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Commonwealth of Kentucky 

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

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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