Breeding v. Colonial Coal Co.

• Decision Date: 23 July 1998
• Docket Number: No. 98-SC-67-WC,98-SC-67-WC
• Citation: 975 S.W.2d 914
• Parties: Clair BREEDING, Appellant, v. COLONIAL COAL COMPANY; Richard H. Campbell, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 914

975 S.W.2d 914

Clair BREEDING, Appellant, v. COLONIAL COAL COMPANY; Richard H. Campbell, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 98-SC-67-WC.

Supreme Court of Kentucky.

July 23, 1998.

Rehearing Denied Oct. 15, 1998.

Dennis James Keenan, III, Anderson, Hinkle, Keenan, and Childers, P.S.C., South Williamson, for Appellant.

Hon. Kimberly Sue May-Downey, Penelope Justice Turner, Robinette and Associates, Attorneys at Law, P.S.C., Pikeville, for Appellee Colonial Coal Co.

OPINION OF THE COURT

After suffering a heart attack, claimant chose to retire from coal mining in December, 1991. By virtue of his age, he was eligible for and began collecting social security retirement benefits. On December 18, 1995, he filed a claim for a retraining incentive benefit (RIB). The Administrative Law Judge (ALJ) was persuaded that claimant suffered from category 1 pneumoconiosis. The ALJ noted that the record would not support a finding that claimant's heart attack rendered him incapable of vocational rehabilitation; however, since claimant was no longer employed, an award would not serve as an inducement for him to leave the mining industry. See Arch of Kentucky, Inc. v. Halcomb, Ky., 925 S.W.2d 460 (1996). Therefore, the claim was dismissed. Claimant appealed. ¹

The Workers' Compensation Board (Board) determined that Halcomb did not apply to these facts since claimant had voluntarily retired, and there was no evidence that he was totally disabled by his heart condition. The Board explained that Halcomb established only that a worker who was totally disabled was not eligible for a RIB. It did not require a finding concerning whether the benefit induced the worker to seek employment outside the mining industry. Accordingly, the Board reversed the decision and remanded the claim for the entry of a RIB award.

The employer appealed to the Court of Appeals, arguing that the Board's interpretation of Halcomb was incorrect and that the claim was properly dismissed. Although the Court of Appeals reversed the decision of the Board and reinstated the ALJ's dismissal of the claim, it did not address the arguments raised by the employer in its petition for review. Instead, the decision was based upon the court's determination that the 1996 amendment to KRS 342.732(1)(a) was remedial and applied to all claims pending on or after its effective date. In explaining the rationale for its determination, the court noted that the restrictions imposed by the 1994 amendment to the statute had been found to be remedial and had been applied to all claims pending on or after its effective date. See Thornsbury v. Aero Energy, Ky., 908 S.W.2d 109 (1995). The Court of Appeals reasoned that since the 1996 amendment imposed further restrictions on the receipt of a RIB, the 1996 amendment also was remedial and should be applied to all claims pending on or after its effective date, including the present claim.

Claimant appeals, arguing that a question concerning the applicability of the 1996 amendment to KRS 342.732(1)(a) was never raised by the employer and that the matter was not preserved for review by the Court of Appeals. Claimant also argues that the legislature explicitly indicated its intent to limit application of the 1996 amendment to claims involving a "last exposure to the hazards of an occupational disease occurring on or after December 12, 1996," that KRS 342.732 is not among those provisions of the 1996 Act which the legislature designated as remedial, and that the amendment is not remedial. KRS 342.0015. Finally, claimant argues that the Board was correct in distinguishing Halcomb from the instant case and in remanding the claim for the entry of an award.

The employer concedes that the question of whether the 1996 amendment was remedial and, therefore, applicable to claims which arose before its effective date was not raised in its brief to the Court of Appeals. However, it argues that the 1996 amendment is remedial and cites this Court's decisions in Smith v. Dixie Fuel Co., Ky., 900 S.W.2d 609 (1995), and Wheatley v. Bryant Auto Service, Ky., 860 S.W.2d 767 (1993), as authority for the proposition that the claim should be remanded, reopened, and the decision corrected in order to conform to the Court of Appeals' conclusion in that regard. The employer also argues that the Board erred in distinguishing the present case from Halcomb.

It is well settled that the law on the date of filing a claim for RIB controls the applicant's entitlement to the benefit and, therefore, is the law under which the ALJ must reach a decision on the claim. Arch of Kentucky, Inc. v. Thomas, Ky., 895 S.W.2d 578 (1995). However, that general rule is subject to the exception that those amendments to the law which are remedial in nature and which become effective during the pendency of the claim may be applied to the claim. See Thornsbury v. Aero Energy. After a claim has been decided, KRS 342.285 permits an aggrieved party to appeal the decision to the Board, at which time the Board is authorized to review the decision and to determine whether or not it conforms to the applicable provisions of Chapter 342. Obviously, even remedial changes in the law which do not become effective until after an ALJ has reached a decision on a claim could not be a proper basis for determining that the decision was erroneous. ² Therefore, regardless of whether the 1996 amendment is remedial, it does not apply to this claim since the claim had already been decided and was no longer pending on the effective date of the amendment.

Any party who seeks to appeal a decision of the Board to the court system must have...