IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION I
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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RENDERED: DECEMBER 18, 2014
NOT TO BE PUBLISHED
oi5uprrnw (Court qcfir
2014-SC-000031-WC
DONALD EALY
EDATE I- vis Z)NA Q=c- 4.44q.c..
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APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-000527-WC
WORKERS' COMPENSATION NO. 12-00487
RC TRUCKING, INC.;
HONORABLE J. LANDON OVERFIELD,
CHIEF ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Donald Ealy, appeals from a Court of Appeals decision which
affirmed the dismissal of his coal workers' pneumoconiosis ("CWP") claim
against Appellee, RC Trucking. The Chief Administrative Law Judge ("CALJ")
originally dismissed Ealy's claim because he found it was barred by the statute
of limitations as set forth in KRS 342.316(4)(a). Ealy wants his claim placed in
abeyance because he believes the General Assembly will revise KRS 342.316 in
light of Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011), which held
that the consensus process applicable to CWP claims was unconstitutional.
For the below stated reasons, we affirm the Court of Appeals.
On April 19, 2012, Ealy filed a Form 102-CWP alleging that on March 11,
2005, his last day of employment with RC Trucking, he became affected by
CWP. In response, RC Trucking argued that his claim was barred by the three-
year statute of limitations and the five-year statute of repose contained in KRS
342.316(4)(a) because he filed it seven years after his last contact with the
occupational hazard. Ealy countered, arguing that a statute of limitations
cannot exist for an unconstitutional statute. He noted that Vision Mining held
the required consensus procedure and standard of proof for CWP claims,
outlined in KRS 342.316(3) and (13), were unconstitutional. The CALJ found
in favor of RC Trucking and dismissed Ealy's claim as untimely because Vision
Mining did not address the statute of limitations in KRS 342.316(4)(a). The
Workers' Compensation Board and Court of Appeals affirmed, and this appeal
followed.
It appears that Ealy has abandoned his argument that there cannot be a
statute of limitations for a statute which has been held to be unconstitutional.
Instead he pleads for his claim to be placed in abeyance until the General
Assembly takes action to address the statutes that Vision Mining held to be
unconstitutional. In reviewing Ealy's arguments the Court of Appeals only
needed to correct the Board "if it overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the evidence so
flagrant as of to cause gross injustice. The function of review in our Court is to
address new or novel questions of statutory construction, or to reconsider
precedent when such appears necessary, or to review a question of
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constitutional magnitude." Western Baptist Hospital v. Kelly, 827 S.W.2d 685,
687-688 (Ky. 1992). Keeping these standards in mind, we affirm the Court of
Appeals.
As an initial matter, we note that Vision Mining did not find KRS
342.316(4)(a) unconstitutional. Thus, the statute of limitations for a CWP
claim is in full effect and per KRS 342.316(4)(a) Ealy's claim was untimely
because he filed his claim seven years after his last contact with CWP causing
materials. The ALAJ did not err by dismissing Ealy's claim for being barred by
the statute of limitations. Additionally, we decline to place Ealy's claim in
abeyance until the General Assembly revises the procedure for CWP claimants
due to Vision Mining. Ealy's argument that the General Assembly will amend
the law so that he may file his claim late is pure speculation.
For the above stated reasons, we affirm the Court of Appeals.
All sitting. All concur.
COUNSEL FOR APPELLANT,
DONALD EALY:
McKinnley Morgan
COUNSEL FOR APPELLEE,
RC TRUCKING, INC.:
Paul E. Jones
Sara V. A. May
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