ISLAND CREEK COAL COMPANY V. ROY C. BOLDS; HON. THOMAS A. NANNEY; ADMINISTRATIVE LAW JUDGE; SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000298-WC
ISLAND CREEK COAL COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-03238
v.
ROY C. BOLDS; HON. THOMAS A. NANNEY;
ADMINISTRATIVE LAW JUDGE; SPECIAL FUND;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE: Island Creek Coal Company (Island Creek)
petitions for review of a Workers’ Compensation Board (Board)
opinion rendered on January 16, 1998, that reversed the
Administrative Law Judge’s (ALJ) opinion which following a motion
to reopen had reduced Roy C. Bolds’ (Bolds) previous award of
total disability to an award of fifty percent permanent partial
disability.
We affirm.
Bolds, was born on October 16, 1948, and worked for
Island Creek for 21 years before becoming totally disabled.
May 18, 1987, Bolds suffered an injury when he lifted and
attempted to position a conveyor belt motor at Island Creek.
On
This injury resulted in a herniated disc and Bolds underwent
surgery in June 1987.
The permanent restrictions placed on him
by this treating physician included not lifting more than 20
pounds occasionally and more than ten pounds frequently.
By
opinion and award dated February 8, 1989, the ALJ found Bolds to
be 30% permanently partially disabled.
1989.
Bolds returned to work in
On January 13, 1992, Bolds suffered yet another disc
herniation when he was injured while lifting sixty-pound bags of
rock dust.
Bolds underwent a second back surgery.
His treating
physician restricted him to lifting no more than ten pounds
occasionally and to participating in only sedentary activities.
The ALJ, by opinion dated February 9, 1994, determined that Bolds
was totally occupationally disabled and on his own motion
reopened the 1987 award and found that all the disability was
related to the 1987 injury.
All parties appealed the ALJ’s award
to the Board.
In September 1994, while the appeal was pending before
the Board, Bolds began working for Minact, Inc. (Minact) at the
Earle C. Clements Job Corps in Morganfield.
Bolds’ job involved
minor preventative automobile maintenance work such as oil
changes, tire rotations and vehicle lubrications.
He testified
that his temporary total disability benefits ended in 1993, and
that he was desperate to provide some sort of income for his
family during the appeal of the disability award.
Bolds’ job
application failed to disclose his injury and the application
falsely stated that he had experience as an automobile mechanic.
Bolds was hired at Minact by a good friend; and another friend,
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who also worked at Minact, frequently assisted Bolds when he was
unable to perform particular job tasks.
While working at Minact,
Bolds was allowed to take rests and breaks when needed.
Bolds
worked approximately 40 hours a week at $8.16 per hour.
He
testified that he was in pain at the end of every day.
On April
7, 1995, the Board affirmed Bolds’ total disability award.
Bolds
received his past-due disability benefits in December 1995, and
quit working two months later in February 1996.
On March 7, 1995, Island Creek filed a motion to reopen
Bolds’ claim.
Island Creek argued that Bolds’ return to work
demonstrated that he was no longer totally disabled.
Bolds’
response to the motion to reopen argued that while he “has
undeniably obtained employment, at a job position he has never
worked at before, at severely decreased wages, the employer has
failed to show that he has decreased occupational disability
since he is still ‘disabled from his customary employment’ as a
coal miner and has been forced to seek alternate employment due
to his severe financial status.”
On September 12, 1995 the ALJ
entered an order determining that a prima facie case for
reopening had been made and the matter was assigned to an ALJ.
By opinion dated February 26, 1997, the ALJ found that
Bolds had experienced a decrease in his occupational disability.
The ALJ made the following findings of fact and conclusions of
law:
1. The plaintiff vehemently argues that
he remains totally disabled and that his
situation is in some ways equivalent to that
in Gunderson v. City of Ashland, Ky.[,] 701
S[.]W[.]2d 135 (1985). He indicates that,
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only due to the sympathy of his employer and
friends, was he able to work.
Despite the fact that plaintiff has
given testimony that he received help from
his friends, the record is uncontradicted
that the plaintiff worked from September 1994
through February 16, 1996, well over a year,
performing work as a mechanic on a daily
basis, working eight hours a day and earning
over $8.00 an hour. Plaintiff ceased this
work after the Defendant-Employer filed its
Motion to Reopen. I am fully aware that the
plaintiff states that he quit working because
of increased pain, but his timing is,
nevertheless, suspect. In light of
plaintiff’s election to accept the benefits
to which he clearly knew he was not entitled,
and further, based upon his falsification of
his employment application, I find that there
is a significant issue raised as to the
plaintiff’s credibility in this proceeding.
