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# ACTION.RENDERED: M ARCH 26, 2020

2019-SC-000418-WC

APPELLANT REX COAL CO., INC.

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2019-CA-000037

WORKERS ’ COMPENSATION BOARD NO. 17-WC-00282

EARL BEGLEY; HONORABLE R. ROLAND APPELLEES

CASE, ADMINSTRATIVE LAW JUDGE; AND

WORKERS ’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Earl Begley developed coal workers ’ pneumoconiosis (CWP) over the

course of his employment in the coal mines in Eastern Kentucky. He initiated a

claim for benefits pursuant to Kentucky Revised Statutes (KRS) Chapter 342,

the Workers ’ Compensation chapter. After reviewing the evidence, an

Administrative Law Judge (ALJ) granted income benefits to Begley,

commencing those benefits on the last day of his employment with Rex Coal

Co., Inc. (Rex Coal). Rex Coal appealed to the Workers ’ Compensation Board

(the Board) which affirmed the ALJ. Rex Coal next appealed to the Court of

# O

Appeals, which affirmed the Board ’ s decision. Rex Coal now appeals to this

Court.

I. BACKGROUND

Begley worked in the coal industry for approximately twenty (20) years.

His last employer in that industry was Rex Coal, with whom he was employed

from 1999 until he was laid off in November 2015. His last date of work with

Rex Coal was November 8, 2015. After being laid off, Begley collected

unemployment benefits for approximately six (6) months before obtaining

employment as a bus driver for the Harlan County Board of Education. He did

not return to a job involving the severance or processing of coal. 1

On January 20, 2017, Begley was diagnosed with simple CWP, category

1/2 by Dr. Glen Baker. On February 16, 2017, Begley filed a Form 102

Application for Resolution of Claim

- Occupational Disease, alleging that he

suffers from CWP. On July 21, 2017, Begley was evaluated by Dr. Thomas

Jarboe, who was hired by Rex Coal. Dr. Jarboe opined that Begley did not

suffer from CWP. Begley next underwent an evaluation by Dr. Sanjay Chavda

on April 26, 2018. He was directed to see Dr. Chavda by the Department of

Workers ’ Claims, pursuant to KRS 342.316. 2 Dr. Chavda relied on an x-ray

1 KRS 342.732(6) prohibits income or retraining incentive benefits to be paid to

an employee while the employee “ is working in the mining industry in the severance or

processing of coal. ”

2 KRS 342.316(4)(b) states as follows:

The procedure for determination of occupational disease claims shall be

as follows:...

b. The commissioner shall assign the claim to an administrative law

judge and shall promptly refer the employee to a duly qualified “ B ” reader

2

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performed by Dr. Crum and agreed with Dr. Crum in determining that Begley

suffers from CWP category 2/2. Dr. Chavda further found Begley ’ s FEV2 and

FVC functions 3 were greater than 80%. Finally, Dr. William Kendall, hired by

Rex Coal, reviewed Begley ’ s three previous x-rays and found no evidence of

CWP.

The ALJ reviewed all of the evidence presented to him and entered an

opinion, order, and award. The ALJ relied on Dr. Chavda ’ s conclusions and

thus found that Begley had a 25% disability rating 4 and awarded permanent

partial disability benefits commencing on July 7, 2014. The ALJ later corrected

the commencement date of benefits to November 8, 2015, Begley ’ s last day of

exposure, seemingly indicating that the July 7, 2014 date included in his

original order was merely a typographical error.

Rex Coal filed a petition for reconsideration asserting that the ALJ

erroneously relied on Dr. Chavda ’ s opinion and that the commencement date of

the benefits was contrary to KRS 342.316(l)(b). 5 Rex Coal ’ s argument regarding

the commencement date of the benefit payments is the only relevant argument

physician who is licensed in the Commonwealth and is a board-certified

pulmonary specialist as set forth pursuant to KRS 342.315 and

342.794(1). The report from this examination shall be provided to all

parties of record.

3 FEV2 and FVC are measures of pulmonary function as determined by

spirometric testing.

4 KRS 342.732(l)(b)l creates an irrebuttable presumption of a 25% disability

rating for a claimant with category 2/2 CWP and spiro metric test values of 80% or

more of the predicted normal values.

