Gardner v. Vision Mining, Inc., No. 2009-CA-000874-WC, (Ky. Ct. App. 2010).  KRS 342.316 as applied to coal workers is unconstitutional. 

In Gardner, the Kentucky Court of Appeals addressed a claimant’s argument that KRS 342.316, which governs the evidentiary standard and procedural requirements for coal workers’ pneumoconiosis (CWP) claims, was unconstitutional.  In particular, KRS 342.316 provides for a consensus panel of “B” Readers to interpret x-rays submitted by both parties.  If consensus is reached, the x-ray classification is presumed correct unless overcome by clear and convincing evidence.  If consensus is not reached, the ALJ decides the claim on the evidence submitted. 

The court found that because the statute requires the CWP claimant, and no other pneumoconiosis claimant, to prove his case by clear and convincing evidence and applies a different statutory scheme for the adjudication of such claims through use of a consensus panel violates a CWP claimant’s right to equal protection under the law.

COMMENT:  The constitutionality of KRS 342.316 has been challenged in the past and CWP claims in general has been the subject of extensive legislative action in Kentucky.

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