Kiser v. Bartley Min. Co.

• Decision Date: 23 April 1965
• Citation: 397 S.W.2d 56
• Parties: George KISER, Appellant, v. BARTLEY MINING COMPANY et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 56

397 S.W.2d 56

George KISER, Appellant, v. BARTLEY MINING COMPANY et al., Appellees.

Court of Appeals of Kentucky.

April 23, 1965.

Rehearing Denied and Dissenting Opinion Filed Dec. 17,

1965.

Kelsey E. Friend, Friend & Mullins, Pikeville, for appellant.

John M. Stephens, Stephens, Combs & Page, Pikeville, for appellees.

CULLEN, Commissioner.

In this workmen's compensation case the employe was given an award for 50 percent permanent partial disability resulting from a silicotic condition. On appeal the circuit court set aside the award on the ground that the claim was barred under KRS 342.185.

The appellant employe was last employed as a coal miner in November 1957. In October 1960 he was informed by a doctor that he had contracted the disease of silicosis. In July 1961 he filed his claim for compensation.

At the time appellant's employment ceased there were on the statute books two provisions of workmen's compensation law fixing different limitation periods. KRS 342.316(3) provided in part as follows:

'The right to compensation under this chapter for disability resulting from an occupational disease shall be forever barred unless a claim is filed with the Workmen's Compensation Board within one year after the last injurious exposure to the occupational hazard or after the employe first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease, whichever shall last occur; * * *.' (Our emphasis.)

KRS 342.185 provided in part:

'* * * In cases of the disease of silicosis, caused by the inhalation of silica dust, no application for compensation shall be considered unless notice is given and claim is made within three years after the last injurious exposure to silica dust.' (Our emphasis.)

It will be noted appellant's claim was filed within time under the first above quoted statute, but it was too late under the last quoted statute. It is appellant's position that although KRS 342.185 continued to be carried on the statute books, actually it had been impliedly repealed in 1956 by an amendment of that year to KRS 342.316. It is contended that we so decided in Osborne Mining Company v. Davidson, Ky., 339 S.W.2d 626. That case did not involve the question we have here because the employe's claim was timely filed under both statutes. Some rather casual language of the opinion, used in the discussion of the history of these statutes, cannot and should not be interpreted as an authoritative holding that KRS 342.185 was impliedly repealed by the 1956 amendment to KRS 342.316.

We find it unnecessary in this case to determine the question of whether KRS 342.185 was impliedly repealed in 1956, because it is our opinion that the limitation imposed by that section against the instant appellant's claim was effectively removed by a 1960 amendment to the section, effective June 16, 1960, which deleted the limiting language. That amendment became effective before the three-year limitation period had run against appellant's claim.

Some jurisdiction hold that an amendment to a workmen's compensation law extending the period of limitations on a claim should not be construed as being applicable to claims that arose before the amendment took effect. See Annotation, 79 A.L.R.2d 1109 to 1113. But the majority view is that such an amendment properly may be considered applicable to claims that arose before the amendment, where the previously existing limitation had not run on those claims at the time the amendment became effective. See Annotation, 79 A.L.R.2d 1100 to 1104. We think the majority view is sound and we adopt it.

It is our conclusion that appellant's claim should not have been held to be barred by KRS 342.185, since the limitation imposed by that statute was deleted before it had run.

In the circuit court, appellant attempted by 'counterclaim' to assert error by the Workmen's Compensation Board in awarding him compensation only for partial, rather than total disability. However, the counterclaim was not asserted within the 20-day period allowed by KRS 342.285 for taking an appeal, and therefore it was too late. Cf. Keeney v. Commonwealth Dept. of Highways, Ky., 345 S.W.2d 481; Scott v. Alaska Industrial Board, 123 F.Supp. 361, 15 Alaska 146; Associated Indemnity Corp. v. Marshall, 9 Cir., 71 F.2d 235.

The judgment is reversed with directions to enter judgment affirming the order of the Workmen's Compensation Board.

STEWART, Judge (dissenting).

I dissent from the opinion because it holds, erroneously I believe, that the three-year limitation period of KRS 342.185, applicable in 1957, was removed by KRS 342.316(3), the amendment of 1960.

The opinion is to the effect that, as ...