FRANKFORT, KY - The Kentucky Court of Appeals, in a divided opinion, recently held unconstitutional Ky. Rev. Stat. § 342.316, to the extent that it requires a coal workers' pneumoconiosis ("CWP") claimant to come forward with clear and convincing evidence in order to overcome the consensus of a three-physician panel who have reviewed the claimant's chest x-rays and indicated the claimant did not have the condition. The claimant contended in relevant part that the "clear and convincing evidence" standard for coal workers sharply contrasted with the prevailing standard applied to workers seeking compensation for other pneumoconiosis claims such as exposure to limestone, various particulates, talc, and graphite. In its majority opinion, the court agreed, indicating that it was unreasonable and improper to impose more onerous procedural and substantive burdens on coal workers than on others.
The case involved the claim of a 62-year-old former coal miner who had worked in the underground coal mines of Western Kentucky for approximately 37 years. He sought benefits for coal workers' pneumoconiosis and, as required by the statute, attached an x-ray interpretation by a physician who opined that the claimant was positive for CWP. When the employer's expert indicated that the claimant's x-rays were negative for CWP, the matter was referred to a three-physician panel of "B" readers. One of the panel indicated the claimant was positive for CWP. The other two said no. Since a consensus had been reached, the administrative law judge applied the statutory presumption of correctness contained in Ky. Rev. Stat. § 342.316(13), finding that the claimant had failed to come forward with clear and convincing evidence that it was wrong. The Board affirmed and the claimant appealed.
In Gardner v. Vision Mining, Inc., decided April 9, 2010, a majority of the court of appeals indicated that while the Supreme Court of Kentucky had earlier determined that Ky. Rev. Stat. § 342.316 did not violate equal protection of the law by treating CWP claims differently from claims for traumatic injury [see Durham v. Peabody Coal Co., 272 S.W.3d 192, 195 (Ky. 2008)], such a distinction between classes of persons suffering the same condition could not be sanctioned. The majority indicated that the only distinction between CWP claimants and other pneumoconiosis claimants was the source of the disease. In all other respects, the disease process and the nature, extent and duration of the disease were the same. Imposing more onerous procedural and substantive burdens on coal miners was unreasonable and, therefore, unconstitutional.
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Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law
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