Consol of Kentucky, Inc. v. Osie Daniel Goodgame Jr

• Court: Kentucky Supreme Court
• Decided: September 21, 2015
• Docket: 2014 SC 000305
• Status: Unknown

Opinion

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