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Mullins v. Lone Mountain Processing

Commonwealth of Kentucky Court of Appeals
Jun 5, 2020
NO. 2020-CA-000319-WC (Ky. Ct. App. Jun. 5, 2020)

Opinion

NO. 2020-CA-000319-WC

06-05-2020

JEFFERY MULLINS APPELLANT v. LONE MOUNTAIN PROCESSING; HON. R. ROLAND CASE, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE LONE MOUNTAIN PROCESSING: Denise M. Davidson Hazard, Kentucky


NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-02201 OPINION
AFFIRMING

** ** ** ** **

BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES. THOMPSON, L., JUDGE: Jeffery Mullins ("Appellant") appeals from an opinion of the Workers' Compensation Board affirming in part, vacating in part, and remanding an opinion, award, and order rendered by Hon. R. Roland Case, administrative law judge ("ALJ"). Appellant argues that the Board improperly applied Holcim v. Swinford, 581 S.W.3d 37 (Ky. 2019), to conclude that changes to Kentucky Revised Statutes ("KRS") 342.730(4), effective July 14, 2018, should be applied retroactively to Appellant's award. For the reasons addressed below, we find no error and affirm the opinion on appeal.

FACTS AND PROCEDURAL HISTORY

On December 28, 2017, Appellant filed a Form 102-CWP alleging that he contracted coal workers' pneumoconiosis ("CWP") during the course of his 39 years of employment as a coal miner. Appellant asserted that his last injurious exposure to coal dust occurred on March 8, 2017, while in the employment of Lone Mountain Processing ("Appellee"). In support of the claim, Appellant filed a July 28, 2017 x-ray report of Dr. Glen Baker, which showed q/q opacities in all six lung zones with a 2/1 profusion. Dr. Sanjay Chavda examined Appellant and diagnosed CWP based on a finding of q/q opacities in all six lung zones with 2/1 profusion.

The matter proceeded before ALJ Case, who rendered an opinion, award, and order on June 18, 2018, finding Appellant to be permanently, totally disabled due to CWP. Judge Case awarded benefits in the amount of $835.04 per week commencing on March 8, 2017, subject to any limitations set out in KRS Chapter 342. Relying on Parker v. Webster County Coal, LLC (Dotiki Mine), 529 S.W.3d 759 (Ky. 2017), ALJ Case found that the "tier down" provision contained in the 1994 version of KRS 342.730(4) was applicable. Lone Mountain petitioned for reconsideration, arguing in relevant part that the ALJ should have applied the version of KRS 342.730(4) as modified by House Bill 2 effective July 14, 2018. This modified version terminated income benefits at age 70, or four years after the employee's last exposure, whichever last occurs. Lone Mountain's petition for reconsideration of this issue was denied by way of an order rendered in June 2018.

Lone Mountain appealed to the Board, arguing that Appellant's claim should be remanded to the ALJ for application of the 2018 changes to KRS 342.730(4). Upon considering the matter, the Board determined that Holcim, supra, ruled that KRS 342.730(4) had retroactive application. As such, the Board vacated the ALJ's decision regarding the applicability of the 1994 version of KRS 342.730(4), and remanded the matter for an amended award pursuant to KRS 342.730(4) as modified effective July 14, 2018. This appeal followed.

ARGUMENT AND ANALYSIS

Appellant argues that the Board erred in remanding the matter for the retroactive application of the 2018 version of KRS 342.730(4). Appellant contends that KRS 342.732 rather than KRS 342.730(4) is properly applied to his claim, as the former specifically addresses CWP claims whereas the latter is a general, all-encompassing provision not properly applied to the issue before us. Appellant asserts that nowhere in Holcim, supra, does the Kentucky Supreme Court state that KRS 342.730(4) has retroactive effect on CWP claims. Appellant also points to City of Louisville v. Slack, 39 S.W.3d 809 (Ky. 2001), for the proposition that all Kentucky workers' compensation laws are to be liberally construed to accomplish their humanitarian purposes. A liberal construction of KRS Chapter 342, he argues, is served by applying the statutory scheme to pay disability benefits as long as the worker is disabled. Appellant requests an opinion reversing the Board's ruling on this issue, and remanding the matter for reinstatement of the ALJ's decision applying the tier down provision.

