Osie Daniel Goodgame Jr v. Consol of Kentucky, Inc. ( 2015 )

RENDERED: SEPTEMBER 24, 2015
TO BE PUBLISHED
Suprrntr &Turf of rufuritv
2014-SC-000305-WC
CONSOL OF KENTUCKY, INC. APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NOS. 2013-CA-000281-WC AND 2013-CA-000389-WC
WORKERS' COMPENSATION BOARD NO. 12-WC-00062
OSIE DANIEL GOODGAME, JR.;
HONORABLE JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
AND 2014-SC-000333-WC
OSIE DANIEL GOODGAME, JR. APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NOS. 2013-CA-000281-WC AND 2013-CA-000389-WC
WORKERS' COMPENSATION BOARD NO. 12-WC-00062
CONSOL OF KENTUCKY, INC.;
HONORABLE JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Osie Goodgame, Jr. (Goodgame), who worked for Consol of Kentucky,
Inc. (Consol) in both Kentucky and Virginia, alleged that he suffered
cumulative trauma injuries to his extremities and spine while employed by
Consol. The Al.,J dismissed Goodgame's claim finding that he had not filed it
within the applicable statute of limitations. The ALJ also found that Kentucky
could not exercise extraterritorial jurisdiction over any injuries that Goodgame
suffered while he was employed in Virginia. The Workers' Compensation Board
(the Board) affirmed the ALJ's finding regarding jurisdiction. However, it
vacated the ALJ's finding regarding the statute of limitations and remanded
with instructions for the ALJ to find when Goodgame's injury became manifest.
The Court of Appeals affirmed. Consol appeals, arguing that Goodgame's claim
is time barred regardless of the date of manifestation, and Goodgame cross-
appeals arguing that Kentucky has extraterritorial jurisdiction over his claim.
For the following albeit somewhat different reasons, we affirm the Court of
Appeals.
I. BACKGROUND.
Goodgame, a Kentucky resident, began working for Consol as a coal
miner in 1992 and worked for Consol in Kentucky until July 31, 2009, when
Consol stopped operations at the mine where he worked. Pursuant to an offer
from Consol, Goodgame began working at one of its mines in Virginia on or
about August 1, 2009. On January 19, 2010, Goodgame resigned and took
early retirement from Consol.
Goodgame filed an Application for Resolution of Injury Claim on January
17, 2012. In his claim form, Goodgame alleged that he suffered injuries to his
"upper and lower extremities, and to [his] entire spine" as a result of the
2
cumulative trauma he suffered performing work as an underground coal miner.
Consol filed a Notice of Claim Denial and motion to dismiss, arguing that
Goodgame's claim was time barred because he had not filed it within two years
of the date he last worked in Kentucky. The ALJ overruled Consol's motion.
Consol filed an appeal, which the Board dismissed as being from a non-final
order. The parties then filed their proof, and the ALJ held a hearing.
Following the hearing, the ALj dismissed Goodgame's claim, finding that,
at the latest, Goodgame's two-year statute of limitations began to run on
August 1, 2009, two years after he last worked in Kentucky. Furthermore, the
ALJ found that Goodgame had not suffered any injury in Virginia and that
Kentucky had no jurisdiction over any injury Goodgame may have suffered in
Virginia. The Board reversed and vacated, holding that the ALJ had not
conducted the proper analysis in determining Goodgame's date of injury for
statute of limitations purposes. However, the Board affirmed the ALJ's
decision regarding extraterritorial jurisdiction. A divided Court of Appeals
panel, citing heavily to the Board's opinion, affirmed. We set forth additional
facts as necessary below.
II. STANDARD OF REVIEW.
The ALJ has the sole discretion to determine the quality, character, and
substance of the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d
418, 419 (Ky. 1985). However, when there are mixed questions of fact and law,
we have greater latitude in determining if the underlying decision is supported
by probative evidence. Purchase Transportation Services v. Estate of Wilson, 39
3
S.W.3d 816, 817-18 (Ky. 2001). Furthermore, if the issue presented is one of
statutory interpretation, our review is de novo. Saint Joseph Hosp. v. Frye, 415
S.W.3d 631, 632 (Ky. 2013). With these standards in mind, we review the
issues raised on appeal by Goodgame and Consol.
