Workers’
Compensation Board
OPINION ENTERED: February
3, 2017
CLAIM NO. 201401657
ALDEN RESOURCES LLC
PETITIONER
VS.
APPEAL FROM HON. GRANT S. ROARK,
ADMINISTRATIVE
LAW JUDGE
ALFARD
KING
HON.
GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
* * * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Alden
Resources, LLC (“Alden”) appeals from the August 19, 2016 Opinion and Order and
the September 21, 2016 Order on Reconsideration rendered by Hon. Grant S. Roark,
Administrative Law Judge (“ALJ”). Alden
contends the ALJ erred in commencing Alfard King’s (“King”) award of benefits
for coal workers’ pneumoconiosis (“CWP”) on the last day of his employment, as
opposed to the date his disability became manifest. Because the ALJ properly construed KRS
342.316(1), we affirm.
King alleged he contracted CWP during
his thirty-eight (38) years working as a coal miner. His last date of exposure was on March 22,
2013. In support of his claim, King
filed the May 17, 2014 x-ray report of Dr. Glen Baker, read as category
1/2. Alden submitted the x-ray
interpretation of Dr. Bruce Broudy, read as category 1/1. Pursuant to KRS 342.316, the Commissioner of
the Department of Workers’ Claims ordered King be
evaluated by Dr. Sonjya Chavda. Dr.
Chavda indicated King suffers from simple CWP based on x-ray evidence read as
category 1/2. Pulmonary function studies
revealed pre-bronchodilator functions of FVC 85% and FEV1 92%.
The ALJ relied upon Dr. Chavda’s
report to conclude King suffers CWP category 1/2. As a result of his FVC and FEV1 functions,
the ALJ determined King is entitled only to a retraining incentive benefit
(“RIB”) award pursuant to KRS 342.732(1)(a)1. Because King was sixty-three (63) years old
on the date of last exposure, the ALJ confirmed he may elect the alternate
income award available pursuant to KRS 342.732(1)(a)7.
Alden urged the ALJ to commence any
award on May 7, 2014, the date Dr. Baker diagnosed CWP category 1/2. The ALJ rejected this argument, and commenced
the award on the date of King’s last exposure.
Alden petitioned the ALJ for reconsideration on this issue, which was
denied. On appeal, Alden again argues
the award pursuant to KRS 342.732(1)(a)7, should King
make this election, must commence on the date of actual disability.
KRS 342.732(1)(a)7
sets forth a benefit which a claimant may elect to receive in lieu of a RIB:
An
employee who is age fifty-seven (57) years or older on the date of last
exposure and who is awarded retraining incentive benefits under subparagraphs
1. to 4. of this paragraph, may elect to
receive in lieu of retraining incentive benefits, an amount equal to sixty-six
and two-thirds percent (66-2/3%) of the employee's average weekly wage, not to
exceed seventy-five percent (75%) of the state average weekly wage as
determined by KRS 342.740 multiplied by the disability rating of twenty-five
percent (25%) for a period not to exceed four hundred twenty-five (425) weeks,
or until the employee reaches sixty-five (65) years of age, whichever occurs
first, KRS 342.730(4) notwithstanding.
Thus, while the statute plainly states
this elected benefit shall cease upon the claimant reaching sixty-five (65)
years of age, it does not state when the benefit shall commence. This Board has previously stated our belief
that the award of benefits pursuant to KRS 342.732(1)(a)7
should be treated as any other award of income benefits for occupational
disease, and therefore would be subject to KRS 342.316(1)(b), which provides:
The time of the beginning of compensation payments shall be on
the date of the employee’s last injurious exposure to the cause of the disease,
or the date of actual disability, whichever is later.
In Kentucky
Fuel Corp. v. Senters, Claim No. 2013-01850 (WCB February 1, 2016), we
explained our reasoning:
KRS 342.732(1)(a)7, which sets forth the award a claimant may elect in
lieu of a RIB, does not expressly state when the award commences for
calculation purposes. In light of this
ambiguity, we must read the provision “in context with” other parts of the
Workers’ Compensation Act. Id.
Though special provisions for calculation of CWP awards are promulgated
in KRS 342.732, CWP is nonetheless an occupational disease and therefore, we
conclude reference must be made to KRS 342.316(1)(b)
and the two provisions must be read together.
It is true, as
Senters points out, the award provided in KRS 342.732(1)(a)7
is not a true award of income benefits based on actual disability. However, the award is not entirely dissimilar
to any other award of income benefits provided in Chapter 342. It is calculated in the same manner, through
reference to the claimant’s average weekly wage and a disability rating. For this reason, we are compelled to conclude
the General Assembly intended the award provided in KRS 342.732(1)(a)7 be calculated in the same manner as other income
benefits for occupational disability, and therefore is subject to the
requirements of KRS 342.316(1)(b).
Here, the ALJ determined no proof had
been submitted as to when King’s disability, if any, actualized:
[N]othing in the record
establishes when, or if, [King] developed actual disability due to his
CWP. As such the only options
available and mandated by the statute is the last date of exposure.
We agree with the ALJ’s
reasoning. The fact a claimant may
qualify for an award for CWP pursuant to KRS 342.732, does not necessarily
equate to a finding the claimant is disabled within the meaning of KRS
342.0011(11). Further, the elective
award set forth in KRS 342.732(1)(a)7 does not require
a finding of actual disability. In fact,
the 25% disability rating employed by KRS 342.732(1)(a)7
is statutorily assigned and is not an actual representation of his true
impairment. Therefore, it is possible
for a claimant to validly elect the award absent a finding of actual
disability.
In
Senters, we considered this issue as a matter of first impression, and
remanded the claim to the ALJ to squarely address whether the claimant’s date
of last injurious exposure was subsequent to his date of “actual disability” in
light of our holding. Here, the ALJ
expressly stated that there is no proof King is disabled, and therefore we
agree he was obligated to commence the award of the date of last exposure. Therefore, we find no error.
For the reasons set forth herein, the
August 19, 2016 Opinion and Order and the September 21, 2016 Order on
Reconsideration rendered by Hon. Grant S. Roark, Administrative Law Judge, are
hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON
DONALD WALTON III
9300
SHELBYVILLE RD #700
LOUISVILLE,
KY 40222
COUNSEL FOR RESPONDENT:
HON
MCKINNLEY MORGAN
921
S MAIN ST
LONDON,
KY 40741
ADMINISTRATIVE LAW JUDGE:
HON
GRANT S. ROARK
PREVENTION
PARK
657
CHAMBERLIN AVENUE
FRANKFORT,
KY 40601