In Coal-Mac Inc. v. Wheeler Blankenship, Ky.App., 863 S.W.2d 333 (1993) the claimant had terminated his employment in 1986 because he was having breathing problems. He was subsequently told by a physician treating him for a stroke that he may have black lung.
The ALJ dismissed the claim after concluding that the termination of claimant's employment due to breathing difficulties alone was not sufficient to require the giving of notice but that the breathing difficulties coupled with his discussion with a physician that he might have pneumoconiosis was sufficient to apprise him of the disease requiring him to give notice.
The Court of Appeals, in affirming the Board's reversal of that dismissal, noted that KRS 342.316(2)(a) required that an employer be given notice of an occupational disease claim as soon as practicable after the employee first experiences a distinct manifestation of the disease in the form of symptoms reasonably sufficient to apprise him that he has contracted the disease or the diagnosis of the disease is first communicated to him, whichever first occurs.
The Court noted that it did not believe the evidence supported a finding that the claimant had experienced such a distinct manifestation of the disease, referring to Blue Diamond Coal Co. v. Stepp, Ky., 445 S.W.2d 866 (1969), where the Supreme Court stated that:
The worker should be deemed to be disabled from silicosis, for the purpose of notice requirements, when circumstances exist from which the workman realizes or reasonably should realize that his capacity to perform his work is impaired by reason of silicosis. Id. at 868.