Opinion
No. 96-SC-183-WC.
October 24, 1996.
James D. Holliday, Hazard, for appellant.
Denise Moore Davidson, Barret, Haynes, May, Carter, Roark, P.S.C., Hazard, for appellee McCoy Coal Co.
Joel D. Zakem, Labor Cabinet, Special Fund, Louisville, for appellee Windchy.
OPINION OF THE COURT
Claimant was employed as a bulldozer operator for a surface mining company. He was last exposed to the hazards of coal workers' pneumoconiosis on March 15, 1991, at which time he was laid off. This claim for workers' compensation benefits ensued. Claimant introduced evidence that he had contracted category 1 disease. However, the employer alleged that claimant had made a false representation on his medical history concerning a prior diagnosis of pneumoconiosis and that the claim was, therefore, barred by KRS 342.316 (6).
When testifying, claimant admitted that he was first diagnosed and informed that he had coal workers' pneumoconiosis by his family physician in 1982. The evidence was that he had filed a claim for Federal black lung benefits at that time, but the claim was never adjudicated. He testified that he began working for this employer on April 9, 1990, but did not complete an application for employment, which included the medical history questionnaire, until April 23, 1990. In completing the form, claimant responded in the negative to a question concerning whether a physician had ever diagnosed him as having coal workers' pneumoconiosis. When questioned about this, he testified that he was afraid that he would not be hired if he answered otherwise. The employer's witness indicated that an affirmative answer would have resulted in a medical examination and a determination of whether he was able and qualified to perform the work. The employer also offered evidence that workers were hired on a 30-day temporary basis and often began working before the employment paperwork was complete. The employer was not aware of claimant's prior diagnosis at the time he was hired.
The Administrative Law Judge (ALJ) concluded from the medical evidence that claimant had demonstrated the presence of category 1 coal workers' pneumoconiosis without a significant respiratory impairment. However, the ALJ also noted claimant's admission that he had failed to respond truthfully to the employer's medical questionnaire. The ALJ concluded that, although claimant had already begun to work when he was given the medical questionnaire, he had received it at the outset of the employment. Therefore, his failure to respond truthfully resulted in the claim being barred pursuant to KRS 342.316 (6). Blanton v. Workmen's Compensation Board, Ky., 531 S.W.2d 518 (1976); Caldwell v. Yocom, Ky.App., 574 S.W.2d 913 (1979). Claimant petitioned for reconsideration, requesting that the ALJ make additional findings and reconsider the merits in light of the then-recent decision in Divita v. Hopple Plastics, Ky.App., 858 S.W.2d 214 (1993). Subsequently, a renewed motion for reconsideration also was filed. However, both motions were overruled, with the ALJ finding no patent error in the opinion.
The Workers' Compensation Board (Board) affirmed the decision of the ALJ. In doing so, the Board rejected claimant's argument that the three-prong test concerning false representation asset forth in Divita and later codified in KRS 342.165 (2) applied to these facts. By its own terms, KRS 342.165 (2) applied to claims for injury. The Board noted that, since the decision in Blanton, the legislature had met numerous times and had not modified KRS 342.316 (6), including in 1994 when KRS 342.165 (2) was enacted. Under those circumstances, the Board concluded that the ALJ was correct in determining that the claim was barred.
The decision of the Board was affirmed by the Court of Appeals. Likewise, we affirm.
KRS 342.316 (6) provides, in pertinent part, as follows:
No compensation shall be payable for occupational disease if the employee at the time of entering the employment of the employer by whom compensation would otherwise be payable . . . failed or omitted truthfully to state to the best of his knowledge, in answer to written inquiry made by the employer, the place, duration, and nature of previous employment, or, to the best of his knowledge, the previous state of his health.
Despite the fact that KRS 342.316 is a specific statute governing claims for occupational disease and that the legislature did not see fit to modify it in 1994 when KRS 342.165 (2) was enacted, claimant continues to argue that the three-prong test set forth in Divita and KRS 342.165 (2) applies to this claim for occupational disease. We observe that the three-prong test was adopted by the Court in Divita because the false representation in that case concerned prior injuries, and KRS 342.316 (6) applied only to false representations concerning occupational disease. The Court explained that its adoption of the test was an attempt at fairness and consistency with the legislative policy governing the effect of false representations in claims for occupational disease as expressed in KRS 342.316 (6). Id. at 216. Clearly, it was not an attempt to alter the effect of the plain language of KRS 342.316 (6) concerning claims for occupational disease. Under those circumstances, we are not persuaded that the decisions below were in error.
The decision of the Court of Appeals is hereby affirmed.
All concur.