5 KRS 342.316(l)(b) states, “ The time of the beginning of compensation

payments shall be the date of the employee ’ s last injurious exposure to the cause of

the disease, or the date of actual disability, whichever is later. ”

3

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to this appeal. Rex Coal argued that the proper award must begin on the date

Begley ’ s CWP “ actually manifested. ” Rex Coal further argued that no evidence

was presented that Begley suffered from CWP on the date of his last exposure

and that the earliest indication that Begley had acquired CWP was the x-ray

performed by Dr. Baker on January 20, 2017. The date of this x-ray, being

later than the date of Begley ’ s last injurious exposure, was the correct

commencement date of Begley ’ s benefits. Therefore, Rex Coal argued, the ALJ

erred in commencing Begley ’ s benefits on the date of his last exposure.

The ALJ overruled Rex Coal ’ s petition for reconsideration, again relying

on Dr. Chavda ’ s opinions and finding that Begley ’ s last date of exposure was

the appropriate commencement date of benefits, as Begley reported

experiencing shortness of breath and cough prior to the end of his employment

in the coal mines. Specifically, the ALJ said, “ attention is directed to the report

of Dr. Chavda wherein he indicated Mr. Begley has had shortness of breath

and cough for four years, which would be prior to him ceasing to labor. ”

Therefore, the ALJ found that commencing Begley ’ s benefits on the date of his

last injurious exposure was consistent with KRS 342.3 16(l)(b).

Rex Coal appealed to the Board arguing only that, pursuant to KRS

342.316, the commencement date of the benefits should have been January

20, 2017, the date on which Begley was first diagnosed with CWP. The Board,

however, unanimously affirmed the ALJ, determining that a claimant could

“ suffer [] fro m the harmful effects of CWP prior to the time ” he is diagnosed with

the disease. In this case, the Board acknowledged that none of the physicians

4

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offered an opinion specifically addressing when Begley first began suffering

from the harmful effects of CWP. Nonetheless, the Board noted that Dr.

Chavda ’ s and Dr. Jarboe ’ s reports both established that Begley reported

experiencing the symptoms of CWP years prior to their examinations and well

before the date of Begley ’ s last injurious exposure. The Board found the reports

of Dr. Chavda and Dr. Jarboe to constitute the requisite medical evidence to

support the ALJ ’ s decision. Therefore, the Board concluded, substantial

evidence supported the ALJ ’ s determination to begin the award on the date of

Begley ’ s last injurious exposure.

Rex Coal then appealed to the Court of Appeals. The Court of Appeals

noted, as did the Board, that none of the physicians offered an opinion on

when Begley ’ s CWP became disabling. We note that it does not appear any of

the physicians were ever asked when Begley ’ s CWP became disabling. The

Court of Appeals, however, held that substantial evidence supported the ALJ ’ s

finding regarding commencement of payments, relying on the reports of Dr.

Chavda and Dr. Jarboe. The Court of Appeals unanimously affirmed the Board.

Having reviewed the record and the law, we affirm the Court of Appeals.

II. STANDARD OF REVIEW

Review by this Court of workers ’ compensation cases is limited “ to

address [ ing] new or novel questions of statutory construction, or to

reconsider [

ing] precedent when such appears necessary, or to review [ ing] a

question of constitutional magnitude. ” Western Baptist Hospital v. Kelly, 827

S.W.2d 685, 687 (Ky. 1992). Rex Coal argues that this case is a matter of

5statutory interpretation and that this Court must engage in a de novo review of

the ALJ ’ s decision. See Saint Joseph Hospital v. Frye, 415 S.W.3d 631, 632 (Ky.

2013). We disagree.

