NEW HARLAN BLOCK COAL COMPANY, INC. v. WALTER A. BALTHIS; SPECIAL FUND; HON. LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: September 4, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-002953-WC
NEW HARLAN BLOCK COAL COMPANY,
INC.
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-93-21766
WALTER A. BALTHIS;
SPECIAL FUND;
HON. LLOYD R. EDENS,
ADMINISTRATIVE
LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, GUIDUGLI and HUDDLESTON, Judges.
GUIDUGLI, JUDGE:
New Harlan Block Coal Company, Inc. (New
Harlan) appeals from an opinion of the Workers’ Compensation
Board (Board) which affirmed the opinion, order and award of the
Administrative Law Judge (ALJ).
The ALJ found upon reopening
that claimant, Walter Balthis (Balthis), is totally disabled due
to coal workers pneumoconiosis.
New Harlan argues before this
Court, as it did before the Board, that the ALJ erred in
assessing the medical evidence in determining that Balthis had
sustained his burden of proof that he suffered from Category 2
coal workers pneumoconiosis.
We affirm.
The Board’s opinion rendered October 24, 1997,
succinctly and concisely sets forth the facts, issues presented
and applicable standard of review and thus, we adopt it, in part,
as our own:
Balthis filed a claim for retraining
incentive benefits (“RIB”) on June 8, 1993.
He settled his claim in an agreement which
was approved by an Administrative Law Judge
on October 6, 1993. After 22 years in the
coal mining industry, he last worked on
August 27, 1993. Balthis filed his claim for
increased benefits on January 4,1995.
Apparently, he applied for employment with
Jericol Mining Company, Inc. in February 1994
and a pre-employment physical revealed Stage
II coal workers’ pneumoconiosis.
On reopening, Balthis submitted evidence
from Dr. J. D. Miller, an internal medicine
specialist, who examined him for preemployment physical at the request of Jericol
Mining on February 17, 1994. An x-ray taken
that date revealed Category 2/2 coal workers’
pneumoconiosis. On May 2, 1994, Dr. Miller
performed an examination at the request of
Balthis’ counsel. In addition to the
February 17, 1994 x-ray, he performed
pulmonary function studies on May 2, 1994
which revealed an FVC of 66% of predicted and
an FEV1 of 79% of predicted. Furthermore,
Dr. Miller interpreted an August 2, 1994 xray taken at the request of Dr. William
Anderson as showing Category 2/2 coal
workers’ pneumoconiosis.
Balthis also submitted the Form 108 of Dr.
Anderson which revealed x-ray results of
Category 2/2 pneumoconiosis. Dr. Anderson’s
-2-
ventilatory studies were invalid due to
excessive variation.
New Harlan relied on medical evidence from
Dr. Robert W. Powell and Dr. Emery Lane. Dr.
Powell interpreted a February 23, 1993 x-ray
showing Category 1/1 pneumoconiosis. He
interpreted a February 17, 1994 x-ray as
showing no evidence of the disease. He
offered the opinion that simple coal workers’
pneumoconiosis does not progress without
additional exposure, nor does it disappear.
He explained that the difference between the
February 23, 1993 x-ray which shoed Category
1 coal workers’ pneumoconiosis and the
February 17, 1994 which showed no evidence of
the disease was due perhaps to a condition
which mimics pneumoconiosis.
Dr. Emery Lane examined Balthis on August
3, 1993 at which time he interpreted chest xrays as showing Category 1/1 pneumoconiosis
and pulmonary function studies with an FVC of
83.6% of predicted and an FEV1 of 78.1% of
predicted. Dr. Lane also interpreted a
February 22, 1993 chest x-ray as showing
Category 1/1 pneumoconiosis and on April 12,
1993 chest x-ray as unreadable. He read an
April 3, 1995 chest x-ray as showing Category
1/0 coal workers’ pneumoconiosis had not
progressed.
The Special Fund submitted evidence from
Dr. Betty Joyce who examined Balthis on June
23, 1995. A chest x-ray taken at that time
showed Category 1/0 coal workers’
pneumoconiosis. Pulmonary function studies
yielded a pre-bronchodilator result of an FVC
of 79.4% of predicted and an FEV1 of 74.1% of
predicted. Post-bronchodilator results were
an FVC of 80% of predicted and an FEV1 of 77%
of predicted.
The ALJ reviewed the lay and medical
testimony in the record noting that Balthis
had testified he spent a substantial portion
of his work history as a helper on a Wilcox
miner. He further noted that Balthis stated
the last two years of his work for New Harlan
had been next to the machine shoveling coal.
The ALJ chose to rely on the testimony of Dr.
-3-
Miller that Balthis had Category 2 coal
workers’ pneumoconiosis. Based on the
findings in the original claim, the ALJ
concluded that Balthis’ pneumoconiosis had
progressed from Category 1 to Category 2. He
further found a progression of Balthis’
respiratory impairment based on an FEV1
reading as less than 80% of predicted normal.
Therefore, pursuant to KRS 342.125(2) and KRS
342.732(1)(d), he found Balthis to be totally
occupationally disabled.
On appeal, New Harlan argues in essence
that the ALJ should have relied on the
medical testimony of its doctors and in its
brief before this Board, does not mention the
medical evidence as found by Dr. Miller.1
As is well-known, the ALJ, as fact-finder,
has the sole authority to determine the
weight, credibility, substance, and inference
to be drawn from the evidence. Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418
(1985). When the medical evidence is
conflicting, it is the sole authority of the
ALJ to choose whom and what to believe.
Caudill v. Maloney’s discount Stores, Ky.,
560 S.W.2d 15 (1977). Clearly, it is within
the province of the ALJ to believe the
testimony of Dr. Miller which showed Category
2 coal workers’ pneumoconiosis. Furthermore,
there was evidence based on the pulmonary
function studies to support a finding of
increased pulmonary deficiency.
As recognized by the ALJ and recently
affirmed by the Supreme Court in Nantz v. Del
Coal, (96-CA-619-WC), rendered June 30, 1997
and ordered not to be published, under KRS
342.125(2), the reopening statute which
applied to this claim, a reopening of a RIB
award is permitted only upon a finding of
both a progression of the disease by x-ray
evidence and the development of respiratory
impairment due to pneumoconiosis.
1
In its brief to this Court, New Harlan does mention Dr.
Miller’s medical report in a three-sentence paragraph.
-4-
In conclusion, the ALJ’s award of benefits
pursuant to KRS 342.732(1)(d) is supported by
evidence of both a progression of coal
workers’ pneumoconiosis by x-ray and a
worsening of the breathing impairment.
Inasmuch as the two-prong test of KRS
342.125(2) has been met and is supported by
evidence in the record, the ALJ’s decision
may not be disturbed on appeal.
Accordingly, the Opinion, Order and Award
rendered by Hon. Lloyd R. Edens,
Administrative Law Judge, is hereby AFFIRMED
and the appeal by New Harlan Block Coal
Company, Inc. is hereby DISMISSED.
As to the remaining two (2) issues raised by appellant
in its brief, they were not raised before the ALJ or the Board
and thus cannot be raised for the first time before this Court.
Additionally, it should be noted that the third issued raised by
New Harlan relies upon what it calls the “new law” which is not
applicable to the case before us.
For the foregoing reasons, the decision of the Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, BALTHIS:
Paul E. Jones
Pikeville, KY
S. Parker Boggs
Harlan, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Benjamin C. Johnson
Louisville, KY
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