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Day v. Fairbanks Coal Co.4/21/2005
TO BE PUBLISHED
REVERSING
An Administrative Law Judge (ALJ) rejected the claimant's challenge to the consensus reached by three B-readers as well as his argument that the underlying reports were inadmissible under KRS 342.316(3)(b)1. because they identified the x-ray that was interpreted by a letter of the alphabet rather than the date on which it was taken. Relying on the consensus classification, the ALJ dismissed the application for pneumoconiosis benefits. Although the Workers' Compensation Board (Board) affirmed, the Court of Appeals reversed and remanded the claim. Its rationale was that the B-readers' reports were based on undated x-rays and that KRS 342.316(3)(b)1. unambiguously required an x-ray to contain the date on which it was taken in order to be admissible as evidence.
It is undisputed that the claimant was exposed to coal dust while working for the defendant-employer and that he quit working on July 11, 1997, due to a back injury . On November 15, 2002, he filed an application for benefits under the July 15, 2002, version of KRS 342.732, alleging that he suffered from coal workers' pneumoconiosis.
Accompanying the application was a report by Dr. Alexander. The report indicated that Dr. Alexander evaluated a September 12, 2002, x-ray and found abnormalities that were consistent with category 1l1 pneumoconiosis.
On February 6, 2003, the employer submitted a report by Dr. Dahhan, which indicated that he examined the claimant on January 27, 2003. The report also indicated that Dr. Dahhan evaluated a January 27, 2003, x-ray and found no abnormalities that were consistent with pneumoconiosis.
As provided in KRS 342.316(3)(b)4.e., on February 24, 2003, the Commissioner of the Department of Workers' Claims notified the parties that the reports were not in consensus. The letter stated that the x-rays the parties had filed would be forwarded to three B-readers for interpretation and that the parties would be notified at the conclusion of the process. The x-rays the parties submitted were then forwarded to Drs. Rosenberg, DePonte, and Lockey to select and interpret the highest quality film.
Dr. Rosenberg's March 5, 2003, report and accompanying letter indicated that he interpreted x-ray "G," which he graded as quality 2 because it was light. He found no abnormalities that were consistent with pneumoconiosis but did find evidence of old granulomatous disease that was consistent with a past infection such as tuberculosis.
Dr. DePonte's March 19, 2003, report indicated that she interpreted x-ray "G," which she graded as quality 1. She found abnormalities that were consistent with category 0/1 pneumoconiosis.
Dr. Lockey's March 21, 2003, report indicated that he interpreted x-ray "G," which he graded as quality 1. He found no abnormalities that were consistent with pneumoconiosis and classified the profusion as category 0/0. He stated that the abnormalities he found were consistent with old TB or histoplasmosis.
Among other things, KRS 342.316(3)(b)1. requires that x-rays be indelibly labeled with the date on which they were taken and that reports of x-ray interpretations contain the date of the x-ray in order to be admissible as evidence. The x-rays the parties submitted are not part of the record on appeal, but there is no assertion that they failed to comply with the statute when the parties submitted them. Nonetheless, all of the 13-readers' reports identified the x-ray that was chosen for interpretation with the letter "G," and none contained the date of the x-ray that was interpreted. An internal form that was used by the Department to record party and panel x-ray readings
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