First, Rex Coal ’ s argument to the lower courts as well as to this Court

includes the assertion that the statutory language of KRS 342.316 is clear and

unambiguous. Further, in its petition for reconsideration to the ALJ, Rex Coal

merely argued that there was no evidence Begley ’ s actual disability began when

employment ceased. To support this, Rex Coal argued to the ALJ that Begley

received unemployment benefits which required that he certify that he was able

to work; that there was no evidence Begley suffered from CWP on the date of

his last injurious exposure; and that there was no indication in the record that

Begley had CWP prior to his diagnosis. Rex Coal urged the ALJ to “ issue a

decision supported by the record, pointing out the specific evidence that

supports his decision. ” Not once did Rex Coal argue to the ALJ that KRS

342.316 needed to be interpreted or that the ALJ ’ s interpretation of the

language of that statute was incorrect. Rex Coal merely argued that the

evidence did not support the ALJ ’ s decision. This Court has long held that a

litigant is not permitted to “ feed one can of worms to the trial judge and

another to the appellate court. ” Kennedy v. Commonwealth, 544 S.W.2d 219,

222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312

S.W.3d 321 (Ky. 2010).

At all appellate levels, Rex Coal has argued that the ALJ ’ s award was “ in

direct conflict with the plain and explicit language of the statute. ” Rex Coal has

6

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also argued that the language of KRS 342.316 is clear and unambiguous. Yet,

Rex Coal now implores this Court to engage in a de novo review of a statute

that Rex Coal argues has both “ plain and explicit ” and “ clear and

unambiguous ” language. Therefore, we question the basis of Rex Coal ’ s

arguments regarding the standard of review and whether those arguments were

properly presented to the ALJ and lower courts.

Regardless of the arguments to the lower courts, however, based on our

review of the arguments of the parties and the entire record, we need not

engage in a de novo review of the ALJ ’ s decision. This case does not require us

“ to address new or novel questions of statutory construction, or to reconsider

precedent when such appears necessary, or to review a question of

constitutional magnitude. ” Kelly, 827 S.W.2d at 687. KRS 342.316 is sufficient

as written, and therefore, we have the ability to decide this matter. We must

merely determine if the ALJ ’ s decision was supported by substantial evidence.

See Wetherby v. Amazon.com

, 580 S.W.3d 521, 526 (Ky. 2019).

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). In doing so, an ALJ 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. Caudill v. Maloney ’ s Discount

Stores, 560 S.W.2d 15, 16 (Ky. 1977). When the evidence is conflicting, it is for

the ALJ to choose whom and what to believe. Pruitt v. Bugg Brothers, 547

S.W.2d 123 (Ky. 1977). However, when there are mixed questions of fact and

7law, we have greater latitude in determining if the underlying decision is

supported by probative evidence. Purchase Transportation Services v. Estate of

Wilson, 39 S.W.3d 816, 817-18 (Ky. 2001).

A finding that favors the party with the burden of proof must be upheld

on appeal if it is supported by substantial evidence. Wetherby, 580 S.W.3d at

526 (citing Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999)).

Substantial evidence has been defined as “ evidence of substance and relevant

consequence having the fitness to induce conviction in the minds of reasonable

men. ” Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 270 (Ky. 2018) (internal

quotation marks omitted) (quoting Smyzer v. B.F. Goodrich Chemical Co., 474

S.W.2d 367 (Ky. 1971)). Where such evidence supports a decision, the mere

existence of evidence that would have supported a different result is an

inadequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp., 514

S.W.2d 46 (Ky. 1974). With these standards in mind, we review the issue raised

on appeal.

m. ANALYSIS

KRS 342.3 16(l)(b) states, “ The time of the beginning of compensation

payments shall be the date of the employee ’ s last injurious exposure to the

cause of the disease, or the date of actual disability, whichever is later. ” It is

undisputed that the date of Begley ’ s last injurious exposure is November 8,

2015. This is the date upon which the ALJ began his benefit payments. We

must determine whether substantial evidence exists in the record to support

8the ALJ ’ s order commencing Begley ’ s benefits payments on the date of his last

injurious exposure.

Rex Coal argues that there is no evidence in the record that Begley was

disabled by CWP prior to the cessation of his employment. Rex Coal points out

that Begley received unemployment benefits which required that he certify he

had the ability to work, and subsequently obtained other employment. Finally,

Rex Coal argues that there is no medical evidence in the record that Begley ’ s

reported symptoms were a result of CWP as opposed to the bronchitis and

other respiratoiy issues he had experienced for years.

