Opinion
NO. 2018-CA-001011-WC
01-17-2020
LONE MOUNTAIN PROCESSING, Appellant v. Adrian TURNER; Hon. R. Roland Case, Administrative Law Judge; and Workers’ Compensation Board, Appellees
BRIEF FOR APPELLANT: Denise M. Davidson, Hazard, Kentucky. BRIEF FOR APPELLEE: Johnnie L. Turner, Harlan, Kentucky.
BRIEF FOR APPELLANT: Denise M. Davidson, Hazard, Kentucky.
BRIEF FOR APPELLEE: Johnnie L. Turner, Harlan, Kentucky.
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
OPINION
MAZE, JUDGE:
Lone Mountain Processing (Lone Mountain) petitions for review of an opinion by the Workers’ Compensation Board (Board) affirming an administrative law judge’s (ALJ) award of benefits to Adrian Turner (Turner). The sole issue on review is whether the 2018 amendment to Kentucky Revised Statute (KRS) 342.730(4) applies retroactively to Turner’s award. Based upon the recent holding by the Kentucky Supreme Court, we conclude that the amendment applies to this case. Hence, we reverse this portion of the award and remand this matter for entry of a new award.
The underlying facts of this matter are not in dispute. Turner testified that he had approximately thirty-four years of employment in the coal industry, all of which had been underground. He started working with Lone Mountain in December 1997 and last worked in November 2015 cleaning belt lines, section returns and intakes. Shortly before he left this employment, Turner was diagnosed with Hodgkin’s lymphoma. However, two biopsies of his lungs ruled out lung cancer.
In January 2017, Turner filed an application seeking benefits for coal workers’ pneumoconiosis. The ALJ found, and Lone Mountain does not dispute, that Turner established by x-ray evidence the presence of complicated coal workers’ pneumoconiosis Category 3/2 "B." Consequently, the ALJ found Turner to be totally disabled. The ALJ also found that the tier-down provisions in the pre-1996 version of KRS 342.730(4) are applicable to Turner’s award.
Lone Mountain appealed the latter issue to the Board. In affirming the ALJ’s decision, the Board pointed to the then-recent opinion in Parker v. Webster County Coal, LLC (Dotiki Mine) , 529 S.W.3d 759 (Ky. 2017), which held KRS 342.730(4), as amended in 1996, was unconstitutional on equal protection grounds. Based on Parker , the Board found that the ALJ properly applied the 1994 version of the tier-down provisions of KRS 342.730(4).
In this petition for review, Lone Mountain argues that the March 30, 2018 amendments to KRS 342.730(4) are applicable to this claim. While this matter was pending before the Board, the General Assembly passed House Bill (HB) 2, effective July 14, 2018, which amended KRS 342.730(4) as follows:
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.
During the pendency of this petition for review, two panels of our Court issued opinions concerning the retroactive application of this amendment— Holcim v. Swinford , No. 2018-CA-000414-WC, 2018 WL 4261757 (Ky. App. Sept. 7, 2018) and University of Louisville v. Lanier , No. 2018-CA-000687-WC, 2018 WL 6264422 (Ky. App. Nov. 30, 2018). This case was placed in abeyance while those cases were reviewed by the Kentucky Supreme Court. Based upon the recent holding by the Kentucky Supreme Court in Holcim v. Swinford , 581 S.W.3d 37 (Ky. 2019), we must conclude that the 2018 amendments to KRS 342.730(4) are applicable to the current claim.
In Section 20(3) of HB 2, the General Assembly expressly declared the newly amended version of KRS 342.730(4) "shall apply prospectively and retroactively to all claims" where the injury occurred after December 12, 1996, and the claims "have not been fully and finally adjudicated, or are in the appellate process, or for which time to file an appeal has not lapsed, as of the effective date of this Act." 2018 Ky. Acts ch. 40 (HB 2), § 20(3) (effective July 14, 2018). In Holcim , the Supreme Court held that this language clearly evidenced the General Assembly’s intention that the statute apply retroactively, even though it was included in a non-codified portion of the statute. 581 S.W.3d at 43-44. See also Baker v. Fletcher , 204 S.W.3d 589, 597 (Ky. 2006). Therefore, we conclude the claim at bar satisfies the conditions for retroactive application of the newly-amended version of KRS 342.730(4). Consequently, we must set aside that portion of the Board’s opinion and remand this matter to the ALJ for entry of an award applying the 2018 version of KRS 342.730(4).
Accordingly, the June 15, 2018 opinion of the Workers’ Compensation Board is reversed and remanded with direction that the ALJ enter a new award in accord with this opinion.
ALL CONCUR.