Lane v. Tennco Energy Inc., 012221 KYWC, 201901321

• Case Date: January 22, 2021
• Court: Kentucky

RICHARD LANE PETITIONER v. TENNCO ENERGY INC.1 And HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE RESPONDENTS No. 201901321, 201901223, 201901221 Kentucky Workers Compensation Commonwealth of Kentucky Workers’ Compensation Board January 22, 2021           APPEAL FROM HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE.           COUNSEL FOR PETITIONER: HON JOHN HUNT MORGAN LMS           COUNSEL FOR RESPONDENT: HON BARRY LEWIS LMS           BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.          OPINION           STIVERS, Member.          Richard Lane (“Lane”) seeks review of the September 28, 2020, Opinion and Order of Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) dismissing his claims for cumulative trauma injuries, hearing loss, and coal workers’ pneumoconiosis (“CWP”) alleged to have arisen out of his employment with Tennco Energy Inc. (“Tennco”). Lane also appeals from the October 19, 2020, Order overruling his Petition for Reconsideration.          On appeal, Lane challenges the ALJ’s dismissal of his CWP claim for failure to give due and timely notice. As this appeal pertains only to the dismissal of Lane’s CWP claim, only the evidence and the ALJ’s finding concerning the CWP claim will be addressed.          BACKGROUND          On October 4, 2019, Lane filed a claim for cumulative trauma injuries against Tennco listing the date of injury as January 21, 2019. On that same date, Lane filed a claim for work-related hearing loss against Tennco. Lane filed numerous documents with his claims including a July 11, 2019, letter from his attorney to Tennco advising he would be filing, on Lane’s behalf, a claim for CWP, cumulative injuries due to wear and tear, and hearing loss sustained while employed by Tennco in the coal mines. By Order dated October 28, 2019, the ALJ consolidated the two claims.          On October 29, 2019, Lane filed the CWP claim. Among the documents attached are his work history and a PFT report of Dr. Aqeel Mandiwala setting forth his findings concerning Lane’s FVC/FEV1. Lane also filed a “B” Reading Interpretation of Dr. Kathleen DePonte, a Board Certified Radiologist and NIOSH Certified B Reader, performed on September 11, 2019. Dr. DePonte read the x-ray as revealing a radiographic classification of category 3/2. She opined as follows: “classic diagnostic findings of severe simple and mild complicated coal workers’ pneumoconiosis. CT may reveal other large opacities obscured by the high profusion.” Lane also attached the July 11, 2019, letter from his attorney advising Tennco of the intent to file three workers’ compensation claims.          Lane testified at a November 19, 2019, deposition and at the July 30, 2020, hearing. At the time of his deposition, Lane was 53-years-old and was last employed by Tennco.^[2] He is a high school graduate.          Lane testified he last worked for Tennco on January 21, 2019, as a shuttle car operator in an underground coal mine, and he worked for Tennco approximately ten years. At the time he quit, Lane had worked from 3:00 a.m. To 3:00 p.m. six days a week earning $21.00 an hour, and he worked approximately 70 hours a week. Lane testified that except for the period from 2003 to 2005 when he hauled mail from London to Lexington twice a day, he continuously worked in the coal mining industry from 1984 through January 21, 2019.^[3] As of January 21, 2019, Lane possessed an underground mining certificate, foreman’s papers, and a Medical Emergency Technician (MET) designation. He stopped working because of a mine fatality. He explained as follows:

Q: What was the reason that you stopped working at that time?

A: Well, we had a mining fatality.

Q: Someone at Tenneco?

A: Yes.

Q: What type of accident was it?

A: Jeff Slone got run over by a shuttle car.

Q: Were you involved in the accident?

A: Yes.

Q: Were you the operator?

A: Yes.

Q: So did you resign or were you terminated or specifically what was the reason that you stopped working?

A: Want me to tell him?

Mr. Morgan: Yeah.

A: Well, I don’t know how to put this. Well, when I run over the guy, evidently I failed a drug test and they took all of my certifications away.

Q: Was that an MSHA investigation?

