IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION, 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION 

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: DECEMBER 18, 2014 

NOT TO BE PUBLISHED 

,Souprrittr Gurf 7 rttfurkv 

2014-SC-000031-WC 

DONALD EALY APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2013-CA-000527-WC 

WORKERS' COMPENSATION NO. 12-00487 

RC TRUCKING, INC.; 

HONORABLE J. LANDON OVERFIELD, 

CHIEF ADMINISTRATIVE LAW JUDGE; 

AND WORKERS' COMPENSATION BOARD APPELLEES 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Donald Ealy,appeals from a Court of Appeals decision which 

affirmed the dismissal of his coal workers' pneumoconiosis ("CWP") claim 

against Appellee, RC Trucking. The Chief Administrative Law Judge ("CALJ") 

originally dismissed Ealy's claim because he found it was barred by the statute 

of limitations as set forth in KRS 342.316(4)(a). Ealy wants his claim placed in 

abeyance because he believes the General Assembly will revise KRS 342.316 in 

light of Vision Mining, Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011), which held 

that the consensus process applicable to CWP claims was unconstitutional. 

For the below stated reasons, we affirm the Court of Appeals. 
On April 19, 2012, Ealy filed a Form 102-CWP alleging that on March 11, 

2005, his last day of employment with RC Trucking, he became affected by 

CWP. In response, RC Trucking argued that his claim was barred by the threeyear statute of limitations and the five-year statute of repose contained in KRS 

342.316(4)(a) because he filed it seven years after his last contact with the 

occupational hazard. Ealy countered, arguing that a statute of limitations 

cannot exist for an unconstitutional statute. He noted that Vision Mining held 

the required consensus procedure and standard of proof for CWP claims, 

outlined in KRS 342.316(3) and (13), were unconstitutional. The CALJ found 

in favor of RC Trucking and dismissed Ealy's claim as untimely because Vision 

Mining did not address the statute of limitations in KRS 342.316(4)(a). The 

Workers' Compensation Board and Court of Appeals affirmed, and this appeal 

followed. 

It appears that Ealy has abandoned his argument that there cannot be a 

statute of limitations for a statute which has been held to be unconstitutional. 

Instead he pleads for his claim to be placed in abeyance until the General 

Assembly takes action to address the statutes that Vision Mining held to be 

unconstitutional. In reviewing Ealy's arguments the Court of Appeals only 

needed to correct the Board "if it overlooked or misconstrued controlling 

statutes or precedent, or committed an error in assessing the evidence so 

flagrant as of to cause gross injustice. The function of review in our Court is to 

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

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

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constitutional magnitude." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 

687-688 (Ky. 1992). Keeping these standards in mind, we affirm the Court of 

Appeals. 

As an initial matter, we note that Vision Mining did not find KRS 

342.316(4)(a) unconstitutional. Thus, the statute of limitations for a CWP 

claim is in full effect and per KRS 342.316(4)(a) Ealy's claim was untimely 

because he filed his claim seven years after his last contact with CWP causing 

materials. The ALJ did not err by dismissing Ealy's claim for being barred by 

the statute of limitations. Additionally, we decline to place Ealy's claim in 

abeyance until the General Assembly revises the procedure for CWP claimants 

due to Vision Mining. Ealy's argument that the General Assembly will amend 

the law so that he may file his claim late is pure speculation. 

For the above stated reasons, we affirm the Court of Appeals. 

All sitting. All concur. 

COUNSEL FOR APPELLANT, 

DONALD EALY: 

McKinnley Morgan 

COUNSEL FOR APPELLEE, 

RC TRUCKING, INC.: 

Paul E. Jones 

Sara V. A. May 

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