Day v. Fairbanks Coal Co.

160 S.W.3d 777, 2005 Ky. LEXIS 132, 2005 WL 924242
CourtKentucky Supreme Court
DecidedApril 21, 2005
Docket2004-SC-0262-WC, 2004-SC-0289-WC
StatusPublished
Cited by1 cases

This text of 160 S.W.3d 777 (Day v. Fairbanks Coal Co.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Day v. Fairbanks Coal Co., 160 S.W.3d 777, 2005 Ky. LEXIS 132, 2005 WL 924242 (Ky. 2005).

Opinion

OPINION OF THE COURT

An Administrative Law Judge (ALJ) rejected the claimant’s challenge to the consensus reached by three B-readers as well as his argument that the underlying reports were inadmissible under KRS 342.316(3)(b)l. because they identified the x-ray that was interpreted by a letter of the alphabet rather than the date on which it was taken. Relying on the consensus classification, the ALJ dismissed the application for pneumoconiosis benefits. Although the Workers’ Compensation Board (Board) affirmed, the Court of Appeals reversed and remanded the claim. Its rationale was that the B-readers’ reports were based on undated x-rays and that KRS 342.316(3)(b)l. unambiguously required an x-ray to contain the date on which it was taken in order to be admissible as evidence.

It is undisputed that the claimant was exposed to coal dust while working for the defendant-employer and that he quit working on July 11, 1997, due to a back injury. On November 15, 2002, he filed an application for benefits under the July 15, 2002, version of KRS 342.732, alleging that he suffered from coal workers’ pneumoconio-sis. 1 Accompanying the application was a *779 report by Dr. Alexander. The report indicated that Dr. Alexander evaluated a September 12, 2002, x-ray and found abnormalities that were consistent with category 1/1 pneumoconiosis.

On February 6, 2003, the employer submitted a report by Dr. Dahhan, which indicated that he examined the claimant on January 27, 2003. The report also indicated that Dr. Dahhan evaluated a January 27, 2003, x-ray and found no abnormalities that were consistent with pneumoconiosis.

As provided in KRS 342.316(3)(b)4.e., on February 24, 2003, the Commissioner of the Department of Workers’ Claims notified the parties that the reports were not in consensus. The letter stated that the x-rays the parties had filed would be forwarded to three B-readers for interpretation and that the parties would be notified at the conclusion of the process. The x-rays the parties submitted were then forwarded to Drs. Rosenberg, DePonte, and Lockey to select and interpret the highest quality film.

Dr. Rosenberg’s March 5, 2003, report and accompanying letter indicated that he interpreted x-ray “G,” which he graded as quality 2 because it was light. He found no abnormalities that were consistent with pneumoconiosis but did find evidence of old granulomatous disease that was consistent with a past infection such as tuberculosis.

Dr. DePonte’s March 19, 2003, report indicated that she interpreted x-ray “G,” which she graded as quality 1. She found abnormalities that were consistent with category 0/1 pneumoconiosis.

Dr. Lockey’s March 21, 2003, report indicated that he interpreted x-ray “G,” which he graded as quality 1. He found no abnormalities that were consistent with pneumoconiosis and classified the profusion as category 0/0. He stated that the abnormalities he found were consistent with old TB or histoplasmosis.

Among other things, KRS 342.316(3)(b)l. requires that x-rays be indelibly labeled with the date on which they were taken and that reports of x-ray interpretations contain the date of the x-ray in order to be admissible as evidence. The x-rays the parties submitted are not part of the record on appeal, but there is no assertion that they failed to comply with the statute when the parties submitted them. Nonetheless, all of the B-readers’ reports identified the x-ray that was chosen for interpretation with the letter “G,” and none contained the date of the x-ray that was interpreted. An internal form that was used by the Department to record party and panel x-ray readings indicates, however, that the x-ray Drs. Rosenberg, DePonte, and Lockey chose to interpret was the one submitted by the claimant. It also notes the category that each physician reported as well as the existence of a consensus. In a letter dated April 3, 2003, the Commissioner notified the parties that the B-reader reports had been reviewed, that there was a consensus reading, and that the claim would be assigned to an AL J.

The claimant challenged the consensus reading. Among other things, he asserted that it was based on reports that failed to list the date of the x-ray that was interpreted or to indicate that the reader found it to be the highest quality film. The employer proceeded to depose Drs. Dah-han and Lockey. It also filed into evidence the reports from Drs. Rosenberg, Lockey, and DePonte. Objecting, the claimant asserted that the reports were inadmissible because they did not comply with KRS 342.316(3)(b)l. He also maintained that the regulations permitted the parties to file only one medical report, and the employer had already filed a report from Dr. Dahhan.

*780 When the claim came before the ALJ, the contested issues included, among other things, the claimant’s challenge to the consensus reading and his challenge to the admissibility of the panel members’ reports. The ALJ noted that the Commissioner had certified a consensus of category 0/0 to 0/1 and that the certification was consistent with the criteria set forth in KRS 342.316(3)(b)4.f. Although acknowledging that the three reports did not list the date of the x-ray that was interpreted, the ALJ noted that they all identified the x-ray with the letter “G.” Convinced that the letter was equivalent to a date under the circumstances, because it clearly designated which x-ray the B-reader interpreted, the ALJ rejected the argument that the reports were inadmissible as evidence. After determining that there was no clear and convincing evidence the consensus reading was erroneous, the ALJ concluded that a decision must be based on the reading and dismissed the claim. KRS 342.316(13); KRS 342.794(2). Finally, the ALJ stated that Dr. Dahhan would have been found to be the most credible of the physicians had there been no consensus and that the claim would have been dismissed based on his reading of category 0/0.

KRS 342.316 provides, in pertinent part, as follows:

(3) The procedure for filing occupational disease claims shall be as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
160 S.W.3d 777, 2005 Ky. LEXIS 132, 2005 WL 924242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-fairbanks-coal-co-ky-2005.