III. ANALYSIS.
A. Statute of Limitations.
Consol argues that the ALJ correctly applied the statute of limitations to
dismiss Goodgame's claim and that remand for additional fact finding is not
necessary. We disagree.
Kentucky Revised Statutes (KRS) 342.185(1) provides in pertinent part
that:
[N]o proceeding under this chapter for compensation for an injury .
.. shall be maintained unless a notice of the accident shall have
been given to the employer as soon as practicable after the
happening thereof and unless an application for adjustment of
claim for compensation with respect to the injury shall have been
made with the department within two (2) years after the date of the
accident . . . .
As the Court noted in Cos/ow v. General Electric Co., 877 S.W.2d 611 (Ky.
1994), there are two ways to trigger the running of the statute of limitations in
Kentucky workers' compensation claims. One is the discovery method, which
applies, in part, to occupational disease claims. KRS 342.316(4)(a) "requires [a]
claimant to file within three years after the last injurious exposure to the
occupational hazard or after the employee first experiences a distinct
manifestation of an occupational disease," whichever is later.
4
The other way to trigger the statute of limitations is the "date of accident"
method, which applies to injury claims. KRS 342.185(1) requires a claimant to
file an application for adjustment of injury claim within two years of the
"accident." Notably, KRS 342.185(1) does not contain the "last injurious
exposure" language in KRS 342.316(4)(a), which makes sense when the injury
is the result of one traumatic event or accident, e.g. a broken leg as a result of
a fall. The difficulty arises with cumulative trauma injuries, which have
similarities to both single-traumatic-event injuries and occupational diseases.
Like single-traumatic-event injuries, cumulative trauma injuries are the result
of trauma and, like occupational diseases, they develop over time.
The Court first recognized the compensability of injuries that resulted
from cumulative trauma or gradual wear and tear in 1976. 1 Haycraft v.
Corhart Refractories Co., 544 S.W.2d 222 (Ky. 1976). The first attempt to
determine how to apply KRS 342.185 to such injuries occurred in 1988.
Randall v. Pendland, 770 S.W.2d 687 (Ky. App. 1988). The Court of Appeals
noted in Pendland that the plaintiff had suffered "many mini-traumas" rather
than "one accidental injury" from which to begin running the statute of
limitations. Id. at 688. Therefore, the Court determined "that the date for
clocking [the] statute of limitations begins when the disabling reality of the
injury becomes manifest." Id. That remained the law until 1999, when this
Court held in Alcan Foil Products v. Huff 2 S.W.3d 96 (Ky. 1999) that the
1 The legislature subsequently added cumulative trauma to the definition of "injury."
KRS 342.0011(1).
5
manifestation of disability language in Pendland refers to a "worker's discovery
that an injury had been sustained." Id. at 101. Thus, for cumulative trauma
claims, this Court interpreted the "date of accident" language in KRS
342.185(1) to mean the date of discovery. Following Huff, this Court refined
the cumulative trauma discovery rule in Hill v. Sextet Mining Corp., 65 S.W.3d
503 (Ky. 2001) holding that a claimant does not have to self-diagnose and is
not required to give notice of a work-related cumulative trauma injury until a
medical professional tells the claimant a condition is work-related. Thus, for
cumulative trauma injuries, the obligation to provide notice arises and the
statute of limitations does not begin to run until a claimant is advised by a
physician that he has a work-related condition.
As the Board noted, the ALJ in this case did not make a factual
determination concerning when Goodgame-was advised he had a work-related
condition. Rather, she simply chose the last day he worked in Kentucky as the
date of accident and calculated the running of the statute of limitations from
that date. Thus we agree with the Board that the ALJ must, on remand, make
that determination.
