Vision Mining, Inc. v. Gardner

• Decision Date: 22 December 2011
• Docket Number: Nos. 2010–SC–000311–WC, 2010–SC–000438–WC.,s. 2010–SC–000311–WC, 2010–SC–000438–WC.
• Citation: 364 S.W.3d 455
• Parties: VISION MINING, INC., Appellant, v. Jesse GARDNER, et al., Appellees. and Peabody Coal Company, Appellant, v. Joe Martinez, et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

364 S.W.3d 455

VISION MINING, INC., Appellant,
v.
Jesse GARDNER, et al., Appellees.
and
Peabody Coal Company, Appellant,
v.
Joe Martinez, et al., Appellees.

Nos. 2010–SC–000311–WC, 2010–SC–000438–WC.

Supreme Court of Kentucky.

Rehearing Denied May 24, 2012.
Dec. 22, 2011.

Held Unconstitutional

KRS 342.316(3), 342.316(13)

[364 S.W.3d 456]

Anthony Kenneth Finaldi, John Edward Ballerstedt, Jr., Ferreri & Fogle, PLLC, Louisville, KY, Counsel for Appellant, Vision Mining, Inc.

Peter J. Glauber, Boehl, Stopher, & Graves, LLP, Louisville, KY, Counsel for Appellant, Peabody Coal Company.

Thomas E. Springer, III, Springer Law Firm, PLLC, Madisonville, KY, Counsel for Appellees, Jesse Gardner and Joe Martinez.

Douglass Wayne Gott, Pushin Building, Bowling Green, KY, Counsel for Appellee, Hon. Douglas W. Gott, Administrative Law Judge.

Russell Scott Borders, Florence, KY, Counsel for Appellee, Hon. R. Scott Borders, Administrative Law Judge.

Dwight Taylor Lovan, Executive Director, Office of Workers' Claims, Frankfort, KY, Counsel for Appellees, Workers' Compensation Board and Dwight Taylor Lovan, Commissioner, Department of Worker's Claims.

Jack Conway, Attorney General, Frankfort, KY, Counsel for Appellee, Hon. Jack Conway, Attorney General of the Commonwealth of Kentucky.

Christopher H. Smith, Kentucky Labor Department, Frankfort, KY, Counsel for Appellee, Christopher J. Smith, Executive Director, Office of Workplace Standards, Kentucky Labor Department.

Peter J. Naake, Louisville, KY, Counsel for Amicus Curiae, United Mine Workers of America, Kentucky Chapter of American Federation of Labor and Congress of

[364 S.W.3d 457]

Industrial Organizations (AFL–CIO), Appalachian Citizens' Law Center, and Kentucky Workers' Association.

Opinion of the Court by Justice SCOTT.

Notwithstanding their 37 and 34 years' work in underground coal mines, the Workers' Compensation Board affirmed decisions to dismiss both Appellants' applications for benefits because the “consensus readings” of their X-rays interpreted them to be negative for coal workers' pneumoconiosis (black lung).¹ On review, however, two separate Court of Appeals' panels held the “consensus procedure” required by KRS 342.316 for proving the existence of coal workers' pneumoconiosis and the “clear and convincing” standard the statute requires to rebut such a consensus unconstitutional.

In so doing, both panels of the Court of Appeals determined that such provisions denied the claimants and other workers who suffer from coal workers' pneumoconiosis equal protection under the law by placing a more stringent burden of proof on them than those who suffer from pneumoconiosis from other sources. Having heard these two cases together and having extensively reviewed their records and histories, we agree with the conclusions of the Court of Appeals.

I. PNEUMOCONIOSIS AND WORKERS' COMPENSATION

These appeals involve an equal protection challenge to KRS 342.316, which defines the evidentiary procedure and standard for coal workers' pneumoconiosis claims. As a result, before delving into their background, we believe it prudent to address the distinctions, if any, between coal workers' pneumoconiosis (contracted from coal dust) and pneumoconiosis contracted from other dusty particulates, as well as to outline the differing statutory treatment of coal workers' pneumoconiosis versus other pneumoconiosis.

A. Pneumoconiosis

Although the disease is given different names depending upon the source of the dust, there is no “natural” or “real” medical distinction between coal workers' pneumoconiosis and other occupational pneumoconiosis:

“Pneumoconiosis” is simply a generic term for a lung disease evidenced by pigmentation and fibroid induration. The disease is traceable to not only coal dust, but other types of dust particles as well. Some of these include: aluminum (aluminosis), asbestos (asbestosis), cotton dust (byssinosis), iron (siderosis), sandstone (silicosis), tobacco (tabacosis), and ostrich feathers (ptilosis). The fact that these many other environmental sources of particles also cause pneumoconiosis is the proverbial fly in the ointment for this legislative scheme. There is no medical evidence whatever that any characteristic of disease, itself, supports

[364 S.W.3d 458]

a “natural” or “real” distinction in the class of workers who contract it, based on whether the employee was a coal miner or custodian of the ostrich cage at the Louisville Zoo.

Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d 446, 458 (Ky.1994) (Stephens, C.J., dissenting). Simply put, “pneumoconiosis is pneumoconiosis is pneumoconiosis.” Id. at 456 (quotation marks omitted); see alsoStedman's Medical Dictionary 1522 (28th ed.2006) (describing pneumoconiosis as “[i]nflamation commonly leading to fibrosis of the lungs caused by the inhalation of dust incident to various occupations....”).

B. Statutory Treatment

Despite the fact that there is no real distinction between the various forms of pneumoconiosis, Chapter 342 of the Kentucky Revised Statutes treats coal workers differently than those from other occupations with respect to workers' compensation.² Specifically, these varying claimants endure different procedures and presumptions and enjoy distinct benefits.

1. Procedure and Presumptions

For coal workers' pneumoconiosis, KRS 342.316(3) requires a different procedure to establish its existence than it requires for all other types of pneumoconiosis. In addition, KRS 342.316(13) requires “clear and convincing” evidence to rebut a panel consensus for coal workers' pneumoconiosis claims, while KRS 342.315(2)—addressing other occupational pneumoconiosis and diseases—requires only “a reasonable basis” to rebut a university evaluator's clinical findings and opinions, i.e. a standard lower than “clear and convincing.” Magic Coal Co. v. Fox, 19 S.W.3d 88, 95 (Ky.2000).

a. The Procedure for Coal Miners

In the first instance, KRS 342.316(3) requires a two-step “consensus” procedure for evaluating X-ray evidence of coal workers' pneumoconiosis. Hunter Excavating v. Bartrum, 168 S.W.3d 381, 382 (2005). Pursuant to this statute, a claimant must submit an X-ray, along with an interpretation of that X-ray. KRS 342.316(3)(b)1. The employer may then submit its own X-ray and interpretation. KRS 342.316(3)(b)4.d. If the two interpretations do not agree, the highest quality X-ray is sent to a panel consisting of three individual “B” readers,³ chosen at random, who issue their own interpretation. KRS 342.316(3)(b)4.e. If a consensus is not reached by the panel,^4,5

[364 S.W.3d 459]

the ALJ renders a decision based on the evidence submitted. Id. If, however, as is often the case, there is a consensus,⁶ copies of the report are considered as evidence. Id. For all practical purposes, this consensus is the only evidence controlling the result.

To encourage a consensus among the three randomly selected “B” readers, KRS 342.794(4) provides that the “readers” are evaluated not only with respect to the timeliness and completeness of their reports, but also as to “the frequency at which the physician's classification of X-rays differs from the consensus reading.” In fact, the statute compels removal of a physician “from the ‘B’ reader list ... if the physician's interpretations of X-rays are not in conformity with the consensus reading fifty percent (50%) of the time.” Id. (emphasis added).

Secondly, once a consensus is reached by at least two of the three chest X-ray interpreters, it is presumptively correct “unless overcome by clear and convincing evidence.” KRS 342.316(13). In Fitch v. Burns, 782 S.W.2d 618, 622 (Ky.1989), this Court concluded that “this approach requires the party with the burden of proof to produce evidence substantially more persuasive than a preponderance of evidence, but not beyond a reasonable doubt.” However, beyond establishing the boundaries (somewhere between preponderance of evidence and beyond a reasonable doubt), the Court asserted that it could provide no definition or guideline as to how a court should apply. this evidentiary standard:

We conclude that where the “burden of persuasion” requires proof by clear and convincing evidence, the concept relates more than anything else to an attitude or approach to weighing the evidence, rather than to a legal formula that can be precisely defined in words. Like “proof beyond a reasonable doubt,” “proof by clear and convincing evidence” is incapable of a definition any more detailed or precise than the words involved.

Id. (emphasis added). Yet, in other instances, we have defined the standard as “proof of a probative and substantial nature carrying the weight of evidence sufficient to convince ordinarily prudent-minded people.” See, e.g., Commonwealth Cabinet for Health and Family Services v. T.N.H., 302 S.W.3d 658, 663 (Ky.2010) (citation omitted); see alsoBlack's Law Dictionary 636 (9th ed.2009) (defining “clear and convincing evidence” as “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”).

In the context of coal workers' pneumoconiosis claims, the decision of the ALJ in the Gardner claim demonstrates that additional X-ray evidence, testimonial evidence as to increasing difficulty breathing, and over 37 years' work in underground mining, did not constitute “clear and convincing evidence” sufficient to rebut the consensus reached by two chest X-ray interpreters. See infra Section II.A. Thus, as indicated, overcoming the presumption

[364 S.W.3d 460]

created by a “B” reader consensus is practically impossible.^7,8

b. The Procedure for Other Pneumoconiosis Claimants

In contrast to coal workers' pneumoconiosis, KRS 342.316(3)(b)4.b. and KRS 342.315(1) require workers suffering from non-coal-related pneumoconiosis to only undergo a university evaluation rather than a consensus process. In this regard, KRS 342.316(3)(b)4.b. provides that “[t]he commissioner shall assign the claim to an administrative law judge and, except for coal workers'...