A: Yes, but the investigation was ruled that it wasn’t my fault through the federal.

Q: Did you get interviewed by the investigators and cooperate with them?

A: Yes.

Q: Were you taken somewhere for that drug test?

A: Yes, I was took to Doctor Dahhan.

Q: How did you get there? Somebody from Tenneco or did you go on your own or how did you –

A: The inspector drove me.

Q: So the MSHA agency got the drug test and took some sort of action against you?

A: Yes.

Q: So without the certification you were not allowed by your employer to return to work?

A: Yeah, I was forced out.

         Lane denied filing any previous workers’ compensation claims.          At the hearing, the parties identified the following evidence upon which they relied.

Mr. Morgan: … The CT scan of July 8, 2020 as interpreted by Dr. Westerfield, which is not the CWP examiner, but a different Dr. Dr. Westerfield. The PFTs dated May 30^th, 2019 by Dr. Mandiwala, M-A-N-D-I-W-A-L-A, of Saint Joseph Hospital, which was attached to the Form 102 Application. The ILO Report dated September 11, 2019 as interpreted by Dr. De Ponte and which was attached to the Form 102 Application. The CT reports dated February 7^th, 2020, as interpreted by Dr. De Ponte, which was filed via Notice of Filing of February 14, 2020. And, finally, the medical treatment of Dr. De Ponte regarding the use of CT scans for diagnosing Coal Workers’ Pneumoconiosis, as well as the Notice Letters, which were also filed via LMS relative to notice to the employer.

...

Mr. Lewis: … In the State Black Lung Claim, report of Dr. Jarboe, J-A-R-B-O-E, and report of Dr. Kendall, K-E-N-D-A-L-L, as records of the Kentucky Department of Workers’ Claims and Mine Safety and Review Commission. …

         Lane testified he has not worked since January 21, 2019. He worked 34 years in the coal industry, all of them underground. During this 34-year period, he was exposed to coal dust. Regarding the previous CWP claim he filed, Lane offered the following testimony:

Q: Now, you’ve known you’ve had Coal Workers’ Pneumoconiosis for a while; is that correct –

A: (Interrupting) Yes.

Q: -- Black Lung?

A: Yes.

Q: And I think you actually pursued a retraining incentive benefit claim years ago with the state of Kentucky, correct?

A: Yes.

Q: And so that claim was of record then, on record. And did you collect in that claim?

A: Yes.

…

Q: Now, the State department of Workers’ Claims has a record on you of a previous State Black Lung Claim filing No. 2003-01409. Richard Lane vs. Simpson Mining. Did you file a previous State Black Lung Claim against a prior employer?

A: Yes, that was back in 2003.

Q: Yeah. And the case file states you were represented by counsel, Mr. Ronald Cox in Harlan?

A: Yes.

Q: And the settlement agreement states that you had some X-rays interpreted as positive for Black Lung Disease by Dr. Michael Alexander and Dr. Matthew Vuskovich. That’s V-U-S-K-O-V-I-C-H. Do you remember those X-rays coming back?

A: Yes.

Q: And the settlement agreement also states that you had a May 7, 2004 Black Lung exam with Dr. Glen Baker, a pulmonary specialist in Corbin?

A: Yes.

Q: So you had those positive X-rays and that exam with Dr. Baker back in 2003 and 2004?

A: Yes.

         Dr. B.T. Westerfield’s December 5, 2019, report, generated as a result of a referral by the Commissioner of the Department of Workers’ Claims, was introduced. Dr. Westerfield’s opinions are as follows:

1. It is my opinion Mr. Richard Lane suffers from Simple Coal Workers’ Pneumoconiosis at this time. Mr. Lane certainly has adequate history of exposure to coal mine dust to develop Black Lung and I interpret his chest x-ray as showing opacities in all lung fields at ILO Profusion Category 2/3.

2. Based on pulmonary function testing it is my opinion that Mr. Lane has no pulmonary impairment and no respiratory disability at this time. He should certainly have no additional exposure to coal mine dust.

         Tennco...