Jeffery Mullins v. Lone Mountain Processing

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: JANUARY 20, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0295-WC
JEFFERY MULLINS APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2020-CA-0319
WORKERS’ COMPENSATION BOARD NO. WC-17-02201
LONE MOUNTAIN PROCESSING; APPELLEES
HONORABLE RALPH R. CASE,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
I. BACKGROUND
Jeffery Mullins (Mullins) worked in the mining industry for thirty-nine
years. Twenty-four of those years were spent employed by Lone Mountain
Processing (Lone Mountain) and its predecessor. In 2017, after years of
symptoms, Mullins filed a claim alleging that he had contracted coal workers’
pneumoconiosis, known colloquially as “black lung.” After examinations by
several doctors, Mullins was found to have coal workers’ pneumoconiosis
causing total disability. An Administrative Law Judge (ALJ) ultimately awarded
Mullins $835.04 per week subject to the tier down mechanism in KRS
342.730(4) for total disability.
In arriving at his determination, the ALJ used the 1994 version of KRS
342.730. This is because in 2017, this Court found the more-recent 1996
version of the statute to be unconstitutional on equal protection grounds.
Parker v. Webster Cnty. Coal, LLC, 529 S.W.3d 759, 770 (Ky. 2017). Under the
1994 version, beginning at age 65, Mullins’s benefits would decrease by 10%
each year until he reached the age of 70. After age 70, he would receive 40% of
his original award for the rest of his life.
Mullins’s award came only one month before the implementation of a
new version of the statute, however: the award was given June 18, 2018, and a
new version of KRS 342.730 went into effect on July 14, 2018. This new
version would have the effect of terminating all of Mullins’s benefits at 70-
years-old, rather than allowing him to retain 40% at that age. Seeking to apply
the newest version of the statute, Lone Mountain appealed the ALJ’s decision
to the Workers’ Compensation Board.
To the Board, Lone Mountain argued that the recently-enacted version of
KRS 342.730 should apply retroactively to Mullins’s award. Mullins argued
that the most recent version of the statute should not apply because it worked
against the purpose of the Workers’ Compensation Act by depriving disability
benefits to elderly injured workers. Because the legislation applied
retroactively, the Board found for Lone Mountain. Mullins appealed the Board’s
decision.
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Mullins argued for the first time to the Court of Appeals that no version,
current or prior, of KRS 342.730 should apply to the termination of his
benefits. Instead, he argued, KRS 342.732(1)(e)—part of Kentucky’s coal
workers’ pneumoconiosis-specific disability benefits statute—should apply to
Mullins’s claim. KRS 342.732(1)(e) states that employees who are totally
disabled by coal workers’ pneumoconiosis shall be paid benefits “during such
disability.” Mullins argued that this language requires that his benefits
continue in perpetuity, rather than terminate at 70-years-old.
However, Mullins failed to state in his brief to the Court of Appeals where
this argument was preserved, violating Civil Rule 76.12. Because Mullins made
an error in his appeal, the court did not consider his argument regarding this
conflict in statutes. Instead, the Court of Appeals reviewed the Board’s decision
that the 2018 version of KRS 342.730 controls for manifest injustice only.
Finding no such injustice that “seriously affected the fairness, integrity, or
public reputation of the proceeding,” the Court of Appeals affirmed without
analyzing which statute (KRS 342.730 or, as Mullins argued, KRS
342.732(1)(e)) properly applies to such claims. Kingrey v. Commonwealth, 396
S.W.3d 824, 831 (Ky. 2013). This appeal followed.
II. ANALYSIS
Although KRS 342.285 allows for the Board to review otherwise
unpreserved arguments where the ALJ’s order “is not in conformity with the
provisions of [chapter 342],” the same is not true for appeals from the Board.
By arguing for the first time on appeal from the Board that KRS 342.732(1)(e)’s
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termination provision applies, Mullins is “feeding one can of worms” to the
Workers’ Compensation Board and “another to the appellate court.” See
Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other
grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). Because
Mullins did not argue in favor of the termination provision in KRS 342.732 to
either the ALJ or the Board, his arguments were not “precisely preserved and
identified” for appellate review. Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky.
1986) (citing Combs v. Knott Cnty. Fiscal Ct., 141 S.W.2d 859 (Ky. 1940); CR
76.12(4)(c)(iv)). We therefore do not have the authority to review an argument
that neither the ALJ nor the Board had an opportunity to address. See Ten
Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009).
While we note that there is an apparent conflict as-written between KRS
342.730(4) and KRS 342.732(1)(e) requiring clarification, we are constrained to
decline to review the issue, for the reasons set forth above. Accordingly, we
affirm the Board’s determination.
Minton, C.J.; Conley, Hughes, Keller, Nickell and VanMeter, JJ., sitting.
All concur. Lambert, J., not sitting.
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COUNSEL FOR APPELLANT:
McKinnley Morgan
Morgan Collins Yeast & Salyer
COUNSEL FOR APPELLEE, LONE MOUNTAIN PROCESSING:
Denise Moore Davidson
Davidson & Associates
APPELLEE, ADMINISTRATIVE LAW JUDGE:
Honorable Ralph R. Case
APPELLEE, WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey
Chairman
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