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OPINION RENDERED: [Date Rendered]

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 5, 2017

 

 

CLAIM NO. 201401842

 

 

GARY FLETCHER                                  PETITIONER

 

 

 

VS.          APPEAL FROM HON. R. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

PILGRIM MINING CO

HON. R. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

RECHTER, Member.  Gary Fletcher (“Fletcher”) appeals from the November 21, 2016 Opinion and Order rendered by Hon. R. Roland Case, Administrative Law Judge (“ALJ”) dismissing the claim for failure to prove the existence of coal workers’ pneumoconiosis (“CWP”) or any other occupational disease resulting from exposure to coal dust.  On appeal, Fletcher argues the ALJ erred in dismissing the claim for occupational disease pursuant to KRS 342.316.  For the reasons set forth herein, we affirm.

          Fletcher filed a Form 102-CWP, Application for Resolution of Coal Workers’ Pneumoconiosis Claim, alleging he became affected by CWP through exposure to coal dust during his employment with Pilgrim Mining Co. (“Pilgrim”).  Fletcher’s claim was amended to also seek recovery for occupational disease pursuant to KRS 342.730 and KRS 342.316.  In support of the claim, he submitted the report of Dr. Michael Alexander who interpreted a May 21, 2013 x-ray as Category 1/0.[1] 

          Pilgrim submitted the report of Dr. Bruce Broudy who evaluated Fletcher on January 21, 2015.  Dr. Broudy read an x-ray taken that day as Category 0/0.  Pulmonary function studies revealed a severe restrictive ventilatory defect with no evidence of obstruction and no responsiveness to bronchodilation.  In an October 5, 2016 report, Dr. Broudy noted coal dust can cause impairment in the absence of radiographic changes, but impairment of Fletcher’s severity usually is associated with some radiographic evidence of the disease.

          Dr. Fred Rosenblum and Dr. James C. Reed evaluated Fletcher on January 29, 2016 at the request of the Commissioner of the Department of Workers’ Claims.  Fletcher’s x-ray revealed no parenchymal or pleural abnormalities consistent with pneumoconiosis.  Dr. Rosenblum explained his diagnosis as follows:

CRX does not show coal workers pneumoconiosis however pulmonary function tests and symptoms are consistent with obstructive and restrictive lung disease lung disease [sic] due to exposure to coal dust.  He does have the appropriate exposure history to make this diagnosis.  Respiratory impairment is class 3 according to AMA guidelines.  I would estimate his whole body impairment at 45% based on these guidelines. 

 

Dr. Rosenblum indicated within reasonable medical probability Fletcher’s disease and any pulmonary impairment is the result of exposure to coal dust in the severance or processing of coal. 

          Dr. Rosenblum testified by deposition on September 27, 2016.  He indicated Fletcher had both obstructive and restrictive lung disease with coal dust exposure as the most likely etiology.  He elaborated: 

Coal workers’ pneumoconiosis is the pulmonary response to a mineral dust of which coal is the mineral dust in this setting.  It is an immunologic response; however, it’s a – it’s more of a chronic process that doesn’t tend to respond to immunosuppressive therapy.  Legally, it’s defined mostly radiographically.  Pathologically, it’s a little bit more complicated, which is one of the things I’ve been dealing with in these types of depositions.  But it tends to give a restrictive – pneumoconiosis tends to give a restrictive lung pattern and nodules on the chest x-ray that can coalesce and progress to fibrosis or massive nodular lesions. 

 

Fletcher predominantly has a restrictive process.  Dr. Rosenblum assigned a 45% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition.     

          After reviewing the evidence, the ALJ found the opinion of Dr. Rosenblum most persuasive and determined Fletcher had not presented x-ray evidence of CWP.  This failure precluded an award pursuant to KRS 342.732.  Regarding Fletcher’s occupational disease claim pursuant to KRS 342.316, the ALJ found as follows:

     The undersigned ALJ does believe a coal miner can maintain a claim under KRS 342.316 for an occupational disease other than pneumoconiosis.  However, the plaintiff still has the burden of proof.  The plaintiff must establish an occupational disease other than pneumoconiosis which is governed by KRS 342.732.  In addition, the plaintiff must establish impairment as a result of the occupational disease. 

 

     KRS 342.732 is very specific that it governs benefits for occupational pneumoconiosis resulting from exposure to coal dust.  The ALJ has carefully reviewed the report of Dr. Rosenblum and the deposition of Dr. Rosenblum and he fails to make a diagnosis of a disease other than pneumoconiosis.  He opines the plaintiff has respiratory impairment due to exposure to coal dust.  However, he never identifies a disease other than pneumoconiosis causing the impairment.  It appears to the ALJ that Dr. Rosenblum is essentially finding pneumoconiosis even when there is a negative x-ray.  This, of course, is permissible under the Federal Black Lung Act.  However, KRS 342.732 specifically requires a positive x-ray.  The ALJ would note that if this claim is allowed then the plaintiff’s benefits would be greater for having a negative x-ray than if the x-ray had been positive for pneumoconiosis.  The ALJ finds the plaintiff must establish a disease other than pneumoconiosis to prevail under KRS 342.316.  The plaintiff has therefore failed to carry his burden of proof to establish an occupational disease other than pneumoconiosis and his claim must therefore be dismissed.

