results and a copy of the original opinion, award, and order from 1993.
However, the motion did not state that Deal was attempting to reopen a claim
under KRS 342.125(5)(a) or state that he worked around the hazards of
pneumoconiosis in the Commonwealth for at least two years after the entry of
his original award.
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The CALJ overruled Deal's motion to reopen pursuant to KRS 342.125(3)
because it was filed more than four years after the date of his last award or
order, which was December 29, 1993. Deal filed a petition for reconsideration
arguing that the statute of limitations does not apply to an award rendered
prior to December 12, 1996, the date in which the 1996 workers' compensation
act took effect. In denying the petition the CALJ cited to KRS 342.125(8) for
support. That statute states in pertinent part:
The time limitation prescribed in this section shall apply to all
claims irrespective of when they were incurred, or when the award
was entered, or the settlement approved. However, claims decided
prior to December 12, 1996, may be reopened within four (4) years
of the award or order or within four years of December 12, 1996,
whichever is later .. .
Thus, since Deal filed his motion to reopen later than four years after the
original award was issued or December 12, 1996, the CALJ found it was
untimely.
The Board and Court of Appeals affirmed. KRS 342.125(5)(a) is first
mentioned in the Court of Appeals opinion. The Court of Appeals declined to
apply it however because Deal "failed to include [with his motion] a medical
report expressing the opinion that he has had a progression of his previously
diagnosed occupational pneumoconiosis resulting from exposure to coal dust
and the development of respiratory impairment as a result thereof, from two
continuous years of continuous exposure to the hazards of the disease." This
appeal followed.
Deal argues that the overruling of his motion to reopen was erroneous
because the CALJ did not apply KRS 342.125(5)(a). However, the first time
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Deal argued that KRS 342.125(5)(a) should be applied was before the Court of
Appeals and it is not the responsibility of the CALJ or Board to argue Deal's
case on his behalf. However, even if the CALJ applied KRS 342.125(5)(a),
Deal's motion did not satisfy the requirements to reopen his claim.
Specifically, Deal did not present any evidence in his motion that he worked for
at least two more years in the Commonwealth where he was exposed to
hazards of pneumoconiosis. Thus, on the face of the motion Deal's award
could not have been reopened based on KRS 342.125(5)(a). See Bolin v. T & T
Mining, 231 S.W.3d 130 (Ky. 2007) (denying a reopening under KRS
342.125(5)(a) because there was no evidence that the claimant had further
exposure to coal dust post-award). Since KRS 342.125(5)(a) was not clearly
invoked by Deal and he did not present evidence to satisfy the requirements to
reopen under that statute, it was not clearly erroneous for the CALJ to apply
KRS 342.125(3) and (8) to find the motion was untimely.
We also note that Deal has requested that we review and change the
standards by which the Board and Court of Appeals review an ALJ's opinion.
We decline his invitation to overrule well-established law.
For the above stated reasons we affirm the Court of Appeals.
All sitting. All concur.
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COUNSEL FOR APPELLANT,
RANDY DEAL:
Johnnie L. Turner
COUNSEL FOR APPELLEE,
GUNTHER NASH MINING CONSTRUCTION
COMPANY:
Not Represented by Counsel
COUNSEL FOR APPELLEE,
SPECIAL FUND:
Robert L. Whittaker
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