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RENDERED: September 6, 1996; 10:00 a.m.
NOT TO BE PUBLISHED

96-CA-0430-WC

WILLIAM O. WINDCHY, APPELLANT
Acting Director of Special Fund

PETITION FOR REVIEW UNDER CR 76.25

v. OF A DECISION OF THE WORKERS' COMPENSATION BOARD
WC-94-21964

DONALD R. BLANKENSHIP; APPELLEES
TRIPLE S. COAL CO., INC.;
HON. THOMAS A. DOCKTER,
Administrative Law Judge;
and WORKERS' COMPENSATION BOARD

OPINION
AFFIRMING

* * * * * * * * * * * * * * * * * * * *
BEFORE: DYCHE, HOWERTON, and SCHRODER, Judges.

HOWERTON, JUDGE. The Special Fund petitions for review of an
opinion of the Workers' Compensation Board (Board) rendered
January 19, 1996. The Board affirmed the decision of the
Administrative Law Judge (ALJ) finding that Blankenship's claim
for benefits for pneumoconiosis under KRS 342.732 was timely
filed and awarding 75 percent of total disability benefits
against the Special Fund. We agree and affirm the Board's
decision.

Blankenship was employed as an underground coal minor
for 15 years with his last date of exposure being May 31, 1990.
He filed a claim for benefits on June 1, 1994, and based upon a
diagnosis of category 2 pneumoconiosis rendered by a Dr. Anderson
on May 30, 1994, the Special Fund filed a timely answer asserting
the statute of limitations. Blankenship stated in a deposition
that he was first informed by his attorney in May of 1994 that he
had been diagnosed with the disease and that he had no knowledge
that he suffered from the disease prior to that time.

Blankenship and his employer entered into a lump-sum
settlement, and his claim against the Special Fund was submitted
to the ALJ with the contested issues being the existence of the
disease, the appropriate tier of benefits pursuant to
KRS 342.732, and the statute of limitations. The ALJ concluded
that Blankenship suffered from category 2 pneumoconiosis and
awarded total disability benefits. The Special Fund was liable
for 75 percent of the award. The Special Fund filed a petition
for reconsideration arguing that the ALJ had failed to address
the issue of the statute of limitations. In denying the
petition, the ALJ stated, "the Administrative Law Judge finds
that the statute of limitations was properly tolled from the date
that the diagnosis was made and that benefits shall commence on
the last date of exposure." The Board affirmed the ALJ's
decision, finding that it was based upon substantial evidence in
the record. This petition for review followed.

The Special Fund first argues that the ALJ failed to
properly address the issue of the statute of limitations. We
find this argument to be totally without merit. It is evident
that although the ALJ failed to address the limitations argument
in his initial opinion, he did so in his denial of the Special
Fund's petition for review.

Next, the Special Fund argues that the ALJ erred in
finding that Blankenship's claim was timely filed. After
reviewing the record and applicable statutes, we must disagree.
KRS 342.316(3)(a) requires a claim for benefits resulting from an
occupational disease to be filed within three years after the
last date of injurious exposure or after the employee first
experiences a "distinct manifestation of an occupational disease
in the form of symptoms reasonably sufficient to apprise him that
he has contracted the disease, whichever shall occur last."
Further, KRS 342.316(2)(a), governing notice to the employer,
provides that an employee must provide timely notice upon the
distinct manifestation of an occupational disease in the form of
symptoms reasonably sufficient to apprise him that he has
contracted the disease or upon diagnosis, which occurs last.

The Special Fund relies on the medical evidence
presented that Blankenship had suffered from several symptoms
which are associated with pneumoconiosis for a number of years
prior to filing his claim. However, as the board stated,
"[s]hortness of breath and chest pains do not as a matter of law
sufficiently apprise the coal miner of existence of silicosis or

pneumoconiosis but the question is one of fact determination by
the Board (now ALJ). Church v. Turner-Elkhorn Coal Co., Ky., 492
S.W.2d 877 (1973); Twin Peak Coal Co. v. Woolum, Ky., 467 S.W.2d
134 (1971)."

Our review on appeal is limited to whether the decision
of the ALJ and Board was supported by substantial evidence in the
record, and we will not reverse unless the evidence is such that
it compels an opposite finding. Western Baptist Hospital v.
Kelly, Ky., 827 S.W.2d 685 (1992). Although we may not have
reached the same decision as the ALJ, his decision was supported
by substantial evidence and hence must be affirmed. Wolf Creek
Collieries v. Crum, Ky. App., 673 S.W.2d 735 (1984).

The opinion of the Workers' Compensation Board is
affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT:  BRIEF FOR DONALD BLANKENSHIP:  
David W. Barr  Thomas G. Polites  
Labor Cabinet Louisville, KY  Lexington, KY  

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