Preview:

RENDERED: MAY 18,ZOOO TO BE PUBLISHED

MAGIC COAL COMPANY

: .._'
,-.

,.~.

-APPELLANT

V.

:-`r $UJj .$. APPEAL FROM COURT OF APPEALS' - "`. --' NO. 1998-CA-000527-WC WORKERS' COMPENSATION BOARD NO. 97-00367

RONNIE FOX; ZARING P. ROBERTSON, Administrative Law Judge; and WORKERS' COMPENSATION BOARD AND 1999-SC-0509-WC PEABODY COAL COMPANY

APPELLEES

APPELLANT

V.

APPEAL FROM COURT OF APPEALS NO. 1998-CA-0000489-WC WORKERS' COMPENSATION BOARD NOS. 96-08675, 96-07835

BILLY GENE HAWES; EDDIE BEALMEAR; SHEILA C. LOWTHER, Administrative Law Judge; and WORKERS' COMPENSATION BOARD OPINION OF THE COURT REVERSING AND REMANDING IN 1999-SC-0163-WC AFFIRMING IN 1999-SC-0509-WC

APPELLEES

These workers' compensation appeals concern the portion of KRS 342.315(2) which. became effective December 12, 1996, and which states that the findings and opinions of designated university medical evaluators "shall be afforded presumptive weight." At issue is whether the amendment governs claims which arose before its

I

'

effective date. The 1996 version of KRS 342.315 provides, in pertinent part, as follows: (1) The commissioner shall contract with the University of Kentucky and the University of Louisville medical schools to evaluate workers who have had injuries or become affected by occupational diseases covered by this chapter. Referral for evaluation may be made to one (1) of the medical schools whenever a medical question is at issue. (2) The physicians and institutions performing evaluations pursuant to this section shall render reports encompassing their findings and opinions in the form prescribed by the commissioner. The clinical findings and opinions of the designated evaluator shall be afforded presumptive weight by arbitrators and administrative law judges and the burden to overcome such findings and opinions shall fall on the opponent of that evidence. When arbitrators or administrative law judges reject the clinical findings and opinions of the designated evaluator, they shall specifically state in the order the reasons for rejecting that evidence. Two other amendments which became effective on December 12, 1996, also are relevant to a consideration of the question at issue. KRS 342.0015 provides, in pertinent part, that the "procedural provisions" of the 1996 Act "shall apply to all claims irrespective of the date of injury or last exposure, including, but not exclusively, the mechanisms by which claims are decided and workers are referred for medical evaluations." KRS 342.316(3)(b)4.b. provides that the arbitrator to whom an occupational disease claim is assigned "shall" refer the worker to a university evaluator for examination. There is no comparable requirement concerning injury claims, leaving it to the discretion of the fact-finder whether to order an evaluation in a given case. These appeals both involve retraining incentive benefit (RIB) claims. Maaic Coal Co. v. Fox: The claimant was employed in the coal mining industry for over 19 years and last worked in March, 1992. In February, 1997, he filed a claim for a RIB. Among the contested issues was whether he suffered from coal workers' pneumoconiosis and

whether the university medical expert's report was entitled to presumptive weight pursuant to KRS 342.315. Evidence of the presence of the disease was conflicting, and the report of the university evaluator was negative. In a decision rendered on September 9, 1997, the Administrative Law Judge (ALJ) determined that, to the extent that it afforded presumptive weight to the findings and opinions of university evaluators, the 1996 amendment to KRS 342.315 was substantive and should not be applied to a claim which arose before the amendments effective date. The ALJ indicated that the credentials of all of the expert witnesses were worthy of respect but chose to rely upon the claimant's witnesses and awarded a RIB. This appeal was considered by the Workers' Compensation Board (Board) together with several others, including Peabodv Coal Co. v. Hawes and Peabody Coal Co. v. Bealmear. The Board rejected the argument that KRS 342.314(2) simply shifts the burden of going forward with proof to the party who opposes the evaluator's report, indicating that such a construction would render the amendment ineffectual. The Board determined, instead, that the amendment creates a rebuttable presumption which favors the university evaluator's opinion, which represents an alteration in the overall burden of proof placed upon the parties, and which is substantive in nature. For that reason, the Board concluded that the findings and opinions of university evaluators should not be given "presumptive weight" in those claims which arose before December 12, 1996. The Court of Appeals affirmed the Board. Magic Coal Co. (Magic) emphasizes that this is a RIB claim which, unlike a claim for income benefits, is controlled by the law on the date of filing rather than the law on the date of last exposure. Breedina v. Colonial Coal Co., Ky., 975 S.W.2d 914 (1998). This claim was filed after December 12, 1996; therefore, Magic asserts, the
.

