CONARD ISAAC v. MISTY K MINING COMPANY, INC.; SPECIAL FUND; HON. J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION
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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NOT TO BE PUBLISHED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-003200-WC
CONARD ISAAC
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-96-04099
MISTY K MINING COMPANY, INC.;
SPECIAL FUND;
HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, GUIDUGLI and HUDDLESTON, Judges.
GUIDUGLI, JUDGE:
Conard Isaac (Isaac) appeals from an opinion
of the Workers’ Compensation Board (Board) affirming an opinion
and order of the Administrative Law Judge (ALJ) dismissing his
claim of occupational disability due to an occupational lung
disease.
We affirm.
On August 8, 1995, Isaac filed a claim for retraining
incentive benefits (RIB).
On September 6, 1995, Isaac filed
another claim alleging occupational hearing loss.
These two
claims were consolidated by order of the ALJ on March 11, 1996.
At that time, claimant also moved to amend the RIB claim to
allege a compensable occupational lung disease resulting in
occupational disability.
other pending claims.
This claim was consolidated with all
At a prehearing conference held on
September 10, 1996, the hearing loss claim was settled.
The
remaining claims were assigned to an ALJ for hearing.
In an opinion and award entered on September 16, 1997,
the ALJ found that Isaac had been working in the coal mines since
1955.
He had worked in underground mines and was exposed to coal
dust on a daily basis.
Isaac’s last day of work and his last day
of exposure to coal dust was August 13, 1994.
smoker.
Isaac was not a
The ALJ also reviewed the multitude of medical reports
of Drs. Lane, Skolnick, Powell, Jarboe and Vuskovich.
summarized the medical evidence as follows:
The ALJ
Judah L. Skolnick, M.D. read a July 14,
1995 X-ray taken at Pikeville Radiology as
being grade 3 in quality but as showing p/p
opacities in both mid lung zones, category
1/0. Emery Lane, M.D. read that same X-ray
in exactly the same manner. He also read
July 10, 1995 X-ray taken at the Sandy Valley
Radiology as being grade 1 in quality and as
showing p/p opacities in the right upper and
both mid lung zones, category 1/0.
Thomas M. Jarboe, M.D. read a November 9,
1995 X-ray taken at Pikeville Radiology. It
was read as grade 1 in quality and as being
completely negative. Robert W. Powell, M.D.
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examined and evaluated Plaintiff on January
23, 1996. An X-ray Dr. Powell took that day
was read as grade 1 in quality and as 0/0.
He performed pulmonary function studies on
Plaintiff which resulted in an FVC of 70% of
predicted and an FEV-1 of 81% of predicted.
However, he noted that maximal voluntary
effort was not achieved. Dr. Powell’s
impression was that there was no radiographic
evidence of coal workers pneumoconiosis,
there was no respiratory impairment but there
was probable coronary artery disease.
Special Fund had Plaintiff evaluated by
Matt Vuskovich, M.D. on May 24, 1996. An Xray Dr. Vuskovich took that day was read as
grade 1 in quality and as showing q/q
opacities in all six lung zones, category
1/1. Pulmonary function studies performed by
Dr. Vuskovich resulted in an FVC of 83% of
predicted and an FEV-1 of 73.9% of predicted.
Defendant Employer had Plaintiff examined
by Dr. Jarboe and took Dr. Jarboe’s
deposition on August 28, 1996. Dr. Jarboe
examined Plaintiff on July 26, 1996, took an
X-ray that day and also performed a pulmonary
function study. The X-ray was read as grade
1 in quality and as 0/0. The pulmonary
function study resulted in an FVC of 95% of
predicted and an FEV-1 of 85% of predicted.
Although Dr. Jarboe admitted, upon crossexamination, that his several trials at the
pulmonary function study produced results
that were not within 5% of each other, the
maximal effort resulted in the readings
reported which show, at the very least,
adequate pulmonary function. He testified
that Plaintiff probably could have done
better on the pulmonary function but there is
no way that his pulmonary function could have
been less than what was represented in the
best result.
Based upon the evidence the ALJ awarded Isaac RIB
benefits but denied his claim for pulmonary impairment.
Isaac
appealed to the Board arguing that claimant’s pneumoconiosis when
combined with his age, education, background and work experience
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results in a 100% occupational disability.
The Board rejected
Isaac’s arguments and dismissed his occupational disability claim
based upon the medical evidence and KRS 342.732.
Specifically,
the Board stated:
The medical evidence from Drs. Lane and
Skolnick convinced the ALJ that Isaac had
sustained his burden of proof to establish
the existence of the disease of coal workers’
pneumoconiosis. The existence of the disease
is not at issue. However, a variety of
pulmonary function studies were performed and
submitted into evidence. Dr. Powell
performed pulmonary function studies and
found the FVC to be 70% of predicted and the
FEV-1 to be 81% of predicted. He did not
believe that maximum effort had been
achieved. Dr. Vuskovich performed pulmonary
function studies and found the FVC to 83% of
predicted and the FEV-1 to be 73.9% of
predicted. Dr. Thomas Jarboe performed
pulmonary function studies and found the FVC
to be 95% of predicted and the FEV-1 to be
85% of predicted. He acknowledge in his
disposition that the reports were not within
5% of each other, but he further testified
that these tests revealed less than maximum
voluntary effort on the part of Isaac. Dr.
Jarboe further testified that an individual
could not “fake” high and, therefore, his
findings would establish at the very least no
pulmonary impairment.
In reaching his conclusion, the ALJ
ultimately relied upon Dr. Powell’s FEV-1,
which was 81% of predicted, and Dr.
Vuskovich’s FVC finding of 83% of predicted.
In accordance with KRS 342.732(1)(a), the ALJ
had no discretion to pick and choose from the
pulmonary function studies and although there
was evidence in the record of an FVC below
80% of predicted and an FEV-1 below 80% of
predicted, the statutory provision obligated
the ALJ to select the highest FVC and FEV-1
of record. While it is within the ALJ’s
discretion to rely on either the FVC or FEV1, he has no discretion when it comes to
choosing the highest value. See, for
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example, Newburg vs. Price, Ky., 868 SW2d 92
(1993); Varney vs. Newburg, Ky., 860 SW2d 752
(1993); and Wright vs. Hopwood Mining, Ky.,
832 SW2d 884 (1992). Therefore, in our
opinion, once the ALJ determined that Isaac
had satisfied his burden of proof to
establish the existence of the disease of
coal workers’ pneumoconiosis, his discretion
was then limited and he was obligated to rely
upon the highest FVC value and the highest
FEV-1 value, which in this case were both
above 80% of predicted, limiting benefits to
KRS 342.732(1)(a).
The ALJ is obligated by law to rely upon the highest
FVC value and the highest FEV-1 value.
The record abounds with
medical evidence to support the finding of the ALJ.
As was
stated in Special Fund v. Francis, Ky., 708 S.W.2d 641, 641
(1986), “in order to reverse the findings of the Workers’
Compensation Board unfavorable to the claimant and upon which he
had the burden of proof, the test is whether the evidence
compelled a finding in his favor.”
Isaac has not shown that the
ALJ made an error in assessing the evidence, therefore, the
Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, MISTY K
MINING COMPANY, INC.:
Robert G. Miller, Jr.
Paintsville, KY
John V. Potter
Paintsville, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
David W. Barr
Louisville, KY
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