Bethenergy Mines, Inc. v. Easterling, s. 88-CA-560-
| Decision Date | 21 July 1989 |
| Docket Number | 88-CA-719-S and 88-CA-1010-S,Nos. 88-CA-560-,s. 88-CA-560- |
| Citation | 776 S.W.2d 842 |
| Parties | BETHENERGY MINES, INC., Appellant, v. James F. EASTERLING, Deceased; Myrtle M. Easterling, Widow and Administratrix; Carol Palmore, Secretary of Labor Cabinet; and Workers' Compensation Board of Kentucky, Appellees. Larry D. BEALE, Director of Special Fund, Appellant, v. BETHENERGY MINES, INC.; James F. Easterling, Deceased; Myrtle M. Easterling, Widow; and Workers' Compensation Board of Kentucky, Appellees. Janice BLAIR, Widow and Dependent of Gernade Blair, Deceased, Appellant, v. SOUTHEAST COAL COMPANY; Hon. John Calhoun Wells, Secretary of Labor Cabinet and Custodian of Special Fund; Special Fund; and Workers' Compensation Board of Kentucky, Appellees. |
| Court | Kentucky Court of Appeals |
Bennett Clark, Stoll Kennon & Park, Lexington, for Bethenergy Mines.
Stephen W. Owens, Kelsey Friend Law Firm, Pikeville, for Easterlings and Blair.
James D. Asher, Whitesburg, for Southeast Coal Co.
Robert L. Whittaker, Labor Cabinet, Frankfort, Denis S. Kline, Labor Cabinet, Louisville, for Special Fund.
Before ELSWICK, HAYES and HOWARD, JJ.
Bethenergy Mines, Inc. [Bethenergy] and the Special Fund appeal from a judgment entered in Pike Circuit Court affirming an opinion and supplemental opinion of the Workers' Compensation Board. In a similar case, Janice Blair appeals from a judgment of the Letcher Circuit Court, affirming a decision of the board.
James F. Easterling was a 56-year-old employee of Bethenergy when he sustained a fatal heart attack on August 5, 1985. At the time of his death he was a belt cleaner and had just finished lunch. His widow filed a workers' compensation claim in October, based on the heart attack and on the existence of pneumoconiosis. In an opinion and award rendered September 21, 1987, the board rejected the heart attack claim, finding it to be unrelated to the work. The board did, however, award benefits to the widow and minor son, based on the deceased's life expectancy for total, permanent disability as a result of the pneumoconiosis. In a supplemental opinion and order rendered December 7, 1987, the board made additional findings, holding that the deceased did have an occupational disability in terms of loss of job opportunity, even though he continued to work up until the time of his death. The board elaborated that had the deceased voluntarily ceased employment with Bethenergy prior to his death and then sought employment with another coal company, he would likely have been unsuccessful in obtaining employment because of the positive diagnosis of pneumoconiosis.
In a consolidated appeal to the Pike Circuit Court, the court adopted the findings of the board and dismissed the appeals of Bethenergy and the Special Fund. These appeals followed. The issue presented on appeal is whether the deceased's dependents are entitled to benefits when the deceased continued to work for the same employer up until the time of his death, which was not work related, and where the medical evidence demonstrated only an early stage of pneumoconiosis.
Reviewing courts are prohibited from reversing a decision of the board unless its ruling is clearly erroneous based on the record as a whole. KRS 342.285(3) provides that on review courts shall not substitute their judgment for that of the board as to the weight of the evidence on questions of fact. The general rule is that any finding of the board will not be set aside on appeal if there is substantial evidence of probative value to support the award. Holman Enterprise Tobacco Wrhse. v. Carter, Ky., 536 S.W.2d 461 (1976). Dealers Transport Co. v. Thompson, Ky.App., 593 S.W.2d 84 (1979).
KRS 342.730(3) governs income benefits to the surviving spouse and minor children where the employee dies from a cause unrelated to his work:
(3) When an employe, who has sustained disability compensable under this section, and who has filed, or could have timely filed, a valid claim in his lifetime, dies from causes other than the injury before the expiration of the compensable period specified, the income benefits specified and unpaid at the individual's death, whether or not accrued or due at his death, shall be paid, under an award made before or after such death, for the period specified in this section, to and for the benefits of the persons within the classes at the time of death and in the proportions and upon the conditions specified in this section and in the order named:
(a) To the widow or widower, if there is no child under the age of eighteen (18) or incapable of self-support; or
(b) If there are both such a widow or widower and such a child or children, one-half to such widow or widower and the other half to such child or children;
The key word in this case is "disability." 1 If there was no disability there can be no claim for benefits.
