Magic Coal Co. v. Fox, No. 1999-SC-0163-WC.

Decision Date18 May 2000
Docket NumberNo. 1999-SC-0163-WC.,No. 1999-SC-0509-WC.
Citation19 S.W.3d 88
PartiesMAGIC COAL COMPANY, Appellant, v. Ronnie FOX; Zaring P. Robertson, Administrative Law Judge; and Workers' Compensation Board, Appellees. Peabody Coal Company, Appellant, v. Billy Gene Hawes; Eddie Bealmear; Sheila C. Lowther, Administrative Law Judge; and Workers' Compensation Board, Appellees.
CourtUnited States State Supreme Court — District of Kentucky

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John C. Morton, Samuel J. Bach, Morton & Bach, Henderson, for Appellant Magic Coal Co.

Philip J. Reverman, Boehl, Stopher, & Graves, William P. Swain, Phillips, Parker, Orberson, & Moore, P.L.C., Louisville, for Appellant Peabody Coal Co.

John S. Sowards, Jr., Wilson, Sowards, Bowling, & Costanzo, Lexington, for Appellee Fox.

A. V. Conway, II, Hartford, for Appellee Hawes.

Harry R. Hinton, Madisonville, for Appellee Bealmear.

OPINION OF THE COURT

These workers' compensation appeals concern the portion of KRS 342.315(2) which became effective December 12, 1996, and which states that the findings and opinions of designated university medical evaluators "shall be afforded presumptive weight." At issue is whether the amendment governs claims which arose before its effective date.

The 1996 version of KRS 342.315 provides, in pertinent part, as follows:

(1) The commissioner shall contract with the University of Kentucky and the University of Louisville medical schools to evaluate workers who have had injuries or become affected by occupational diseases covered by this chapter. Referral for evaluation may be made to one (1) of the medical schools whenever a medical question is at issue.

(2) The physicians and institutions performing evaluations pursuant to this section shall render reports encompassing their findings and opinions in the form prescribed by the commissioner. The clinical findings and opinions of the designated evaluator shall be afforded presumptive weight by arbitrators and administrative law judges and the burden to overcome such findings and opinions shall fall on the opponent of that evidence. When arbitrators or administrative law judges reject the clinical findings and opinions of the designated evaluator, they shall specifically state in the order the reasons for rejecting that evidence.

Two other amendments which became effective on December 12, 1996, also are relevant to a consideration of the question at issue. KRS 342.0015 provides, in pertinent part, that the "procedural provisions" of the 1996 Act "shall apply to all claims irrespective of the date of injury or last exposure, including, but not exclusively, the mechanisms by which claims are decided and workers are referred for medical evaluations." KRS 342.316(3)(b)4.b. provides that the arbitrator to whom an occupational disease claim is assigned "shall" refer the worker to a university evaluator for examination. There is no comparable requirement concerning injury claims, leaving it to the discretion of the factfinder whether to order an evaluation in a given case. These appeals both involve retraining incentive benefit (RIB) claims.

Magic Coal Co. v. Fox:

The claimant was employed in the coal mining industry for over 19 years and last worked in March, 1992. In February, 1997, he filed a claim for a RIB. Among the contested issues was whether he suffered from coal workers' pneumoconiosis and whether the university medical expert's report was entitled to presumptive weight pursuant to KRS 342.315. Evidence of the presence of the disease was conflicting, and the report of the university evaluator was negative. In a decision rendered on September 9, 1997, the Administrative Law Judge (ALJ) determined that, to the extent that it afforded presumptive weight to the findings and opinions of university evaluators, the 1996 amendment to KRS 342.315 was substantive and should not be applied to a claim which arose before the amendment's effective date. The ALJ indicated that the credentials of all of the expert witnesses were worthy of respect but chose to rely upon the claimant's witnesses and awarded a RIB.

This appeal was considered by the Workers' Compensation Board (Board) together with several others, including Peabody Coal Co. v.. Hawes and Peabody Coal Co. v. Bealmear. The Board rejected the argument that KRS 342.314(2) simply shifts the burden of going forward with proof to the party who opposes the evaluator's report, indicating that such a construction would render the amendment ineffectual. The Board determined, instead, that the amendment creates a rebuttable presumption which favors the university evaluator's opinion, which represents an alteration in the overall burden of proof placed upon the parties, and which is substantive in nature. For that reason, the Board concluded that the findings and opinions of university evaluators should not be given "presumptive weight" in those claims which arose before December 12, 1996. The Court of Appeals affirmed the Board.