Under the circumstances, I find that
plaintiff was not totally occupationally
disabled from the time he began working for
Minact, Inc. At the very least, he was
capable of sedentary work, and perhaps more.
2. Therefore, after reviewing the lay
and medical testimony and taking into
consideration Plaintiff’s age, education and
work history, I find that the Plaintiff is
suffering from an occupation disability of
50% under the principles of Osborne vs.
Johnson, Ky[.], 432 S[.]W[.]2d 800 (1968),
from September 14, 1994 and continuing
thereafter to and including the date of this
Award. I no longer believe that the
plaintiff is totally disabled as the result
of his original work-related injury.
Therefore, plaintiff’s benefits shall be
reduced, effective August 1, 1995. The
plaintiff shall be entitled to benefits at
the rate of 50% disability for the weeks
since the date of reopening and continually
thereafter until the plaintiff’s original
425-week period has expired. . . .
On March 13, 1997, Bolds filed a petition for
reconsideration which was overruled.
Bolds filed an appeal with
the Board, and Island Creek cross-appealed.
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Bolds claimed that
the ALJ’s findings as to Bolds’ credibility and work at Minact
were not supported by the evidence.
Bolds pointed out that it
was over eleven months from the time Island Creek filed its
motion to reopen to the time he quit working at Minact due to a
worsening in his back condition.
Bolds also argued that the ALJ
had failed to set forth any functional impairment rating or
changes in his functional work ability upon which to base a
change in his occupational disability.
Bolds further argued that
there was no medical evidence of any change in his physical
condition and that the doctors unequivocally stated that his
physical condition had not changed appreciably since 1993.1
In response to Bolds’ arguments, Island Creek noted
that the ALJ is the sole arbiter of witness credibility and of
the weight to be given to evidence and that there was substantial
evidence to support the ALJ’s finding.
Island Creek argued to
the Board that Bolds had falsified his employment application at
Minact and had received benefits to which he clearly knew he was
not entitled.
By opinion rendered January 16, 1998, the Board
reversed the ALJ’s decision.
The Board stated in pertinent part
as follows:
In this case[,] it is clear the ALJ
determined that Bolds was no longer totally
disabled because he obtained employment. In
essence, although not perfectly clear from
the record, Bolds argues he was forced to
seek employment because of Island Creek’s
attempt to “starve him out.” Bolds last
1
Island Creek’s cross-appeal concerned the duration of the
permanent partial disability award which is not at issue in this
appeal.
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received temporary total disability benefits
from Island Creek in May 1993 and in his
brief before this Board contends he was not
paid benefits until Island Creek’s appeal of
the 1992 award was final in October 1995.
The crux of Bolds’ argument on appeal is
that if not for the goodwill of his friend in
finding him a job, he would have remained
unemployable and, in fact, is now so
unemployed. He cites Gunderson v. City of
Ashland, Ky., 701 S.W.2d 135 (1985), for the
proposition that employment in a sheltered
environment is not proof of being able to
compete in the open labor market.
If this had been a case where an
employee had previously been awarded
permanent partial disability benefits and
been laid off from his job without showing a
worsening of medical condition, it is
doubtful that the mere layoff would
constitute a change in occupational
disability. In Gossett, supra, the claimant
sought employment from numerous employers and
was turned down due to his physical
condition. In that rare case, the Court
upheld a finding of a change in occupational
disability.
Here, Bolds testified he sought
employment because he needed the money and
after a period of employment was unable to
continue in a job where he could work within
his doctor’s restrictions only due to the
help of his friends. The evidence in the
records concerning both Bolds’ physical
condition, as well as the job description at
Minact, is uncontroverted. The ALJ doubted
Bolds’ word concerning his job requirement
apparently because he provided misleading
information on his job application and quit
working after the motion to reopen was filed.
While it is true, the ALJ has the sole
authority to judge the weight and credibility
of the evidence, in this case both the
medical and lay testimony was uncontroverted.
Bolds’ physical condition had not changed
since the 1992 award, and he made an attempt
at employment which was unsuccessful.