Consol argues, and the dissenting opinion from the Court of Appeals
opines, that the manifestation date of Goodgame's injury is irrelevant because
KRS 342.185(1) acts as both a statute of limitations and a statute of repose. "A
statute of limitations limits the time in which one may bring suit after the
cause of action accrues, while a statute of repose potentially bars a plaintiff s
suit before the cause of action accrues." Cos/ow, 877 S.W.2d at 612. For
6
example, the language in KRS 342.316(4)(a) that requires a claimant to file an
occupational disease claim within three years after the last injurious exposure
to the hazards of the disease or within three years of the manifestation of the
disease, whichever is later, acts as a statute of limitations, triggered by either
of those two events. KRS 342.316(4)(a) also contains a repose provision, which
states that no claim may be filed more than five years after the date of last
exposure, other than for claims related to exposure to asbestos or radiation,
which must be filed within 20 years of last exposure. 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.
Unlike KRS 342.316(4)(a), KRS 342.185(1), the injury statute of
limitations, does not contain statute of repose language. This Court first
addressed the issue of repose in injury claims in Coslow wherein two claimants
sought to extend the discovery rule for cumulative trauma cases from Huff to
single-traumatic-event injury claims. This Court specifically rejected
application of the discovery rule to such claims absent an "accompanying outer
time limit or statute of repose." Coslow, 877 S.W.2d at 614. In doing so, this
Court noted that the legislature had not changed the "date of accident"
language in KRS 342.185(1), despite having numerous opportunities to do so.
Id. Thus, this Court refused to read the statute as encompassing a "date of
discovery" rule for single-traumatic-event injury claims. While this Court
7
addressed the difference between a statute of limitations and a statute of
repose, it did not specifically hold that KRS 342.185(1) is both. Nevertheless,
the net effect of the Coslow opinion has been that KRS 342.185(1) acts as both
in single-traumatic-event injury claims.
In Manalapan Mining Co. v. Lunsford, 204 S.W.3d 601, 605 (Ky. 2006), as
corrected (Oct. 18, 2006), as corrected (Nov. 6, 2006), a hearing loss claim, this
Court specifically held that KRS 342.185(1) acts as both a statute of limitations
and a statute of repose in cumulative trauma claims. Lunsford, who last
worked in 2001, testified he had been exposed to hazardous occupational noise
for 37 years. Id. at 602. In late 2003, Lunsford underwent a hearing exam
and, in early 2004, a physician advised him that he had a noise-related hearing
loss. Id. He filed his claim for benefits related to that hearing loss shortly
thereafter. Id. This Court held that the logic expressed in Coslow of not
applying the discovery rule to a single-traumatic-event injury, absent a statute
of repose, applied to cumulative trauma claims. Id. at 605. Therefore, the
Court held that Lunsford's claim was barred because he did not file it within
two years of his last exposure to hazardous occupational noise. Id.
While we agree that KRS 342.185(1) acts as both a statute of limitations
and a statute of repose, we now disagree with the holding in Lunsford that the
repose aspect of that statute is triggered by the date of last exposure for three
reasons. First, the specific statutory repose periods in KRS 342 all begin to
run when their related statutes of limitations begin to run. In occupational
disease claims, the date of last exposure triggers the running of both periods.
8
KRS 342.316(4)(a). In HIV claims, the date of injurious exposure triggers the
running of both periods. KRS 342.185(2). Therefore, there is a clear legislative
intent that the same date should trigger both limiting provisions.
In cumulative trauma claims, this Court has determined that, for statute
of limitations purposes, the date of accident, which triggers the running of the
statute of limitations, is the date a claimant is informed of a work-related
cumulative trauma injury. To be consistent with the legislative intent as
directly expressed in KRS 342.316(4)(a) and KRS 342.185(2), the repose aspect
of KRS 342.185(1) must also begin to run on the date the statute of limitations
begins to run - the date a claimant is informed of a work-related cumulative
trauma injury.
Second, in Lunsford, the majority tied the limitations and repose periods
to the last date worked or the date of last exposure to the trauma. We have
long held that "[w]orkers' compensation is a creature of statute, and the
remedies and procedures described therein are exclusive." Williams v. E. Coal
Corp., 952 S.W.2d 696, 698 (Ky. 1997). There is no "date of last exposure" or
"date last worked" language in KRS 342.185(1). As the majority noted in
Cos/ow, the legislature has amended KRS 342 numerous times. Id. at 614.