 

          Fletcher appealed directly to the Board without filing a petition for reconsideration.  On appeal, Fletcher argues the ALJ erred in dismissing the claim for benefits pursuant to KRS 342.316.  Fletcher concedes KRS 342.732 is applicable exclusively to claimants seeking recovery for CWP.  However, he contends KRS 342.316 permits recovery of benefits in cases involving occupational diseases other than CWP.  Fletcher maintains he has developed restrictive and obstructive lung disease for which he must be compensated pursuant to KRS 342.316.  To deny recovery pursuant to KRS 342.316 is against public policy and contrary to legislative intent.

          As the claimant in a workers’ compensation proceeding, Fletcher had the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because he was unsuccessful in that burden, the question on appeal is whether the evidence compels a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Compelling evidence” is defined as evidence that is so overwhelming, no reasonable person could reach the same conclusion as the ALJ.  REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985) superseded by statute on other grounds as stated in Haddock v. Hopkinsville Coating Corp., 62 S.W.3d 387 (Ky. 2001). 

          “One of the established rules of statutory construction is that when two statutes deal with the same subject matter, one in a broad, general way and the other specifically, the specific statute prevails.” Land v. Newsome, 614 S.W.2d 948, 949 (Ky. 1981).  KRS 342.316 is a general statute concerning occupational disease, while KRS 342.732 is a specific statute covering the occupational disease of CWP.  Thus, the ALJ correctly determined Fletcher must prove either that he has CWP to recover pursuant to KRS 342.732, or that he has some other occupational disease to recover under KRS 342.316.

          The finding that Fletcher has a negative x-ray is fatal to his claim for benefits pursuant to KRS 342.732, which requires a positive reading of at least Category 1/0 for any level of benefits.  Fletcher does not challenge this conclusion.  His entitlement to any benefits therefore depends upon whether the evidence compels a finding he has contracted an occupational disease other than CWP. 

          Fletcher contends he has met his burden by showing he has the general diagnosis of obstructive and restrictive lung disease.  However, the ALJ was not convinced Dr. Rosenblum diagnosed any disease other than CWP.  The ALJ understood Dr. Rosenblum’s testimony to mean Fletcher had CWP but his x-ray reading was not sufficient to meet the statutory requirements to qualify for benefits.  Dr. Rosenblum clearly understood the legal requirements to qualify for CWP benefits under Kentucky law.  However, Dr. Rosenblum noted x-ray evidence is not the best way to define CWP because they are not sensitive enough.  He further noted 10% of interstitial lung diseases have a negative chest x-ray.  Dr. Rosenblum stated CWP can produce both restrictive and obstructive defects.  It appears Dr. Rosenblum’s reference to restrictive and obstructive lung disease is descriptive rather than diagnostic.  Thus, the general statement that Fletcher has obstructive or restrictive lung disease is not sufficient to support a finding Fletcher has an occupational disease other than CWP. 

          As noted by the ALJ, Dr. Rosenblum made no specific diagnosis of a disease other than CWP.  This opinion constitutes substantial evidence supporting the ALJ’s conclusion that Fletcher has CWP, but it has not progressed to the point that sufficient nodulation is apparent on x-rays to meet the statutory threshold for compensation.  The ALJ correctly understood and considered the report and testimony of Dr. Rosenblum.  His interpretation of Dr. Rosenblum’s testimony and report is reasonable, and we therefore cannot say the evidence compels a finding Fletcher has an occupational disease other than CWP.  To the extent Fletcher’s arguments address public policy concerns, these issues are reserved for the General Assembly.    

          Accordingly, the November 21, 2016 Opinion and Order rendered by Hon. R. Roland Case, Administrative Law Judge, is hereby AFFIRMED.

          ALL CONCUR.

 

 

 

 

COUNSEL FOR PETITIONER:

HON JEFFERY HINKLE

PO BOX 1704

INEZ, KY 41224

 

COUNSEL FOR RESPONDENT:

 

HON JEFFREY SOUKUP

PO BOX 2150

LEXINGTON, KY 40588

 

ADMINISTRATIVE LAW JUDGE:

 

HON R. ROLAND CASE

PREVENTION PARK

657 CHAMBERLIN AVE

FRANKFORT, KY 40601

 

 



[1] Fletcher submitted pulmonary function test results purportedly administered by Dr. Srinvasu Ammissety; however, the report is for an individual other than Fletcher.