Simply, there is not sufficient evidence in
the record to support the ALJ’s finding of a
decrease in occupational disability. Bolds’
physical condition has not improved, and the
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facts concerning his ability to compete in
the open job market do not support a change
in occupational disability from an economic
standpoint as found in Gossett, supra. The
record indicates, as argued by Bolds, a
condition unchanged since the total award by
ALJ Lovan.
This appeal followed.
Island Creek claims the Board erred in reversing the
ALJ because it contends the ALJ’s findings were based on
substantial evidence.
Island Creek accuses the Board of
substituting its judgment for that of the ALJ.
Island Creek
points out that although reasonable minds could perhaps differ as
to what conclusion to draw from the evidence, the ALJ has the
sole authority to determine the substance of the evidence.
The Board’s role is limited to reviewing the ALJ’s
decision to determine whether there was sufficient evidence to
support the findings made by the ALJ, or whether the evidence
before the ALJ was uncontradicted and compelled a different
result.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687 (1992).
Our review of the Board’s opinion is limited to
correcting the Board only where the Court perceives the Board has
overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice.
Id. at 688.
We hold that the Board correctly concluded that the
evidence was uncontroverted that Bolds’ physical condition had
not changed since the 1992 award and that his attempt to work
employment at Minact was unsuccessful.
The ALJ apparently based
his finding of a decrease in occupational disability upon the
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fact that Bolds had been employed for some time.
Bolds’ false
statements in his job application for Minact concerning his
qualifications and his disability led the ALJ to doubt his
credibility.
The ALJ also noted that Bolds’ timing in
voluntarily quitting his job at Minact was suspect.
However,
Bolds continued to work at Minact for eleven months after the
first motion to reopen was filed in March 1995.
This fact is
inconsistent with the ALJ’s finding that he quit his job because
of the filing of the motion to reopen.
Although the ALJ has the
authority to determine the quality, character and substance of
the evidence, there must be evidence of substantial quality that
supports the ALJ’s findings for the ALJ’s findings to be
conclusive.
The Board determined that because Bolds’ effort at
working was unsuccessful and because Bolds’ physical condition
remained unchanged since the 1992 total disability award that
there simply was not sufficient evidence in the record to support
a finding of a decrease in occupational disability.
“Although the concept of finality applies to workers’
compensation awards, KRS 342.125 provides some relief from the
principles of res judicata and permits a reopening under certain
specified conditions.”
S.W.2d 440 (1998).
AAA Mine Services v. Wooten, Ky., 959
“The fact that a worker may be willing and
able to work at some occupation does not necessarily preclude his
being totally disabled for purposes of workers’ compensation.”
Wells v. Jones, Ky.App., 662 S.W.2d 849, 850 (1983).
As stated
in Osborne v. Johnson, Ky. 432 S.W.2d 800, 803 (1968),
If the board finds that the workman is
so physically impaired that he is not capable
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of performing any kind of work of regular
employment, or if the board finds that
regular employment in the kind of work the
man can perform is not available on the local
labor market, the man will be considered to
be totally disabled. Otherwise he will be
considered to be only partially disabled.
As the Supreme Court pointed out in Gunderson v. City of Ashland,
Ky., 701 S.W.2d 135, 136 (1985), quoting, Larson’s Workers’
Compensation, vol. II, § 57.51, when assessing the degree of
disability one must consider “the probable dependability with
which the claimant can sell his services in a competitive labor
market, undistorted by such factors as business boom, sympathy of
a particular employer or friends, temporary good luck, or the
superhuman efforts of the claimant to rise above his crippling
handicaps.” (emphasis original).
On the other hand, the
Gunderson Court stated that “[t]he compensation statute is not
designed to pay full benefits to someone who is employed full
time.”
Id. at 137.
The ALJ relied on Bolds’ full-time employment in
finding that his disability had decreased to only 50%.
However,
as the Board concluded, the evidence showed that Bolds’ effort at
working was unsuccessful.
He was only able to work at Minact due
to the assistance of his good friends.
The medical evidence was
uncontroverted that Bolds’ physical condition at the time of the
reopening was identical to his condition in 1992 when he received
a total disability award.
We cannot conclude that the Board
committed an error in assessing the evidence so flagrant as to
cause gross injustice.
Therefore, we affirm the opinion of the
Board.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, BOLDS:
Hon. Eileen M. O’Brien
Lexington, KY
Hon. Greg L. Gager
Henderson, KY
BRIEF FOR APPELLEE,
SPECIAL FUND:
Hon. David W. Barr
Louisville, KY
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