-3-

December 12, 1996, amendments to Chapter 342 controlled the claim. Second, Magic argues that KRS 342.315(2) does not alter the burden of proof but is a procedural mechanism to ensure the ALJ's reliance upon impartial expert testimony "when alternative medical testimony is not particularly convincing." Emphasizing that the presumption is rebuttable, not conclusive, it argues that the presumption is procedural in nature. See Boaas v. Blue Diamond Coal Co., 497 F. Supp. 1105 (1980); General Refractories Co., Inc. v. Henderson, Ky., 232 S.W.2d 846 (1950). Claimant responds that in the absence of specific language to the contrary, the meaning of "presumptive weight" should be dictated by KRE 301. In the alternative, he argues that if the Board's construction of the term is correct, the amendment is substantive and should not be applied in instances where the injury or last exposure occurred before the amendment's effective date. Finally, claimant raises four arguments against the constitutionality of the provision in the event that it is construed as restricting the authority of the ALJ to weigh conflicting medical evidence. Peabodv Coal Co. v. Hawes. et. al.: This appeal involves two different RIB claims. They were filed against Peabody Coal Co. (Peabody) by Billy Gene Hawes and by Eddie Bealmear. In each instance, the last exposure occurred before December 12, 1996, and a RIB claim had been filed and was pending before the ALJ on December 12, 1996: It is undisputed that the preDecember 12, 1996, version of the Act was the controlling substantive law. In each instance, the ALJ determined that the "presumptive weight" provision was procedural in nature and did apply to the claim. The ALJ also determined, in each instance, that the worker had introduced favorable evidence from two well respected pulmonary specialists, one of whom was the only expert who had actually examined the worker as
-4v

well as read an x-ray. In each instance, the ALJ was persuaded that the evidence offered by the worker overcame the testimony of the university evaluator. The Board affirmed the result on the basis that the presumptive weight provision was substantive, and the Court of Appeals affirmed. The questions presented on appeal concern whether the amendment is procedural or substantive. If the amendment is procedural, a question arises concerning the type of evidence which is necessary to overcome the presumptive weight of a university evaluator's testimony. No constitutional question is raised. As a general rule, the law in effect on the date of injury or last injurious exposure is deemed to control a worker's rights and an employer's obligations with regard to any claim arising out of and in the course of the employment. Although a retraining requirement was adopted in 1994, KRS 342.732(l)(a) permitted workers who continued to be employed in the mining industry to receive a RIB; therefore, there was no date of last exposure from which to fix the rights of the parties with regard to RIB claims filed by working miners. In Arch of Kentuckv. Inc. v. Thomas, Ky., 895 S.W.2d 578 (1995) the Court determined that, unlike other claims for occupational disease, RIB claims were payable at the rate in effect on the date the claim was filed. With regard to the appeals which are presently at issue, Hawes' and Bealmear's last exposure to coal dust occurred before December 12, 1996, and their RIB claims had been filed and were pending before the ALJ on December 12, 1996. Fox's last exposure occurred before December 12, 1996, but his RIB claim was filed after December 12, 1996. The Board rendered a decision on all three claims on January 30, 1998. On July 23, 1998, during the pendency of the employers' appeals to the Court of Appeals, this Court rendered a decision in Breedina v. Colonial Coal Co., Ky., 975 -5'

S.W.2d 914 (1998). Breedinq concerned a RIB claim which was filed in 1995 by a worker who had retired from the mining industry in 1991. The 1996 amendments were enacted during the pendency of the appeal to the Board. When the appeal was before the Court of Appeals, the employer asserted for the first time that the December 12, 1996, version of KRS 342.732(l)(a) was remedial and controlled the claim. Relying upon Arch of Kentucky. Inc. v. Thomas, supra, we determined that the law on the date the claim was filed controlled the worker's entitlement to a RIB and noted that the claim would be subject to a remedial amendment which became effective during its pendency before the ALJ. We concluded, however, that the ALJ could not have erred by failing to apply an amendment which became effective after the decision was entered. We also noted that the employer had failed to raise an argument that the 1996 amendment to KRS 342.732( 1 )(a) was remedial before the Board and concluded, therefore, that the