Magic Coal Co. (Magic) emphasizes that this is a RIB claim which, unlike a claim for income benefits, is controlled by the law on the date of filing rather than the law on the date of last exposure. Breeding v. Colonial Coal Co., Ky., 975 S.W.2d 914 (1998). This claim was filed after December 12, 1996; therefore, Magic asserts, the December 12, 1996, amendments to Chapter 342 controlled the claim. Second, Magic argues that KRS 342.315(2) does not alter the burden of proof but is a procedural mechanism to ensure the ALJ's reliance upon impartial expert testimony "when alternative medical testimony is not particularly convincing." Emphasizing that the presumption is rebuttable, not conclusive, it argues that the presumption is procedural in nature. See Boggs v. Blue Diamond Coal Co., 497 F.Supp. 1105 (1980); General Refractories Co., Inc. v. Henderson, Ky., 232 S.W.2d 846 (1950).

Claimant responds that in the absence of specific language to the contrary, the meaning of "presumptive weight" should be dictated by KRE 301. In the alternative, he argues that if the Board's construction of the term is correct, the amendment is substantive and should not be applied in instances where the injury or last exposure occurred before the amendment's effective date. Finally, claimant raises four arguments against the constitutionality of the provision in the event that it is construed as restricting the authority of the ALJ to weigh conflicting medical evidence.

Peabody Coal Co. v. Hawes, et. al.:

This appeal involves two different RIB claims. They were filed against Peabody Coal Co. (Peabody) by Billy Gene Hawes and by Eddie Bealmear. In each instance, the last exposure occurred before December 12, 1996, and a RIB claim had been filed and was pending before the ALJ on December 12, 1996. It is undisputed that the pre-December 12, 1996, version of the Act was the controlling substantive law. In each instance, the ALI determined that the "presumptive weight" provision was procedural in nature and did apply to the claim. The ALJ also determined, in each instance, that the worker had introduced favorable evidence from two well respected pulmonary specialists, one of whom was the only expert who had actually examined the worker as well as read an x-ray. In each instance, the ALJ was persuaded that the evidence offered by the worker overcame the testimony of the university evaluator. The Board affirmed the result on the basis that the presumptive weight provision was substantive, and the Court of Appeals affirmed.

The questions presented on appeal concern whether the amendment is procedural or substantive. If the amendment is procedural, a question arises concerning the type of evidence which is necessary to overcome the presumptive weight of a university evaluator's testimony. No constitutional question is raised.

As a general rule, the law in effect on the date of injury or last injurious exposure is deemed to control a worker's rights and an employer's obligations with regard to any claim arising out of and in the course of the employment. Although a retraining requirement was adopted in 1994, KRS 342.732(1)(a) permitted workers who continued to be employed in the mining industry to receive a RIB; therefore, there was no date of last exposure from which to fix the rights of the parties with regard to RIB claims filed by working miners. In Arch of Kentucky, Inc. v. Thomas, Ky., 895 S.W.2d 578 (1995), the Court determined that, unlike other claims for occupational disease, RIB claims were payable at the rate in effect on the date the claim was filed.

With regard to the appeals which are presently at issue, Hawes' and Bealmear's last exposure to coal dust occurred before December 12, 1996, and their RIB claims had been filed and were pending before the ALJ on December 12, 1996. Fox's last exposure occurred before December 12, 1996, but his RIB claim was filed after December 12, 1996. The Board rendered a decision on all three claims on January 30, 1998. On July 23, 1998, during the pendency of the employers' appeals to the Court of Appeals, this Court rendered a decision in Breeding v. Colonial Coal Co., Ky., 975 S.W.2d 914 (1998).

Breeding concerned a RIB claim which was filed in 1995 by a worker who had retired from the mining industry in 1991. The 1996 amendments were enacted during the pendency of the appeal to the Board. When the appeal was before the Court of Appeals, the employer asserted for the first time that the December 12, 1996, version of KRS 342.732(1)(a) was remedial and controlled the claim. Relying upon Arch of Kentucky, Inc. v. Thomas, supra, we determined that the law on the date the claim was filed controlled the worker's entitlement to a RIB and noted that the claim would be subject to a remedial amendment which became effective during its pendency before the ALJ. We concluded, however, that the ALJ could not have erred by failing to apply an amendment which became effective after the decision was entered. W...

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