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Bond v. Corbin9/5/2003
AFFIRMING
Glen Bond has petitioned for review of an opinion of the Workers' Compensation Board entered on April 24, 2002, which affirmed an opinion and order entered by the Administrative Law Judge dismissing his claim against Corbin, Ltd. and the Workers' Compensation Fund for failure to provide due and timely notice of his claim and failure to file his claim within the applicable statute of limitations and statute of repose. Having concluded that the Board neither overlooked or misconstrued controlling statutes or precedent, nor committed an error in assessing the evidence so flagrant as to cause gross injustice, we affirm.
Bond was born on January 16, 1941, has a tenth grade education, and has no specialized training. He was employed in the clothing manufacturing industry from 1964 through 1995, and he began working for Corbin in 1981. Bond was employed by Corbin for 15 years as a mechanic, where he maintained Corbin's manufacturing machines. He cleaned the machines once per week by blowing out the dust which had collected and by sweeping up the dust. Bond testified that he was regularly exposed to hazardous levels of respirable dust, fabric fibers, and chemicals.
Bond filed an application for occupational disability benefits on July 11, 2000. He alleged that he had contracted occupational pneumoconiosis while in Corbin's employ as a result of his exposure to dust, fibers, and chemicals. At a formal hearing on Bond's claim held on February 26, 2001, Bond testified that he suspected he had pneumoconiosis and/or industrial asthma, but that no physician had ever diagnosed him as suffering from either. Bond acknowledged that he began having respiratory problems in the early 1980's, but he testified that he only began to experience severe problems approximately two to three months prior to July 2000, when he was informed that one of his lungs required removal. It was at this time that Dr. Maurice Bassali diagnosed Bond with pneumoconiosis.
Based on Bond's claim "that he has contracted not only mixed pneumoconiosis from the breathing of dust as well as fibers used in the manufacturing of clothing, but also has developed chronic obstructive pulmonary disease as well as reactive airway disease from such inhalation," the ALJ found that KRS 342.316 applied. The ALJ further found that Bond was aware of his condition as early as October 31, 1995, and that his notice to Corbin of July 3, 2000, was not timely under KRS 342.316(2); that the filing of the application on July 11, 2000, was outside the three-year statute of limitations at KRS 342.316(4)(a); and that Bond's last date of injurious exposure was prior to July 11, 1995, which also caused his claim to be barred under the five-year statute of repose at KRS 342.316(4)(a). The ALJ found in part as follows:
n the medical report . . . of October 31, 1995, Dr. Dickerson indicated that he told the Plaintiff that he had chronic constructive pulmonary disease/reactive airway disease, and felt that dust and lints he encountered at work exacerbated his underlying condition and further opined that the Plaintiff was disabled from physical activity.
Thus, since Bond should have known that he had contracted this occupational disease by at least October 31, 1995, under KRS 342.316(2) his notice was untimely, and under KRS 342.316(4)(a), he should have filed his claim for benefits no later than October 31, 1998. Since Bond's application for benefits was filed on July 11, 2000, it was time-barred.
In determining that Bond's claim was also barred by the statute of repose contained in KRS 342.316(4)(a), the ALJ found:
The Plaintiff testified on cross-examination at the Form
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