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Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  January 6, 2017

 

 

CLAIM NO. 201501877

 

 

KENNETH RAY BALLOU                             PETITIONER

 

 

VS.         APPEAL FROM HON. DOUGLAS W. GOTT,

                 ADMINISTRATIVE LAW JUDGE

 

 

CUMBERLAND RIVER COAL CO

HON. DOUGLAS W. GOTT,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

 

RECHTER, Member.  Kenneth Ray Ballou (“Ballou”) appeals from the July 22, 2016 Opinion and Order and the August 16, 2016 Order on Reconsideration rendered by Hon. Douglas W. Gott, Administrative Law Judge (“ALJ”).  The ALJ dismissed Ballou’s claim, concluding Kentucky does not have jurisdiction or extraterritorial jurisdiction.  For the reasons set forth herein, we affirm.

          The facts of this claim are largely uncontested.  Ballou filed a Form 101 alleging cumulative trauma injuries to multiple body parts while working for Cumberland River Coal Company (“Cumberland”).  He attached the medical report of Dr. Arthur Hughes, who opined Ballou’s cumulative trauma injuries were brought into disabling reality as a result of his “latest employment”.  He alleged a last date of exposure on July 19, 2014.  The claim was bifurcated to first determine the issue of extraterritorial jurisdiction. 

          Ballou resides in Kentucky.  He was first hired by Cumberland in 2006 after he applied at an office in Virginia.  Ballou first worked for Cumberland at a mine in Kentucky until November 2010, when he successfully bid on a job at a mine in Virginia.  He sought the change in order to work third shift instead of second.  From 2010 to 2014, his seniority allowed him to bid on jobs in Kentucky, but he did not pursue those opportunities.  He was laid off on July 19, 2014.  Cumberland offered him a position at a mine in West Virginia, which he accepted.  Ballou worked at the West Virginia mine for one week then quit because the distance was too far to travel daily.

          After he applied for work with Cumberland in 2006, Ballou joined the Scotia Employees Association and attended meetings at the union hall in Partridge, Kentucky.  Ron Yeary, the union vice president, testified Ballou was required to join the union as a condition of his employment.  Ballou also testified it was mandatory for him to join the union in Kentucky.  However, Ricky Lee Johnson, the manager of the mine where Ballou last worked in Virginia, testified union membership was not a requirement. 

          The ALJ determined Ballou’s claim could not be adjudicated in Kentucky.  Referencing KRS 342.670(1) and (5), the ALJ concluded Ballou’s employment was principally localized in Virginia because he worked exclusively at the Virginia mine for the last four years of his career.  The ALJ further determined Ballou’s contract for hire was made in Virginia, even if his membership in a Kentucky-based union was required.  The claim was therefore dismissed.  Ballou petitioned for reconsideration, which was denied as a reargument of the merits. 

          On appeal, Ballou again argues his employment was principally localized in Kentucky, and that the ALJ erred in concluding he “regularly worked” in Virginia.  He further alleges the ALJ failed to address whether he was working under a Kentucky contract for hire principally localized in Virginia. 

          Our analysis begins with KRS 342.670(1):

 

If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee, or in the event of the employee's death, his or her dependents, would have been entitled to the benefits provided by this chapter had that injury occurred within this state, that employee, or in the event of the employee's death resulting from that injury, his or her dependents, shall be entitled to the benefits provided by this chapter, if at the time of the injury:

 

(a)    His or her employment is principally localized in this state; or

 

(b)    He or she is working under a contract of hire made in this state in employment not principally localized in any state; or

 

(c)    He or she is working under a contract of hire made in this state in employment principally localized in another state whose workers' compensation law is not applicable to his or her employer; or

 

(d)    He or she is working under a contract of hire made in this state for employment outside the United States and Canada.

 

          KRS 342.670(5)(d) explains:

A person's employment is principally localized in this or another state when:

 

1.   His or her employer has a place of business in this or the other state and   he or she regularly works at or from   that place of business, or

 

2.   If subparagraph 1. foregoing is not applicable, he or she is domiciled and spends a substantial part of his or her working time in the service of his or her employer in this or the other state.

 

          The ALJ looked first to KRS 342.670(1)(a) and concluded Ballou’s employment was principally localized in Virginia.  Ballou testified he worked exclusively at the Virginia mine from 2010 to 2014, and for one week at the West Virginia mine.  He performed no work for Cumberland in Kentucky after 2010.  Based on these facts, the ALJ concluded Ballou’s employment is principally localized in Virginia according to the definition provided in KRS 342.670(5)(d)1.

