BROOKS PATRICK v. UNION BOILER COMPANY; HON. ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: NOVEMBER 12, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003055-WC
BROOKS PATRICK
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
WC-92-23145
v.
UNION BOILER COMPANY;
HON. ROBERT L. WHITTAKER,
DIRECTOR OF SPECIAL FUND;
HON. DENIS S. KLINE,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, AND MCANULTY, JUDGES.
EMBERTON, JUDGE.
Brooks Patrick petitions this Court to review
an opinion of the Kentucky Workers’ Compensation Board (the
Board) entered on November 14, 1998, which affirmed the
Administrative Law Judge’s (ALJ) opinion and order dismissing
Patrick’s claim for failure to carry his burden of proof as to
any occupational disability as a result of his diagnosis of
asbestosis.
After reviewing the record, we affirm.
In June 1992, Patrick, a retired pipefitter, filed an
application for adjustment of claim with the Department of
Workers’ Claims as a result of his diagnosis of asbestosis.
In
his claim, Patrick asserted that his disease arose out of his
employment with Union Boiler Company and was based upon a last
exposure date of March 18, 1991.
Patrick later amended his
application to reflect a last exposure date of November 3, 1989.
After a hearing, the ALJ dismissed Patrick’s claim for failure to
show an injurious exposure.
Patrick then appealed to the Board.
On April 1, 1994, the Board affirmed the ALJ’s determination that
Patrick’s exposure at Union Boiler Company in 1989 was not
injurious, but reversed and remanded for a finding that Patrick
suffers from asbestosis, a fact that was unrefuted at the hearing
and was a prerequisite to the query of injurious exposure.
Kinker v. American Radiator & Standard Sanitary, Inc., Ky., 268
S.W.2d 948 (1954).
Court.
Patrick appealed the Board’s opinion to this
After this Court affirmed the Board’s opinion, Patrick
appealed to the Kentucky Supreme Court, which again affirmed the
Board’s opinion.
On December 27, 1995, Patrick filed another application
for adjustment of claim for asbestosis arising out of his
employment at Union Boiler Company with a last exposure date of
April 3, 1985.
On remand from the Board’s opinion of April 1,
1994, ALJ Roger Riggs made the requisite finding that Patrick
suffers from asbestosis and set a prehearing conference to
determine a course of action for Patrick’s new claim.
Patrick
then filed a motion to recuse ALJ Riggs because he had previously
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dismissed Patrick’s claim based upon the 1989 exposure date.
ALJ
Riggs granted the motion and the case was assigned to ALJ Denis
Kline.
On November 20, 1997, after a hearing, ALJ Kline found:
(1) that Patrick had contracted asbestosis; (2) that he was
exposed to injurious levels of asbestosis while working for Union
Boiler Company in 1985; and (3) that he failed to establish any
occupational disability due to the asbestosis.
to the Board.
Patrick appealed
On April 3, 1998, the Board reversed and remanded
for a determination of whether Patrick has any occupational
disability notwithstanding the absence of any respiratory
impairment and the fact that Patrick continued to work from 1985
to 1990.
On remand, ALJ Kline again found that Patrick failed to
present evidence of any occupational disability.
On November 13,
1998, the Board affirmed the ALJ’s opinion dismissing Patrick’s
claim.
Patrick then petitioned this Court to review the Board’s
opinion pursuant to Kentucky Rules of Civil Procedure (CR) 76.25.
When the claimant is unsuccessful below, the issue on
appeal is whether the evidence compelled a finding in his favor.
Wolf Creek Collieries V. Crum, Ky. App., 673 S.W.2d 735 (1984).
Compelling evidence is that which is so overwhelming that no
reasonable person could reach the same conclusion as that reached
by the ALJ.
(1985).
REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224
The ALJ is the sole judge of the facts and determines
the quality, character, and substance of the evidence presented,
and the reviewing court or body may not substitute its judgment
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on these factual issues.
Paramount Foods v. Burkhardt, Ky., 695
S.W.2d 418 (1985).
On appeal, Patrick argues that the ALJ erred in
determining that he has no occupational disability as a result of
his asbestosis.
In support of his argument, Patrick relies on
the restrictions that were placed on him as a result of his
disease.
Evidence of the restrictions came from Dr. Prakash
Goyal, who concluded that Patrick could go back to work as long
as the vocation or occupation did not have exposure to chemicals
or dust, and the report of Dr. Ballard Wright, who found that
Patrick was 100% disabled from pipefitting work or similar work
which required exposure to noxious dust or toxic inhalants.
Patrick contends that because a significant portion of
pipefitting jobs available to him involve such exposure, his
future earning capacity was greatly diminished, and thus, he was
entitled to an award of occupational disability pursuant to
Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968).
In dismissing Patrick’s claim, ALJ Kline stated that
"[t]he plaintiff has the burden of proof, and has not presented
any credible evidence that would indicate that there is no work
available to him which would not require exposure to noxious
dusts and fumes."
Patrick has failed to produce any compelling
evidence that refutes the ALJ’s finding of insufficient proof.
Patrick’s argument focuses solely on his lost job opportunities
in the area of pipefitting.
However, Patrick’s restriction from
accepting every available pipefitting job does not dictate an
-4-
award of occupational disability.
In Osborne, supra at 804, the
Supreme Court stated:
"We recognize that the interpretation of the workmen's
compensation law that we are adopting herein does not
give full recompense for occupational disability in
that it does not give consideration to the fact that
the workman's job opportunities may have been reduced
in number as a result of his injury. However, the
inclusion of this factor would require use of a highly
complicated formula by no means accurate in result.
The workmen's compensation law has never approximated
the giving of full compensation for the losses
attributable to disability."
Patrick did not produce any evidence concerning the
unavailability of employment either in his usual occupation as a
pipefitter or in other types of employment.
530 S.W.2d 370 (1975).
Davis v. Baker, Ky.,
Ultimately, Patrick has failed to show a
reduction of his future earning capacity as a result of the
restrictions placed on him.
For the reasons stated above, the opinion of the Board
is hereby affirmed.
McANULTY, JUDGE, CONCURS.
COMBS, JUDGE, CONCURS IN RESULT BY SEPARATE OPINION.
COMBS, JUDGE, CONCURRING IN RESULT: While we are
compelled to follow the rule of Osborne, supra, concerning lost
job opportunities, I believe that the practical impact on an
injured claimant of denial of access to the work to which he is
occupationally suited can be devastating.
This case highlights
the harsh reality that job restrictions placed on a claimant as
necessary to preserving his health may in effect eliminate his
ability to work gainfully or meaningfully in the field of his
training or expertise.
The thirty-one year old precedent of
-5-
Osborne needs to be re-visited by the Supreme Court in light of
the deleterious impact of that holding as a matter of reality.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robin Simpson Smith
Prestonsburg, Kentucky
David O. Welch
Ashland, Kentucky
BRIEF FOR SPECIAL FUND:
Joel D. Zakem
Louisville, Kentucky
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