Opinion
May 23, 1975.
Appeal from the Harlan Circuit Court, Ray O. Shehan, Special Judge.
John E. Anderson, Charles G. Cole, Cole, Cole Anderson, Barbourville, for appellant.
Thomas L. Ferreri, Dept. of Labor, Louisville, Patterson Berger, Pineville, Gayle G. Huff, Harlan, for appellees.
The Workmen's Compensation Board denied the claim of Sillis Brock for compensation for total-permanent disability from pneumoconiosis. The basis for denial of the claim against Coal Resources was that Brock worked only two days (February 1st and 2nd, 1973). At the time of his last employment he was disabled from pneumoconiosis and knew it.
On an appeal to the Harlan Circuit Court, the order and opinion by the board was affirmed. Brock appealed from that judgment.
The board found that Brock's last injurious exposure to the hazards of the disease of pneumoconiosis occurred December 28, 1972, while he worked at Kentucky East. The law to be applied to the case was the law in effect at the time of the last exposure. The pre-1973 workmen's compensation law governs this case. Thus, Brock was not exposed to the hazards of pneumoconiosis in his employment within this state for at least two years next before his disability as required by KRS 342.316(4), the law in effect on December 28, 1972.
Brock's argument that he became disabled and was last injuriously exposed to the occupational disease of pneumoconiosis on February 2, 1973, after working two days, stretches the bounds of credulity. This court will not permit a claimant to attempt to "wheelbarrow" a claim such as attempted here, through the back door, when he was unable to bring it through the front door on its merits. The court is of the opinion that the board was substantially correct in terming the claim a "subterfuge."
This court's opinion in Yocom v. Karst, Ky., 528 S.W.2d 697 (Decided this date) is dispositive of the issues presented on appeal.
The judgment is affirmed.
All concur.