However, it has not added the aforementioned language to KRS 342.185(1).
Finally, KRS 446.080 states that 101 statutes of this state shall be
liberally construed with a view to promote their objects and carry out the intent
of the legislature . . . ." We have long held that KRS Chapter 342 should be
construed so as to effectuate its beneficent purposes, i.e. to compensate injured
9
workers for the effects of their injuries. See Bartley v. Bartley, 274 S.W.2d 48,
49 (Ky. 1954). The majority opinion in Lunsford does exactly the opposite by
setting a different method for determining the triggering date for the statute of
limitations and the period of repose.
In summary, KRS 342.185(1) acts as both a statute of limitations and a
statute of repose. For single traumatic event injuries the running of both
periods begins on the date of accident. For cumulative trauma injuries the
running of both periods begins on the date the injured employee is advised that
he has suffered a work-related cumulative trauma injury. Therefore, this claim
must be remanded to the ALJ so that she can determine when Goodgame was
advied that he suffers from a work-related cumulative trauma injury. She
must then determine if Goodgame filed his claim within two years of that date.
To the extent Lunsford holds to the contrary, it is hereby overruled.
B. Extraterritorial Jurisdiction.
On cross-appeal, Goodgame argues that the Court of Appeals erred in
affirming the ALJ's finding that Kentucky does not have extraterritorial
jurisdiction over injuries suffered in Virginia. KRS 342.670(1) provides that
Kentucky can, under certain limited circumstances, exercise jurisdiction over
injuries suffered in other states. However, the ALJ found that:
[T]he work performed by [Goodgame] in Kentucky was
substantially different than the work performed in Virginia as it
relates to the cumulative trauma averred by [Goodgame]. There is
no evidence of substance that the cumulative trauma (alleged to
have occurred while [Goodgame] worked in Kentucky) continued
after he began working in Virginia.
10
As the fact finder, the ALJ has the sole discretion to determine the
quality, character, and substance of the evidence and may reject any testimony
and believe or disbelieve various parts of the evidence regardless of whether it
comes from the same witness or the same party's total proof. Khani v. Alliance
Chiropractic, 456 S.W.3d 802, 806 (Ky. 2015). If the party with the burden of
proof fails to convince the ALJ, that party must establish on appeal that the
favorable evidence was so overwhelming as to compel a favorable finding.
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
In his appeal to the Board, Goodgame argued that the evidence
supported his claim that he received additional cumulative traumatic injuries
while employed in Virginia. However, the Board did not specifically address
that argument, and Goodgame did not make the argument on cross-appeal to
the Court of Appeals or to this Court. Furthermore, while Goodgame pointed to
evidence at the Board level that would have supported a different conclusion,
he did not point to any evidence that would have compelled a favorable finding
on this issue. Therefore, we need not address whether Kentucky has
extraterritorial jurisdiction because the ALJ found that no injury occurred in
Virginia. However, we agree with the ALJ, the Board, and the Court of Appeals
that Kentucky does not have extraterritorial jurisdiction over any claim arising
from a Virginia injury.
IV. CONCLUSION.
We affirm the Court of Appeals, in part, and vacate the ALJ's opinion
finding that Goodgame did not timely file his claim for cumulative traumatic
11
injury suffered in Kentucky. As did the Court of Appeals, we remand this
matter to the A1,,1 for a proper finding regarding when Goodgame's cumulative
trauma injury became manifest. If the Al,,J determines that Goodgame's injury
became manifest more than two years before he filed his claim, she may again
dismiss his claim. However, if she determines that Goodgame timely filed his
claim, she must then determine the extent of his disability that is attributable
to the work he performed in Kentucky.
All sitting. All concur.
COUNSEL FOR APPELLANT/CROSS-APPELLEE,
CONSOL OF KENTUCKY, INC.:
Jeffrey Robert Soukup
COUNSEL FOR APPELLEE/CROSS-APPELLANT,
OSIE DANIEL GOODGAME, JR.:
Sherry Brashear
12