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
*
* * * * *
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