Bill Gray Jr v. James River coal/beech Fork Mine ( 2017 )


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  • ` llV|PO_RTANT NOT|CE
    NOT TO BE PUBL|SHED OP|N|ON
    THls 0PlNloN ls DEslGNATED ”NoT fo BE PuBLlsHED."
    PuRsuANT To THE RuLEs oF clvlL PRocEDuRE
    PRoMuLGATED Bv THE suPREME couRT, cR 76.28(4)(c),
    THls 0PlNloN ls NoT To BE PuBLlsHED AND sHALL NoT BE
    clTEn oR;usED As BlNDlNG PREcEDENT lN ANY oTHER
    cAsE lN ANY_couRT oF THls sTATE; HowEvER,
    uNPuBLlsHED l479 S.W.3d 78 
    (Ky. 2015),
    that KRS 342.316(4)(a) contains both a three-year statute of limitations and a 1
    five-year statute of repose. The Court of Appeals held that the ALJ properly
    found Gray’s claim to be time-barred by the three-year statute of limitations
    rendering the five-year statute of repose inapplicable We agree.
    ANALYSIS
    There are no disputed facts before us but rather the simple question of
    whether Gray timely filed his CWP‘claim. Whether particular undisputed facts
    are Sufficient under the language of a statute to trigger the running of the
    statute of limitations is a question of law. Fluke Corp. v. LeMaster, 
    306 S.W.3d 55
    (Ky. 2010). As such, our review is de n_ovo. See also Consol of 
    Kennickp, 479 S.W.3d at 81
    (issue of statutory interpretation in workers’ compensation
    case is reviewed de novo].
    The timeliness of Gray’s workers’ compensation claim is determined by
    reference to KRS_ 342,316(4)(a], which provides:
    (4) (a) T he 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 occupa-
    tional disease in the form of symptoms reasonably ‘
    sufficient to apprise the employee that he or she has
    contracted the disease, whichever shall last occur;
    and if death results from the occupational disease
    within that period, unless a claim therefor be`filed
    with the commissioner within three (3) years after the
    death; but that notice of claim shall be deemed waived
    in case of disability or death where the employer,' or '
    its insurance carrier, voluntarily makes payment
    therefor, or if the incurrence of the disease or the
    death of the employee and its cause was known to the
    employer. 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, except that, in cases of radiation
    disease or asbestos-related disease, a claim must be
    filed within twenty (20) years from the last injurious
    exposure to the occupational hazard. _
    5
    In Consol of Kentucky, we dealt specifically with the application of the
    appropriate statute of limitations to a work-related cumulative trauma injury
    but we also discussed KRS 342.316(4)(a), the occupational disease statute, and
    how it typically operates The first sentence of that statute quoted above,
    particularly the language up through “whichever shall last occur" followed by a
    semi-colon, “acts as a statute of limitations triggered by either of those two
    events,” i.e., “last injurious exposure” or the “manifestation of the 
    disease.” 479 S.W.3d at 83
    . The second sentence provides a five-year statute of repose
    for most occupational disease claims1 with the five-year period also triggered by
    the date of last exposure. Id.'. Having identified the two different periods, we
    then stated: “Therefore, if a worker was last exposed to the hazards of coal '
    dust in 2009 but did not file a coal workers’ pneumoconiosis claim until 20 15,
    his or her claim would be barred, regardless of when he or she first experienced
    a distinct manifestation of c__oai workers’ pneumoconiosis.’* Id.. In applying the
    statute we must look first to the first sentence to see if the three-year
    limitations period was ever triggered by a distinct manifestation of the disease.
    Here, the ALJ understandably found that there had been a manifestation
    of Gray’s CWP in February 2011 upon the positive x-ray finding, a finding of
    which Gray was inforrned. The Board agreed that the x-ray was a “distinct
    manifestation of an occupational disease [CWP] in the form of symptoms
    reasonably sufficient to apprise the employee that he . . . [had] contracted the
    1 The statute has a twenty-year statute of repose for claims related to exposure
    to asbestos or radiation.
    disease.” Before the Board, as in the Court of Appeals and here, Gray
    contended that the findings on the lung x-ray cannot be a “symptom.” He
    seemingly'argues that the employee must be consciously experiencing some
    specific symptom associated with the particular disease for which he is making
    a claim and, further, that having undergone testing and having been told of the
    results and a specific medical diagnosis is not enough to trigger the statute.
    We disagree.
    The word “symptom” is not defined in the workers’ compensation statute.
    As the Board noted in its thorough opinion, “symptom” is defined in Stedman’s
    Medical Dictionary p. 1884 (28th ed. 2005) as “any morbid phenomenon or
    departure from the normal structure, function, or sensation, experienced by
    the patient and indicative of disease.” Similarly, Webster’s H New College
    Dio¢ionery, p. 1 1 17 (1995) defines symptom as follows “A phenomenon
    experienced by an individual as a departure from normal function, sensation,
    or appearance, generally indicating disease or disorder.”
    Here, Gray “experienced” changes in his lungs - opacities evident on x-
    ray - which were indicative of CWP. Gray was informed of these changes to his
    lungs (syrnptoms) and his mild pulmonary impairment (also symptoms) by Dr.
    Baker in February 2011 and filed a federal black lung claim at that time.
    Under KRS 342.316(4)(a), there was a “distinct manifestation” of CWP as of
    that date and Gray’s three-year statute of limitations began to run. This is
    plainly not a case, like the hypothetical one we alluded to in Consol of
    Kentucky, where the coal worker was unaware of any disease for several years,
    7
    then discovered it, but only after (or even shortly before) the five-year statute of
    repose had expired. Contrary to Gray’s argument, the five-year statute of
    repose is totally irrelevant to his claim. _
    In conclusion, the ALJ properly found that this claim must be,dismissed
    as filed outside the three-year statute of limitations in KRS 342.316(4)(a).
    Indisputably, Gray’s claim was filed_more than three and a half years after the -
    February 2011 manifestation of his CWP. Accordingly, we affirm the Court of
    Appeals’ opinion n ‘ '
    All sitting. All concur.
    COUNSEL FOR APPELLANT:
    Phyllis L. Robinson
    COUNSEL FOR APPELLEE,
    JAMES RIVER COAL/BEECH
    FORK MINE:
    Paul E. J ones
    Sara V. A. May
    Jones & Walters PLLC
    

Document Info

Docket Number: 2016 SC 000349

Filed Date: 8/22/2017

Precedential Status: Precedential

Modified Date: 8/24/2017