KRS 342.732(1)(e) states that,

Notwithstanding any other provision of this chapter, income benefits and retraining incentive benefits for occupational pneumoconiosis resulting from exposure to coal dust in the severance or processing of coal shall be paid as follows:

. . .

(e) If it is determined that an employee has radiographic classification of 3/2 or 3/3 occupational pneumoconiosis and respiratory impairment evidenced by spirometric test values of less than fifty-five percent (55%) of the predicted normal values, or complicated pneumoconiosis (large opacities category A, B, or C progressive massive fibrosis), there shall be an irrebuttable presumption that the employee is totally disabled resulting from exposure to coal dust, and the employee shall be awarded income benefits equal to sixty-six and two-thirds percent (66-? %) of the employee's average weekly wage but not more than one hundred percent (100%) of the state average weekly wage and not less than twenty percent (20%) of the average weekly wage of the state as determined by KRS 342.740. Income benefits awarded under this paragraph shall be payable to the employee during such disability.

We must first note that Appellant has not complied with Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v), which requires that the Appellant state at the beginning of the written argument whether the issue was preserved and, if so, in what manner. We are not required to consider portions of the Appellant's brief not in conformity with CR 76.12, and may summarily affirm the Board on the issues contained therein. Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947 (Ky. 1986); Pierson v. Coffey, 706 S.W.2d 409 (Ky. App. 1985). "In Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990), we established the principle that, where an appellant fails to comply with CR 76.12(4)(c)(iv), a reviewing court need only undertake an overall review of the record for manifest injustice. We believe that principle applies as well to the failure to comply with CR 76.12(4)(c)(v)." J.M. v. Commonwealth, Cabinet for Health and Family Services, 325 S.W.3d 901, 902 n.2 (Ky. App. 2010). As in J.M., we have chosen the less severe alternative of reviewing the proceeding below for manifest injustice rather than summarily affirming the decision of the Board. "Manifest injustice is found if the error seriously affected the fairness, integrity, or public reputation of the proceeding." Kingrey v. Commonwealth, 396 S.W.3d 824, 831 (Ky. 2013) (internal quotations marks and citation omitted).

While CR 76.25 applies specifically to workers' compensation appeals, CR 76.12 applies generally to "any appeal" and "workers' compensation appeals." See CR 76.12(1) and (2)(a). --------

KRS 342.730(4), as amended in 2018, states that:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee reaches the age of seventy (70), or four (4) years after the employee's injury or last exposure, whichever last occurs. In like manner all income benefits payable pursuant to this chapter to spouses and dependents shall terminate as of the date upon which the employee would have reached age seventy (70) or four (4) years after the employee's date of injury or date of last exposure, whichever last occurs.

Holcim, supra, upon which the Board relied in reversing the decision of ALJ Case, held in relevant part that while KRS 342.730(4) makes "no mention of retroactivity or any language from which retroactivity may be inferred . . . the newly-enacted amendment [nevertheless] applies retroactively[.]" Holcim, 581 S.W.3d at 44. The Supreme Court reached this conclusion based on Legislative Research Commission commentary appended to the statute, which characterized the statute's provisions as retroactive in application.

CONCLUSION

In relying on Holcim, the Board's opinion was firmly grounded on the published case law of Kentucky's highest court. We do not conclude that this reliance was misplaced, nor that it resulted in manifest injustice which seriously affected the fairness, integrity, or public reputation of the proceeding. Kingrey, supra. Having found no manifest injustice, we affirm the February 7, 2020 Opinion of the Workers' Compensation Board.

COMBS, JUDGE, CONCURS.

KRAMER, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky BRIEF FOR APPELLEE LONE
MOUNTAIN PROCESSING: Denise M. Davidson
Hazard, Kentucky


Summaries of

Mullins v. Lone Mountain Processing

Commonwealth of Kentucky Court of Appeals
Jun 5, 2020
NO. 2020-CA-000319-WC (Ky. Ct. App. Jun. 5, 2020)
Case details for

Mullins v. Lone Mountain Processing

Case Details

Full title:JEFFERY MULLINS APPELLANT v. LONE MOUNTAIN PROCESSING; HON. R. ROLAND…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jun 5, 2020

Citations

NO. 2020-CA-000319-WC (Ky. Ct. App. Jun. 5, 2020)