WORKERS COMP – pneumoconiosis, clear and convincing evidence standard to rebut panel’s findings: Larry Cain v. Lodestar Energy, Inc.; Hon. J. Landon Overfield, AJL; Workers’ Compensation Board (SC 3/19/2009)

Larry Cain v. Lodestar Energy, Inc.; Hon. J. Landon Overfield, AJL; Workers’ Compensation Board
2008-SC-000178-WC March 19, 2009
Opinion of the Court; all sitting; Justice Scott concurs in result only.

Under KRS 342.732(1)(a), workers that are diagnosed with category-1 coal workers’ pneumoconiosis, but who do not exhibit significant respiratory impairment are entitled to a retraining incentive benefit (RIB). Cain submitted a chest x-ray determined to show a category-2 disease. The x-ray submitted by the employer was determined to show a category-1 disease. Since the two reports were not in consensus, the x-rays were submitted to a panel of “B” readers as required under KRS 342.316(3)(b)4.e. Despite the fact that the evidence submitted by both parties showed at least a category-1 disease, the panel reached a consensus of a category-0 and the ALJ dismissed the claim.

The Supreme Court, consistent with its 2008 decision in Harper, rejected Cain’s argument that KRS 342.316 was unconstitutional on its face since it a) imposed a higher clear-and-convincing standard to rebut a panel’s finding whereas other claimants need only prove their injuries by a preponderance of the evidence; and b) coal workers are only permitted to prove their disease with x-ray evidence, thus excluding a workers’ credible testimony. However, the Supreme Court held that KRS 342.316 was unconstitutional on equal protection grounds as applied to Cain and similarly situated workers whose employer also submitted evidence of a category-1 disease but whose claim was not subject to panel review. The Court further held that there is no rational basis for a claim to be submitted to review by a consensus panel when the worker’s and employer’s evidence both support the conclusion that the worker is entitled to a RIB award.

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