Begley, on the other hand, argues that he became disabled on the date of

his last exposure. He supports this by pointing out that there was no evidence

he was exposed to coal dust after the last date of his employment with Rex Coal

and that there was no evidence the disease progressed after that date.

Although he does not expressly argue this, he seems to conclude that he must

have had CWP on the date of his last exposure and therefore was disabled no

later than that date.

As the Board and Court of Appeals noted, none of the doctors who

examined Begley specified when Begley ’ s CWP became disabling. Dr. Chavda ’ s

report includes a section titled “ Plaintiff related history of complaints allegedly

due to coal workers ’ pneumoconiosis. ” In that section, Dr. Chavda wrote:

He has had sputum production for about 2 years, 1 tbsp full,

yellow in nature every day. He has wheezing every day for 4 years.

He has shortness of breath with exertion such as walking for about

4 years, cough every day for 4 years. For 3 years he has had 1

pillow orthopnea. He has no smoking history.

9

# o

Dr. Chavda ’ s examination was done in April of 2018, thus placing Begley ’ s

earliest complaints of symptoms in 2014, which was prior to the end of his

employment with Rex Coal. Dr. Chavda also noted that Begley was negative for

chronic bronchitis and COPD and that Begley had been using Albuterol

inhalers about seven times a week for the last four years.

During his examination of Begley on June 22, 2017, Dr. Jarboe noted

the following complaints:

Mr. Begley is short of breath walking 100 yards on level ground at

a regular pace. He has noted this for the last 4 to 5 years. He has a daily cough that is mostly dry. His chest wheezes every now and

then. He estimates he will wheeze 2 to 3 days of the week. He uses

a metered-dose inhaler 4 to 5 times per week. He does not have to

use the inhaler often at night. He says that he cannot sleep on his

back because he feels like there is pressure in his chest. His

wheezing and shortness of breath are worse with perfumes.

Four to five years prior to Dr. Jarboe ’ s examination would place Begley ’ s

earliest complaints of symptoms in approximately 2012 or 2013, which was

prior to the end of his employment with Rex Coal. Although Dr. Jarboe found

no evidence of CWP, he did find some mild ventilatory impairment.

After a thorough review of the record, it is clear that Dr. Chavda ’ s and

Dr. Jarboe ’ s reports constitute substantial evidence to support the ALJ ’ s

determination to begin Begley ’ s benefits payments on the date of his last

injurious exposure. It is of no consequence that Begley was receiving

unemployment benefits and subsequently obtained other employment. He was

working as a school bus driver, a job he evidently could perform even though

he suffered from the above-mentioned limitations. “ [A] worker is not required to

undertake less demanding work responsibilities or to quit working entirely in

10order to establish an occupational disability. ” Alcan Foil Products, a Div. of

Alcan Aluminum Corp. v. Huff, 2 S.W.3d 96, 101 (Ky. 1999). Further, merely

because some of the physicians believed that Begley ’ s symptoms were

attributable to another condition, the ALJ is not precluded from concluding

otherwise when medical evidence, namely Dr. Chavda ’ s report, supports the

ALJ ’ s conclusion. We reiterate that when substantial evidence supports the

ALJ ’ s decision, “ the mere existence of evidence that would have supported a

different result is an inadequate basis for reversal on appeal. ” McCloud, 514

S.W.2d 46. This Court has reviewed the full record and holds that substantial

evidence supported the ALJ ’ s decision.

IV. CONCLUSION

Accordingly, and for the foregoing reasons, we affirm the Court of

Appeals.

All sitting. All concur.

11COUNSEL FOR APPELLANT:

Donnie James Niehaus

Michael Kunjoo

Ward, Hocker & Thornton, PLLC

COUNSEL FOR APPELLEE, EARL BEGLEY:

Johnnie L. Turner

Johnnie L. Turner, P.S.C.

COUNSEL FOR APPELLEE, WORKERS ’ COMPENSATION BOARD:

Michael W. Alvey

Workers ’ Compensation Board

COUNSEL FOR APPELLEE, HON. R. ROLAND CASE, ADMINISTRATIVE LAW

JUDGE:

Honorable Ralph Roland Case

Administrative Law Judge

12