          Ballou argues the ALJ erroneously interpreted the phrase “regularly works” contained in KRS 342.670(5)(d)1.  He argues he did not “regularly” work in either Kentucky or Virginia, because he worked in each state for four years over the course of his career with Cumberland, and was eligible to bid on a transfer at any time.  Thus, Ballou argues he did not “regularly” work in either state.

          We find no support for this novel interpretation of the word “regularly” as contained in KRS 342.670(5)(d)1.  When the plain meaning of the statutory language is clear, we are not at liberty to base our interpretation of the statute on other sources.  Revenue Cabinet v. O’Daniel, 153 S.W.3d 815, 819 (Ky. 2005).  We must interpret words with their literal meaning unless to do so would lead to an absurd result.  Overnite Transp. Co. v. Gaddis, 793 S.W.2d 129, 132 (Ky. App. 1990).  “Regular” means “normal, typical, usual or ordinary.” Webster’s New World College Dictionary (2010).  Aside from one week at the West Virginia mine, Ballou worked exclusively at the Virginia mine from 2010 through 2014.  He reported to the Virginia mine every day, and performed no work in Kentucky for Cumberland after 2010.  As of July 19, 2014, his last date of exposure, he was working daily in Virginia.  We find no logical basis to conclude Ballou did not “regularly” work in Virginia, and affirm the ALJ’s conclusions.

          We acknowledge Ballou’s emphasis on the fact he is alleging a cumulative trauma injury, which may have been caused by work he performed prior to 2010 in Kentucky.  There is nothing in KRS Chapter 342 which specifically addresses “where” a cumulative trauma injury occurs.  However, like the ALJ, we note the case of Amax Coal Co. v. Smith, 748 S.W.2d 158 (Ky. App. 1988).  Smith alleged coal workers’ pneumoconiosis.  He worked ten years in Kentucky for Amax, and the final four years of his career at Amax’s mine in Indiana.  Though the Court of Appeals acknowledged Smith’s disease may have been caused in part by exposure which occurred in Kentucky, it focused on the locale of his last injurious exposure in determining where his employment was principally localized.  Thus, the Court concluded Smith’s employment was principally localized in Indiana because that is where he received “his last injurious exposure.”  Though Smith concerns a coal workers’ pneumoconiosis claim, we find its rationale applicable to cumulative trauma injury claims because both involve not a single traumatic event, but a series of small, injurious mini traumas.                      

          Alternatively, Ballou argues he satisfies the requirements of KRS 342.670(5)(d)2.  However, by its’ express terms, KRS 342.670(5)(d)2 is only available if the requirements of KRS 342.670(5)(d)1 are not satisfied.  Such is not the case in this claim.  Though Ballou urges he spent a “substantial part of his working time in the service of his employer” in Kentucky, this circumstance, even if true, is not applicable.  For the reasons set forth above, KRS 342.670(5)(d)1 applies and dictates Ballou’s employment was principally localized in Virginia.

          Finally, Ballou argues the ALJ erred in determining KRS 342.670(1)(c) does not apply to his situation.  The ALJ noted Ballou submitted his employment application at Cumberland’s office in Virginia.  He was interviewed and hired in Virginia.  The ALJ further determined the question surrounding Ballou’s union membership is irrelevant because, even if a requirement of his employment, the membership represents simply a “step” in the hiring process.  We agree.  We have been provided no support for the conclusion Ballou’s membership in a Kentucky-based union, even if required, overrides the fact he interviewed for and was offered employment at Cumberland’s Virginia office.  Having failed to satisfy the this first requirement, KRS 342.670(1)(c) does not apply. 

          For the foregoing reasons, the July 22, 2016 Opinion and Order and the August 16, 2016 Order on Reconsideration rendered by Hon. Douglas W. Gott, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

 

 

COUNSEL FOR PETITIONER:

 

HON SHERRY BRASHEAR

PO BOX 1626

HARLAN, KY 40831

 

COUNSEL FOR RESPONDENT:

 

HON DENISE M DAVIDSON

PO DRAWER 986

HAZARD, KY 41702

 

ADMINISTRATIVE LAW JUDGE:

 

HON DOUGLAS W. GOTT

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601