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JANUARY 26, 2001; 2:00 p.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1999-CA-003079-WC

RENO COAL, INC.

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-97-01651

DANNY EARL RATLIFF; SPECIAL FUND; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD TO BE HEARD WITH NO. 1999-CA-003147-WC

APPELLEES

ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-97-01651

DANNY EARL RATLIFF; RENO COAL, INC.; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD

APPELLEES

OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: GUDGEL, Chief Judge; COMBS and McANULTY, Judges. McANULTY, JUDGE: The primary issue in these combined appeals from the Workers' Compensation Board ("Board") is whether the 1996 amendments to KRS 342.315, effective December 12, 1996, apply to the claim of Danny Ratliff for disability benefits for pneumoconiosis. apply. The Board concluded that the amendments do not

However, based on a recent Supreme Court decision we must

disagree. Danny Ratliff worked in the coal industry for approximately 28 years. ("Reno") in July of 1996. He began working for Reno Coal, Inc. At that time he was working

underground, however, he later changed positions and began working in the shop as a mechanic. Ratliff testified that while

he worked in the shop, he was not exposed to coal dust; therefore, his last date of exposure was in September, 1996. Medical evidence concerning Ratliff's condition consisted of xray readings ranging from a negative reading to category 2 pneumoconiosis. Most importantly, the university evaluator

interpreted the condition to be Category 1/1. The amended version of KRS 342.315 provides that the findings and opinions of an evaluator from either the University of Kentucky medical school or the University of Louisville medical school will be afforded presumptive weight by arbitrators and ALJ's. The ALJ declined to apply the amendment in this case,

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exposure, which was before the effective date of the amendment, controlled. The ALJ therefore relied on other medical evidence,

concluded that Ratliff suffers from Category 2 pneumoconiosis and awarded total disability benefits. On appeal to the Board, Reno asserted that the ALJ erred in not applying the amendment to KRS 342.315. Reno also

argued that the ALJ erred in commencing benefits on October 1, 1996, when Ratliff continued to work until December 23, 1997. The Board agreed with the ALJ on the application of the amendment. However, the Board reversed and remanded on the issue Reno again raises this issue to this

of when benefits commenced.

Court, despite the fact that the Board ruled in its favor. Accordingly, we are not compelled to address that argument. The question of the retroactivity of amendments to KRS 342.315 was pending before the Supreme Court as of the time Reno and Special Fund filed their briefs. A decision has now been

rendered in Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88 (2000), in which the Supreme Court held that the 1996 amendments to KRS 342.315 apply to all claims pending before the fact finder on or after the effective date of December 12, 1996. Id. at 94. The

Court further decided that subsection (2) of the amended statute creates a rebuttable presumption which is governed by Kentucky Rules of Evidence (KRE) 301 and does not shift the burden of persuasion. Id. at 95.

Inasmuch as Ratliff filed his claim after the effective date of the amendment, the holdings of Magic Coal Co. v. Fox, supra, mandate that the decision of the Board must be reversed

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and this matter be remanded to the ALJ for proceedings consistent with that opinion. Although Reno raises additional arguments

concerning the sufficiency of the evidence, they need not be addressed at this time. ALL CONCUR. BRIEF FOR APPELLANT RENO COAL: Paul E. Jones Baird, Baird, Baird & Jones, P.S.C. Pikeville, KY BRIEF FOR APPELLEE RATLIFF: Miller Kent Carter Branham & Carter, P.S.C. Pikeville, KY BRIEF FOR APPELLEE/APPELLANT SPECIAL FUND: Joel Zakem Frankfort, KY

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