It is well settled that the fact an employee continues to work does not affect entitlement to workers' compensation benefits. He still may be found to have an active, occupational disability.
The test is not whether the employe is working, but how much, if any, occupational disability, by the standards employed in determining allowance for workman's compensation benefits, the employe's condition evidenced immediately before he received the second injury.
Griffin v. Booth Memorial Hospital, Ky., 467 S.W.2d 789, 790 (1971). Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968). However, these cases do not cover the situation where, as here, the employee continues to work in full employment for the same employer after the occupational disease manifests itself. Mrs. Easterling testified that her late husband, who had worked in coal mines for 38-40 years, had been experiencing shortness of breath for the previous two years.
In Allen v. Commonwealth, Dept. of Highways, Ky., 425 S.W.2d 283, 284 (1968), it was held that the word "disability" as it is used in the occupational disease statute, KRS 342.316, is construed to mean that an employee "cannot have a compensable claim for any period of time in which he has continued and continues to work full-time for the same employer." Similarly, in Yocom v. Karst, Ky., 528 S.W.2d 697, 700 (1975), the rule in Allen was explained as establishing a "conclusive presumption of nondisability, in occupational disease cases, so long as the workman continued in full-time employment by the same employer." See also Bethlehem Mines Corp. v. Davis, Ky., 368 S.W.2d 176 (1963); Mary Helen Coal Corp. v. Chitwood, Ky., 351 S.W.2d 167 (1961) and Alva Coal Corp. v. Trosper, Ky., 375 S.W.2d 406 (1964). Yocom also holds that the key to the Allen case is "continuation" in employment, and once employment ceases, the hook on which the presumption hangs is gone. It is only then that the question of his ability to compete in the labor force is put in issue.
It is interesting to note that the board based its decision solely on the existence of the disease and its opinion that the deceased, had he quit his employment prior to his death, would have had difficulty obtaining employment with another coal company. Not only was his employability irrelevant because of Yocom, supra, there was no testimony of his ability to compete in the labor market. The board merely assumed that this would be the case, thereby finding him 100% totally disabled.
Mrs. Easterling argues that American Radiator & Standard Sanitary Corp. v. Gerth, Ky., 375 S.W.2d 817 (1964) entitles her to benefits. In that case, the employee had contracted silicosis but continued in full employment up until the time of his heart attack at work. Benefits were permitted to the widow. However, the heart attack in that case was found to have arisen out of and in the course of his employment. In addition, it was also found that the heart attack was an outgrowth of and resulted from the silicosis. In the case before us, the heart attack was not found to be related to the employment, or to the occupational disease.
Mrs. Easterling also relies on Larson, Workers' Compensation Law Sec. 78.62 (1989), for the rule that the failure of the employee to make a claim for disability prior to his death, thereby giving notice to his employer, does not bar the surviving spouse and child from making a claim after this death. We agree with this statement. However, the cases which deal with this rule cover the situation where the cause of death was the occupational injury or disease, and the employee's claim for disability, had he lived, would have been barred by the applicable limitations period. Those cases hold that in that situation the dependents may still file a claim for death benefits as their right is independent from the deceased's.
The facts in the case before us are markedly different. We are not dealing with KRS 342.750, which governs income benefits for death caused by the work-related injury or disease; the applicable statute is KRS 342.730, governing situations where the employee sustained a disability within the meaning of the statute and could have timely filed a claim before he died from causes other than the occupational injury or disease. Even under this statute, there can still be no claim for disability by anyone unless there is, in fact, a disability. Moreover, Mrs. Easterling's authority, American Radiator, supra, at 818-819, recognizes the foregoing principles and refers to Mary Helen Coal Corp., Bethlehem Mines Corp., supra, and Stephens Elkhorn Coal Co. v. Tibbs, Ky., 374 S.W.2d 504 (1964) in making the following conclusion:
The net effect of our decisions on this subject is that so long as a person who has contracted an occupational disease remains in the full-time service of the same employer he does not have a disability and therefore does not have a claim. His disability occurs and his claim arises when his full-time employment ends. Gerth's...
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