Cal Glo Coal Co. v. Mahan

729 S.W.2d 455, 1987 Ky. App. LEXIS 449
CourtCourt of Appeals of Kentucky
DecidedMarch 13, 1987
StatusPublished
Cited by2 cases

This text of 729 S.W.2d 455 (Cal Glo Coal Co. v. Mahan) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cal Glo Coal Co. v. Mahan, 729 S.W.2d 455, 1987 Ky. App. LEXIS 449 (Ky. Ct. App. 1987).

Opinion

LESTER, Judge.

These are consolidated appeals from orders affirming three awards of the Workers’ Compensation Board against Gatliff Coal Company. In each of these cases, the Board found the claimants to be totally occupationally disabled as a result of pneu-moconiosis or black lung.

The common issue raised in each of these appeals is whether there were sufficient findings to support the Board’s awards, or whether the Board’s finding of pneumoco-niosis, in and of itself, is sufficient to support an award for permanent total disability-

In the first case, 86-CA-1429, the claimant, Vester Mahan, filed a claim alleging pneumoconiosis. Neither the employer nor the Special Fund filed a notice of resistance as required by KRS 342.316(2)(b)(5). The Board then ruled that the requirements for filing notice of resistance are mandatory and thus, granted an award to the claimant for 100% occupational disability.

The employer argued on appeal that CR 6.02 gives the court discretion to enlarge time if failure to act was the result of excusable neglect. Having reviewed the statute as well as the rule cited by appellant, we find that the Board correctly applied KRS 342.316(2)(b)(5) in entering an award and order for the claimant. We also find that neither the court, nor the Board, [457]*457abused its discretion in denying the appellant an enlargement of time.

Appellant also argues, however, that even if the failure to file a resistance is in the nature of a default, the claimant must still introduce evidence of the extent of his disability. However, under the statute, it appears that the filing of the application accompanied by the two medical reports, shall create a rebuttable presumption that the disability was due to pneumoconiosis and “the burden of proof shall immediately shift to the employer.” KRS 342.-316(2)(b)2.

Here, appellee complied with the statute and performed his duty to introduce medical evidence to prove his claim. As a result, the burden shifted to appellant to rebut the presumption with evidence that appellee did not suffer from pneumo-coniosis. Wells v. Hamilton, Ky.App., 645 S.W.2d 353, 355 (1983).

Since neither the employer nor the Special Fund rebutted the presumption of pneumoconiosis and since the extent of disability or amount of compensation was not raised by either defendant, we believe the judgment awarding maximum compensation should be affirmed. Yocum v. Harrison, Ky., 517 S.W.2d 231 (1974). In this case, the award was akin to a default judgment procedure and we find no error. Young v. Daniels, Ky., 481 S.W.2d 295 (1972).

However, in turning to the other two cases on appeal, we believe we should point out that the presumption contained in KRS 342.316 concerns causation, not disability. Appellant, in both of these cases, asserts that the Board equated its findings that the claimants suffered from pneumoconiosis with an award for permanent total disability. Appellees contend that the Board’s awards of total occupational disability were supported by findings as to the respective claimants’ age, education, and work history-

As we stated previously, under KRS 342.316, a presumption as to causation arises and the burden of proof shifts to the employer following the filing of the claim. However, appellants met their burden in the two remaining cases by the introduction of testimonial medical evidence. In Wells v. Hamilton, Ky.App., 645 S.W.2d 353 (1983), we held that at this point the presumption disappears and the Board is required to consider the conflicting evidence and make an independent factual determination as to whether the appellee suffers from pneumoconiosis. In both of the remaining cases, it appears that the Board weighed the conflicting testimony and found the testimony of the claimants’ witnesses more credible and persuasive. This is proper and will not be disturbed on appeal. Young v. Burgett, Ky., 483 S.W.2d 450 (1972). Still, this only resolves the issue of whether or not the claimants suffer from pneumoconiosis. We are inclined to agree with appellant that it is not so readily apparent that the Board considered testimony and made a finding based thereon, as to the extent of the “occupational disability,” if any, resulting from the disease.

We have held that the existence of coal workers’ pneumoconiosis does not, standing alone, require an award of permanent total disability. Young v. Shepherd, Ky., 451 S.W.2d 608 (1970); Princess Mfg. Co. v. Jarrell, Ky., 465 S.W.2d 45 (1971). We have also held that the Board is required to make specific findings to uphold its ultimate conclusions. Chemetron Corp. v. McKinley, Ky.App., 574 S.W.2d 332 (1978); Shields v. Pittsburgh & Midway, Ky.App., 634 S.W.2d 440 (1982).

In the case at bar, the Board failed to make sufficient findings to support its conclusions that the two claimants were totally and permanently disabled. The Board made absolutely no findings with respect to occupational disability. We find these cases to be indistinguishable from our holding in Shields v. Pittsburgh & Midway, Ky.App., 634 S.W.2d 440 (1982), wherein we stated:

It is not the intention of the Court to place an impossible burden on the Workers’ Compensation Board but only to point out that the statute and the case law require the Board to support its conclusions with facts drawn from the evidence in each case so that both sides may be dealt with fairly and be properly ap[458]*458prised of the basis for the decision. Id. at 444.

Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), clearly sets out the standard for an award of total disability.

If the board finds that the workman is so physically impaired that he is not capable of performing any kind of work of regular employment, or if the board finds that regular employment in the kind of work the man can perform is not available on the local labor market, the man will be considered to be totally disabled.

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729 S.W.2d 455, 1987 Ky. App. LEXIS 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cal-glo-coal-co-v-mahan-kyctapp-1987.