Arch of Kentucky, Inc. v. Thomas, 94-SC-641-WC

• Decision Date: 23 March 1995
• Docket Number: No. 94-SC-641-WC,94-SC-641-WC
• Citation: 895 S.W.2d 578
• Parties: ARCH OF KENTUCKY, INC., Appellant, v. James THOMAS; Vicki Newberg, Acting Director of Special Fund; George S. Schuhmann, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 578

895 S.W.2d 578

ARCH OF KENTUCKY, INC., Appellant, v. James THOMAS; Vicki Newberg, Acting Director of Special Fund; George S. Schuhmann, Administrative Law Judge; and Workers' Compensation Board Appellees.

No. 94-SC-641-WC.

Supreme Court of Kentucky.

March 23, 1995.

Kent Hendrickson, Rice & Hendrickson, Harlan, for appellant.

Johnnie Turner and James M. Kennedy, Buttermore, Turner & Boggs, PSC, Harlan, for appellee Thomas.

Joel D. Zakem, Labor Cabinet--Special Fund, Louisville, for appellee Newberg.

OPINION OF THE COURT

The issue in this workers' compensation case involves the date for determining the benefit rate for retraining incentive benefits awarded to working miners. In that event, there is no date of last exposure. The Administrative Law Judge applied the common practice of determining the rate as of the date the claim is filed when the worker is still employed. The Workers' Compensation Board and the Court of Appeals affirmed.

We are satisfied that the solution reached below is sound. We hereby affirm and adopt the opinion of the Court of Appeals. "BEFORE: HOWERTON, McDONALD, AND SCHRODER, Judges. "HOWERTON, JUDGE. Arch of Kentucky, Inc. petitions for review of a Workers' Compensation Board award of $142.50 per week to James Thomas for retraining incentive benefits (RIB). Arch argues that the benefit rate awarded was the rate for injuries occurring in 1992 and that because Thomas' injuries were sustained in 1991, the 1991 rate should apply. We find no error by the Board and affirm.

"Thomas filed an application for adjustment of claim for coal workers' pneumoconiosis in April of 1992. In his opinion dated November 23, 1992, the Administrative Law Judge (ALJ) found Thomas was entitled to RIB pursuant to KRS 342.732(1)(a) and awarded RIB at the 1992 rate.

"Arch subsequently filed a motion for reconsideration in which it contended that the award to Thomas should have been at the rate payable for 1991 injuries. It was argued that, because Dr. William Anderson had diagnosed Thomas as having coal workers' pneumoconiosis on September 18, 1991, 1991 should be considered the date of his 'injury.'

"The ALJ denied Arch's petition for reconsideration stating that it was common practice in RIB awards to use the date the claim was filed to fix the rate at which compensation is due. The Board affirmed, rejecting Arch's argument that under the holding of Maggard v. International Harvester Co., Ky., 508 S.W.2d 777 (1974), the law in effect on the date of the injury or the date of last exposure fixes the rights of the claimant.

"KRS 342.732, the statute which sets out the provisions for RIB, reads in pertinent part as follows:

"Notwithstanding any other provision of this chapter, income benefits and retraining incentive benefits for occupational pneumoconiosis resulting from exposure to coal dust shall be paid as follows:

"(a) If the administrative law judge finds that an employee has a radiographic classification of category 1/0, 1/1, or 1/2, based on the latest ILO International Classification of Radiographics, resulting from exposure to coal dust, which is validated by two (2) X-rays and reports of the X-rays which conform to the standards for X-rays contained in subsection (2) of KRS 342.316, he shall award a one (1) time only retraining incentive benefit which shall be an amount equal to sixty-six and two-thirds percent (66 2/3%) of the employee's average weekly...