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Deal v. Harlan Dev.

Commonwealth of Kentucky Court of Appeals
Jan 16, 2015
NO. 2014-CA-000662-WC (Ky. Ct. App. Jan. 16, 2015)

Opinion

NO. 2014-CA-000662-WC

01-16-2015

RANDY DEAL APPELLANT v. HARLAN DEVELOPMENT; HON. J. LANDON OVERFIELD, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

BRIEF FOR APPELLANT: Johnnie L. Turner Harlan, Kentucky BRIEF FOR APPELLEE HARLAN DEVLOPMENT: Jeffrey Damron Pikeville, Kentucky


NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-13-01192
OPINION
AFFIRMING
BEFORE: DIXON, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: Randy Deal (Deal) petitions for review of a March 21, 2014 opinion by the Workers' Compensation Board (Board) affirming a November 6, 2013 order by the Chief Administrative Law Judge (CALJ) dismissing Deal's claim for coal workers' pneumoconiosis (CWP) benefits against Harlan Development (Harlan). Deal argues that the Board and the CALJ erred in finding that his claim was not timely filed. Finding no error on this issue, and noting that the Board affirmed the dismissal on separate grounds which are not raised in this petition, we affirm.

Deal was employed by Harlan until October 28, 2009. After his employment ended, he filed several claims for work-related injuries which he sustained while employed by Harlan. The first claim, based upon injuries to his right shoulder, neck, abdomen, legs and feet, resulted in an award of temporary total disability benefits. The second claim, based upon a hearing loss, was resolved by settlement.

While the second claim was pending, Deal filed a motion to reopen a claim which he had filed in 1993 seeking benefits for CWP, as well as Retraining Incentive Benefits (RIB). The ALJ denied the motion to reopen. Thereafter, on August 5, 2013, Deal filed the current application for benefits, alleging that he had contracted CWP while employed with Harlan.

The Board affirmed that decision on appeal, and this Court denied Deal's petition for review. Deal v. Gunther Nash Mining Const. Co., No. 2013-CA-000777-WC, 2014 WL 631887 (Ky. App. 2014). That matter is currently on appeal before the Kentucky Supreme Court. No. 2014-SC-000102-WC.

Harlan then moved to dismiss the current claim because it was not filed within three years of the last injurious exposure date as provided in KRS 342.316(4)(a). Harlan noted that Deal supported his claim with an x-ray report from Dr. Glen Baker stating that Deal had a category 1/0 reading. Harlan pointed out that Dr. Baker had made the same finding in the 1993 claim. Harlan also argued that the KRS 342.270(1) required Deal to bring his current CWP claim at the same time he filed the other claims against Harlan.

The CALJ agreed with Harlan on both issues and dismissed Deal's claim. The Board affirmed the dismissal on appeal. This petition for review followed.

The parties agree that the time limits for filing a CWP claim are governed by KRS 342.316(4)(a), which provides, in pertinent part, as follows:

The right to compensation under this chapter resulting from an occupational disease shall be forever barred unless a claim is filed with the commissioner within three (3) years after the last injurious exposure to the occupational hazard or after the employee first experiences a distinct manifestation of an occupational disease in the form of symptoms reasonably sufficient to apprise the employee that he or she has contracted the disease, whichever shall last occur; ... However, the right to compensation for any occupational disease shall be forever barred, unless a claim is filed with the commissioner within five (5) years from the last injurious exposure to the occupational hazard, ...

Deal points out that he last worked for Harlan on October 26, 2009 and he filed his claim on August 5, 2013, which is within the five-year time limit. He acknowledges that he filed CWP and RIB claims in 1993, for which he received benefits. However, Deal notes that he continued to work for different employers in the coal industry afterward. In addition, Deal contends that he did not know that he still had pneumoconiosis until Dr. Baker diagnosed him in June of 2013.

But as the Board pointed out, the record does not support Deal's argument. Deal filed the motion to reopen his 1993 pneumoconiosis claim on October 5, 2012, alleging a worsening of his condition. This was well before Dr. Baker gave his most recent diagnosis. Thus, as the Board found, Deal cannot reasonably claim he was unaware of the existence of his pneumoconiosis prior to 2013. Therefore, Deal was precluded from pursuing his claim because he did not file it within three years of his last injurious exposure.

In any event, the Board also affirmed the CALJ's dismissal based on the joinder requirements of KRS 342.270(1). That section requires a claimant to join all causes of action against the named employer which have accrued and which are known or should reasonably be known to him. "Failure to join all accrued causes of action will result in such claims being barred under this chapter as waived by the employee." The Board concluded that Deal was required to bring his CWP claim against Harlan along with his other injury claims. Since he failed to do so, the Board found that his current claim is now barred. Because Deal does not challenge this determination in this petition for review, the issue is not before the Court and we are compelled to affirm on this ground.

Accordingly, the March 21, 2014 order of the Workers' Compensation Board is affirmed.

ALL CONCUR. BRIEF FOR APPELLANT: Johnnie L. Turner
Harlan, Kentucky
BRIEF FOR APPELLEE
HARLAN DEVLOPMENT:
Jeffrey Damron
Pikeville, Kentucky


Summaries of

Deal v. Harlan Dev.

Commonwealth of Kentucky Court of Appeals
Jan 16, 2015
NO. 2014-CA-000662-WC (Ky. Ct. App. Jan. 16, 2015)
Case details for

Deal v. Harlan Dev.

Case Details

Full title:RANDY DEAL APPELLANT v. HARLAN DEVELOPMENT; HON. J. LANDON OVERFIELD…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jan 16, 2015

Citations

NO. 2014-CA-000662-WC (Ky. Ct. App. Jan. 16, 2015)