Court of Appeals should not have considered the question.' Magic's argument has been that the 1996 amendments to KRS 342.315 were remedial legislation and that they applied, retroactively, without regard to the date of a worker's last exposure to coal dust. Magic has asserted that KRS 342.0015 indicated a legislative intent for the 1996 amendments to KRS 342.315 be applied to all workers' compensation claims which were filed on or after the effective date of the amendment. In its appeal to this Court, Magic relies for the first time upon Breedina v. Colonial Coal Co.. supra, as authority for raising the additional proposition that because Fox's claim lln each of the claims presently at issue, the last exposure to coal dust occurred before December 12, 1996. Hawes' and Bealmear's claims were filed and pending before the ALJ on that date. Fox's claim was filed after that date. Neither employer argued to the ALJ, the Board, or the Court of Appeals that the December 12, 1996, version of KRS 342.732(l)(a) was remedial.

was filed after December 12, 1996, the amended versions of both KRS 342.732(1)(a) and KRS 342.315 apply to the claim, without regard to whether either provision is remedial. We begin by noting that Magic raised no argument before the ALJ or the Board which asserted that the date of filing fixed the rights of the parties with regard to the claimant's RIB claim and, therefore, that the version of KRS 342.732(1)(a) and of KRS 342.315 which became effective on December 12, 1996, controlled the claim. We conclude, therefore, that the argument is not properly preserved for review. In any event, our decision in Breedina v. Colonial Coal Co., supra, was rendered after Fox's claim was considered by the ALJ and, therefore, could not be a basis for determining that the decision was erroneous. KRS 446.080(3) provides that, "No statute shall be construed to be retroactive, unless expressly so declared." With regard to the intent of the legislature in enacting the 1996 amendments to the Act, KRS 342.0015 provides, in pertinent part, as follows: Procedural provisions of 1996 (1 st Extra. Sess.) Ky. Acts ch. 1 shall apply to all claims, irrespective of the date of injury or last exposure, including, but not exclusively, the mechanisms by which claims are decided and workers are referred for medical evaluations. It is apparent that KRS 342.316(3)(b)4.b. relates to the mechanism by which workers are referred for medical evaluations in occupational disease claims. It also is apparent that KRS 342.315(2) relates to the mechanisms by which claims are decided. We, therefore, view KRS 342.0015 as expressing a clear legislative intent for KRS 342.315 and KRS 342.316(3)(b)4.b., to apply to all claims pending before an arbitrator or ALJ on or after December 12, 1996. This appeal turns upon what we discern the meaning and intent of KRS 342.315(2) to be. The role of the Court in construing a legislative act is to

-7-

effectuate the intent of the legislature. Where that intent is not clear, we remain mindful of the principle embodied in KRS 446.080(3) that, unless the legislature clearly indicates otherwise, legislation is not intended to affect the legal consequences of events which occurred before its enactment. Prior to December 12, 1996, KRS 342.3.15 permitted an ALJ, upon motion of either party or on the ALJ's own motion, to appoint up to three "disinterested and duly qualified physicians or surgeons" to examine an injured worker and to testify by means of a joint report. Physicians who agreed to participate were limited to charging $75.00. An ALJ was permitted to allow the reasonable cost of x-rays and an additional fee of $25.00 if such a physician was deposed. KRS 342.315 contained no standard or procedure for assuring a supply of "disinterested and duly qualified physicians or surgeons." Taken together, the 1996 amendments to KRS 342.315 and KRS 342.316 provide for contracts with the University of Kentucky and University of Louisville medical schools for medical examinations. They require a university evaluation in all occupational disease claims and provide that the "clinical findings and opinions" of the university evaluator "shall be afforded presumptive weight." They indicate that the burden to overcome the findings and opinions of a university evaluator falls upon the opponent of the evidence. Finally, they indicate that if an arbitrator or ALJ rejects the findings and opinions of a university evaluator, the reasons for doing so must be specifically stated in the order. The term "presumptive weight" is one which the parties concede is not found in prior Kentucky law and one which is not defined in Chapter 342. KRS 342.315(2) does not evince a legislative intent for the clinical findings and opinions of a university
-8-

.--

evaluator to be conclusive. It anticipates that the opponent of a university evaluator's report may introduce countervailing evidence which will overcome the report; furthermore, KRS 342.125(2) does not prohibit the fact-finder from rejecting a finding or

opinion of a university evaluator but requires only that the reasons for doing so must be specifically stated. In the absence of a definition of the term "presumptive weight," either by prior judicial decision or by statute, we conclude that the legislature intended to create a rebuttable presumption. A presumption has been defined as a rule of law which creates or recognizes a probative relationship between two facts, one of which is proved (the proven fact) and the other of which is unproved (the presumed fact), and which attributes a procedural significance to that relationship. Robert G. Lawson, The Kentuckv Evidence Law Handbook

Download 1999-sc-000509-wc.pdf

Kentucky Law