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                                               RENDERED: AUGUST 24, 2017
                                                    NOT TO BE PUBLISHED

              ~upr:em:e <Tinud nf ·ti:enfu:eku
                             2016-SC-000349-WC


BILL GRAY, JR.                                                      APPELLANT


                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2015-CA-001123-WC
                    WORKERS' COMPENSATION BOARD
                           NO. 14-WC-01614


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

(AW) dismissed the claim as time-barred under the three-year statute of

limitations in Kentucky Revised Statute (KRS) 342.316(4)(a). The Workers'

Compensation Board and the Court of Appeals both affirmed the AW's order
dismissing Gray's claim. Having carefully reviewed the record and applicable

law, we affirm.

                               RELEVANT 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 of2000 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.

      His 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, 2011 diagnosis of Coal

Workers Pneumoconiosis (CWP). The AW 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 AW's succinct, two-page order, reiterating his same

argument. ·Following the AW'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 AW that the latter

circumstance, "distinct manifestation," had occurred in February 2011 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 de.parture 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

five-year statute of repose. The Court of Appeals held that the AW 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.




                                       4
                                   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,

parti9ularly 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 claimsl 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 c.oal 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 AW 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 forrri 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.

                                          6
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 II New College

Dictionary, p. 1117 (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 (aiso 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 AW 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 & Wal):ers PLLC




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