llV|PORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED “NOT TO BE PUBL|SHED."
PURSUANT TO THE RULES OF C|V|L PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON |S NOT TO BE PUBL|SHED AND SHALL NOT BE
C|TED OR USED AS BlNDlNG PRECEDENT |N ANY OTHER
CASE lN ANY_COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE C|TED FOR
CONS|DERAT|ON BY THE COURT lF THERE lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE
BEFORE THE COURT. OP|N|ONS C|TED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|S|ON lN THE F|LED DOCUMENT AND A COPY OF THE
ENTIRE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE
DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACT|ON.

RENDERED: AUGUST 24, 2017
NOT TO BE PUBLISHED

§upreme Coan of Beni@@ N A L

2016-sc-000349-Wc _ @ATE flaum \!"'u flulum°<

BILL GRAY, JR. APPELLANT

ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 20 15-CA-OO 1 123-WC
WORKERS’ COMPENSATION BOARD
4 NO. 14-WC~01614

JAMES RIVER COAL/BEECH FORK MINE; APPELLEES
HON. J. LANDON OVERFIELD, FORMER

CHIEF ADMINISTR.ATIVE LAW JUDGE;

HON. ROBERT L. SWISHER, CHIEF

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT
AFFIRMING

Appellant Bill Gray, Jr. filed a claim for workers’ compensation
benefits alleging that he had contracted pneumoconiosis, chronic bronchitis
and chronic obstructive pulmonary disease as a coal miner. On the motion of
Appellee James River Coal/Beech Fork Mine, the administrative law judge
(ALJ) dismissed the claim as time-barred under the three-year statute of
limitations in Kentucky Revised Statute (KRS) 342.316(4)(a). T he Workers’

Compensation Board and the Court of Appeals both affirmed the ALJ’s order

dismissing Gray’s claim. Having carefully reviewed the record and applicable
law, we affirm.
RELEVAlilT FACTS

Gray worked for various employers as a coal miner for over forty years
and retired from James River on August 24, 2009, which was his last injurious
exposure to coal dust. He did not file a Kentucky workers’ compensation claim
until almost five years later on August 22, 2014. In the interim, Gray had filed
a federal black lung claim in 2011 with the U.S. Department of Labor, Office of
Workers’ Compensation Programs, Division of Coal Mine Workers’
Compensation. In conjunction with that federal claim, x-rays were taken and a
physical examination was performed by Glen R. Baker, M.D., who found as

follows on February 5, 2011:

On the basis of my examination the patient has a chronic lung
disease secondary to his coal mine employment This is based on
the presence of both clinical and legal pneumoconiosis

With clinical pneumoconiosis he has x-ray changes of Coal
Workers Pneumoconiosis, category 1/1, on basis of 2000 ILO
Classification. He Worked 41 to 42 years in the underground
mines at the face of the mine. He has no other condition to
account for these x-ray changes This is presumptive evidence
these changes are, in fact, due to coal dust and represent Coal
Workers Pneumoconiosis. The only Way to prove this is to do a
lung biopsy, which is not clinically indicated at this time.

He also has legal pneumoconiosis He has COPD and a symptom
complex of chronic bronchitis These can be caused by coal dust
exposure. As he has only an approximate 2-pack year history of
smoking and has not smoked any for over 40 years, the coal dust
is the most likely cause of these conditions On this basis, his
condition has been significantly contributed to and substantially
aggravated by coal dust exposure from his coal mine employment
and represents legal pneumoconiosis

2

His pulmonary function studies show a mild obstructive defect and

his arterial blood gases are normal. On this basis, he does have a

mild impairment but he would have the respiratory capacity to

perform the work of a coal miner or comparable work in a dust free

environment. His medical problems, however, with his cardiac

condition, and arthritis of his knees `as well as hypertension may

be disabling in and of themselves He would have the respiratory

capacity to do the work of a coal miner in and of itself.

I-Iis Coal Workers Pneumoconiosis 1/ 1, COPD with a mild

obstructive defect, and chronic bronchitis have an adverse effect

on his respiratory system and contributes to his mild pulmonary

impairment due significantly to his coal dust exposure.

Gray attached Dr. Baker’s report as supporting medical evidence for his August
2014 Kentucky workers’ compensation claim.

James River moved to dismiss Gray’s claim as untimely because it was
filed more than three years after his February 5, 201 1 diagnosis of Coal
Workers Pneumoconiosis (CWP). The ALJ granted dismissal despite Gray’s
contention that under KRS 342.316(4)(a) he had five years from his last
injurious exposure Within which to file his claim. Gray moved for
reconsideration of the ALJ’s succinct, two-page order, reiterating his same
argument. Following the ALJ’s denial of reconsideration, Gray appealed to the
Board.

The Board noted that under KRS 342.316(4)(a) Gray Was required to file
within three years after his last injurious exposure or three years after he first
experienced “a distinct manifestation” of CWP “in the form of symptoms
reasonably sufficient to apprise [him] that he . . . has contracted the disease,

Whichever shall last occur.” The Board agreed With the ALJ that the latter

circumstance, “distinct manifestation,” had occurred in February 201 1 and

3

that Gray had been informed of his diagnosis at that time. In fact, he had filed ’
a federal black lung claim that same month. Consequently, Gray had through
February 5, 2014, to timely file his state claim for CWP. His August 22, 2014
claim was time-barred. In so ruling, the Board rejected Gray’s claim that he
was entitled under the last sentence of KRS 342.316(4)(a) to file within five
years of his last injurious exposure, i.e., by August 24, 2014. The Board
considered the definition of “symptom” and concluded that the positive x-ray
reading constituted a symptom for purposes of the statute of limitations since
it was a “’morbid phenomenon or departure from the normal structure’ of the
lung indicative of the disease of CWP.” Even without this x-ray finding, the
Board noted Dr. Baker had documented and conveyed to Gray his findings that
the disease had adversely affected Gray’s respiratory system, resulting in a
mild pulmonary impairment, Using either the positive x-ray finding or the
diagnosis of CWP with pulmonary impairment, the claim was time-barred three
years after February 5, 2011.

The Court of Appeals affirmed and explained by reference to our recent
decision in Consol of Kentucky, Inc. v. Goodgame, 479 S.W.3d 78 (Ky. 2015),
that KRS 342.316(4)(a) contains both a three-year statute of limitations and a l
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 novo. See also Consol of Kentucky,
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) 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 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 2015,
his or her claim would be barred, regardless of when he or she first experienced
a distinct manifestation of coal workers’ pneumoconiosis.” Id. ln 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 informed. 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 toid 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 II New College
Dictionary, 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 (symptoms) 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, -

All sitting. All concur.

COUNSEL FOR APPELLANT:

Phyllis L. Robinson

COUNSEL FOR APPELLEE,
JAMES RIVER COAL/ BEECH
FORK MINE:

Paul E. Jones
Sara V. A. May
Jones & Walters PLLC

