 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Lankford v. Addington Enterprises11/23/2005
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28 (4) (c), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS AUTHORITY IN ANY OTHER CASE IN ANY COURT OF THIS STATE.
MEMORANDUM OPINION OF THE COURT
AFFIRMING
KRS 342.316(4)(a) provides that "the right to compensation for any occupational disease shall be forever barred, unless a claim is filed. .. within five (5) years from the last injurious exposure to the occupational hazard." In a decision that has been affirmed by the Workers' Compensation Board and the Court of Appeals, an Administrative Law Judge (ALJ) dismissed the claimant's application for benefits on the ground that he did not file it within five years after he last worked for the defendant-employer. We affirm.
It is undisputed that the claimant was born in 1940 and has an eleventh-grade education with vocational training in carpentry. He testified that he worked about 25 years in the coal mining industry, during which time he was exposed to coal dust. He began working for the defendant-employer on October 16, 1996.
On December 18, 2001, the claimant filed an application for occupational disease benefits, alleging that he suffered from coal workers' pneumoconiosis and was last exposed to occupational coal dust on December 20, 1996. The employer filed a notice that it was denying the claim and a special answer in which it listed the statute of limitations as an affirmative defense.
When deposed in September, 2003, the claimant testified that he began to work for the defendant-employer late in 1996, loading rock trucks at night. He worked about 60 hours per week. He stated that he left the employment sometime in December, 1996. When cross-examined, he acknowledged that his application listed December 20, 1996, as his last day of work and that Willard Thompson was his boss. Confronted with Thompson's statement that he had terminated the employment on December 2, 1996, the claimant stated:
A: That's right, sir.
Q72:. Okay. So, would December 2nd, '96 have been the last time you worked for Addingtons?
A: Yes, it is.
Q73: Is that the last time you were exposed to coal dust?
A: Yes, sir.
Yet, on re-direct, he testified
Q1: Now, are your answers here today just the best you can remember?
A: The best I can remember, yes.
Q2: You were asked the question about the last day you worked and he referred to somebody saying it was the 2"d of December. Do you know for sure the last day you worked?
A: No. Seems to me like it was up in December.
Q3: Okay. Because you - the records you gave us was the 20th, and that's the reason we put it on there.
A: It was close to - it was fairly close to Christmas because I asked the boss could I work till Christmas.
Q4: Alright. So - but you don't know for sure the exact date.
A: No.
On February 6, 2004, the claimant submitted wage records from DNL Services, Inc., reflecting his earnings from Addington. They showed that Addington paid him $4,010.00 in 1996 and $588.57 in 1997. At a subsequent deposition, the claimant was questioned about his prior testimony that his last day of work was December 2, 1996, and testified as follows:
Q5: And in that testimony the Counsel for Addington Mining asked whether you had, the last day you'd worked was December the 2nd. Is that correct?
A: Yes.
Q6: And you agreed initially in the deposition. Is that
Page 1 2 3 Kentucky Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|