Zielinski Construction Co. v. Burden
| Decision Date | 27 September 2001 |
| Docket Number | No. 2000-SC-0845-WC.,2000-SC-0845-WC. |
| Citation | 62 S.W.3d 14 |
| Parties | ZIELINSKI CONSTRUCTION COMPANY, Appellant, v. Stephen BURDEN; Thomas A. Nanney, Administrative Law Judge; and Workers' Compensation Board, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
This workers' compensation appeal concerns a retraining incentive benefit (RIB) claim in which the last exposure occurred before December 12, 1996, but in which the claim was filed after that date. At issue is whether the filing date controls the worker's entitlement to the benefit. We conclude that it does not.
The claimant received his last injurious exposure to coal dust on July 5, 1996, but his RIB claim was not filed until July 30, 1998. As a result, a question arose concerning the extent to which the claim was governed by the December 12, 1996, amendments to Chapter 342. In 1994, the benefit was not payable directly to a worker who was employed in the severance and processing of coal; whereas, the 1996 Act required evidence of both a specified respiratory impairment and full-time participation in an approved training or education program. Although the claimant produced evidence of category 1 disease, his pulmonary function was normal, and although he was no longer employed in the severance or processing of coal, he was not engaged in retraining.
The Administrative Law Judge (ALJ) refused to apply the amended version of KRS 342.732(1)(a) and awarded a RIB under the 1994 version of the statute. Appealing, the employer has asserted, unsuccessfully, that the filing date controls the applicable version of KRS 342.732(1)(a), that the 1996 version applies, and that the claim should have been dismissed because the evidence does not comply with that version. We disagree.
KRS 446.080(3) provides that, "no statute shall be construed to be retroactive, unless expressly so declared." When amending the Act in 1996, the legislature designated the amendments to certain sections of Chapter 342 as being "remedial." KRS 342.0015. KRS 342 .732(1)(a) is not among the group so designated.
Unlike the 1994 amendment to KRS 342.732(1)(a) that was at issue in Thornsbury v. Aero Energy, Ky., 908 S.W.2d 109 (1995), the 1996 amendment changed the medical criteria for awarding a RIB in addition to changing the remedy, itself. We determined that the amendment that was at issue in Thornsbury was remedial because it adopted a remedy that would more effectively accomplish the purpose of the RIB. Id. at 112. Thornsbury is not persuasive authority for the proposition that the 1996 amendment to KRS 342.732(1)(a) was remedial.
In asserting that the date of filing controls the applicable version of KRS 342.732(1)(a), the employer relies upon Breeding v. Colonial Coal Co., Ky., 975 S.W.2d 914, 916 (1998) (citing Arch of Kentucky, Inc. v. Thomas, Ky., 895 S.W.2d 578 (1995)), wherein we stated as follows:
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.
As first noted by Board Member Loran in his concurring opinion at the Board level, the seminal case of Arch of Kentucky v. Thomas, supra, involved a RIB claim by a "working miner." Since the worker was still engaged in mining coal, there was no date of last injurious exposure; thus, the date of filing was held to be the effective date for determining his entitlement to RIB award. Here, the claimant did not file his RIB claim until after he quit mining coal; thus, there is no need to apply the holding in Arch of Kentucky because the date of his last injurious exposure...
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