G & J PEPSI-COLA BOTTLERS, INC. v. THOMAS S. MILLER, ROBERT WHITTAKER, DIRECTOR, SPECIAL FUND, HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE, and WORKERS' COMPENSATION BOARD
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RENDERED: December 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001151-WC
G & J PEPSI-COLA BOTTLERS, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-02044 & WC-95-29656
v.
THOMAS S. MILLER,
ROBERT WHITTAKER, DIRECTOR, SPECIAL FUND,
HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE,
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND MILLER, JUDGES.
MILLER, JUDGE:
G & J Pepsi Cola Bottlers, Inc. (Pepsi) asks us
to review an opinion of the Workers’ Compensation Board rendered
April 16, 1999.
We affirm.
On June 10, 1995, Thomas Miller suffered a low back
injury while he was in the employ of Pepsi.
He continued working
until June 23, 1995, when he went to the emergency room because
of difficulty bending.
Miller was initially treated by Dr. James
Russel, an orthopedic surgeon, who eventually referred him to Dr.
John Vaughn, another orthopedic surgeon, and Dr. Edward Harder,
an infectious disease specialist.
Miller apparently developed an
aspergillus infection in his vertebrae which required surgical
removal of the infected bone and a spinal fusion.
In October 1996, Miller filed an injury claim seeking
Workers’ Compensation benefits.
Chapter 342.
Kentucky Revised Statutes (KRS)
On September 15, 1997, he filed an occupational
disability claim in which he alleged his aspergillus infection
was an occupational disease.
Pursuant to KRS 342.315, Miller was
referred to a university evaluator, Dr. Betty Joyce, a pulmonary
specialist.
She believed the results of Miller’s exam were
consistent with reactive airway syndrome or asthma.
Thereafter,
Miller amended his occupational disease claim to include a claim
for a pulmonary impairment.
The administrative law judge (ALJ) determined that
Miller suffered from a work-related pulmonary condition.
He
further determined that Miller suffered from a pre-existing
aspergillus infection which was aroused into disabling reality by
the June 10, 1995 work-related back injury.
The ALJ concluded
that Miller was totally occupationally disabled and apportioned
all liability to Pepsi.
Pepsi appealed to the board.
The board
“affirmed in part and reversed in part and . . . remanded” for
further findings on whether Miller gave due and timely notice of
his pulmonary condition.
This appeal followed.
We first address Pepsi’s arguments concerning the ALJ’s
finding that Miller’s pulmonary impairment constituted a
compensable occupational disease.
Pepsi contends that said
condition was not work-related and, thus, not compensable.
the alternative, it argues that the pulmonary condition was
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In
caused by a sudden and intense exposure to chemicals in January
1995 and, therefore, constitutes an “injury.”
Hence, they
maintain the claim is now time-barred.
The ALJ, as fact finder, has the sole authority to
determine the weight, credibility, substance, and inferences to
be drawn from the evidence.
Paramount Foods, Inc. v. Burkhardt,
Ky., 695 S.W.2d 418 (1985).
Where the party bearing the burden
of proof is successful before the ALJ, the question before the
board is whether the ALJ’s opinion is supported by substantial
evidence.
Wolf Creek Collieries v. Crum, Ky. App., 673 S.W.2d
735 (1984).
The Court of Appeals’ function in reviewing a
decision by the board is to “correct the Board only where the the
[sic] 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.”
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-688
(1992).
Dr. Joyce stated that Miller suffered from either
occupational asthma or bronchopulmonary aspergillosis, either of
which would have been caused by exposure to irritants at work.
Although Dr. Joyce referred to an incident of concentrated
chemical exposure at work in early 1995, the evidence reflects
that Miller was exposed to such irritants from the inception of
his job.
Miller reported to Dr. Joyce that he began suffering
pulmonary symptoms after about two months on the job.
Pepsi
complains that Dr. Joyce’s testimony should not be considered as
she was misinformed of Miller’s medical history.
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Miller reported
to her that he had not suffered from asthma prior to his
employment with Pepsi; yet, the ALJ determined that Miller had
previously suffered from same.
We think this argument
unpersuasive as Dr. Joyce, nevertheless, was made aware of the
symptoms which led to the ALJ’s conclusion that Miller had
suffered from asthma.
In sum, we believe there was substantial
evidence on which the ALJ could reasonably find that Miller’s
pulmonary impairment was caused by long-term chemical exposure at
work.
Hence, we perceive no error with the ALJ’s determination
on this issue.
Next, we turn our attention to Pepsi’s allegations
concerning the aspergillus infection in Miller’s spine.
Specifically, Pepsi maintains that the ALJ erred in concluding
that the infection was aroused into disabling reality by the June
10, 1995 injury.
Miller was hospitalized in March 1995 for a
pulmonary problem, which the ALJ later determined was workrelated.
While hospitalized, Miller was given steroids which
lowered his immunity.
The ALJ believed that the onset of the
aspergillus infection occurred while Miller was in this state.
He further determined that it was dormant until the June 10, 1995
accident when it was aroused into disabling reality.
We believe
substantial evidence for the ALJ’s conclusion is found in the
testimony of Dr. Joyce and Dr. Harder.
Dr. Joyce testified that she believed Miller’s
hospitalization was the result of a decrease in pulmonary
functioning after work-related exposure to chemicals.
Dr. Harder
expressed his belief that Miller contracted the infection during
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treatment for this pulmonary problem and that the first
manifestation of the infection occurred with the June 10, 1995
injury.
Although Pepsi cites to conflicting evidence, we note
that the ALJ may choose to believe parts of the evidence and
disbelieve other parts, even when it comes from the same witness
or the same party’s proof.
See Caudill v. Maloney’s Discount
Stores, Ky., 560 S.W.2d 15 (1977).
Upon the whole, we perceive
no error on this issue.
Next, we address Pepsi’s contention that the ALJ erred
in finding Miller to be 100% occupationally disabled.
disagree.
We
It is well-settled that the ALJ has wide discretion in
translating evidence of functional impairment into an assessment
of occupational disability.
Seventh Street Road Tobacco
Warehouse v. Stillwell, Ky., 550 S.W.2d 469 (1976).
Dr. Joyce
assessed a 26% to 50% impairment rating based on Miller’s
pulmonary disorder.
Dr. Vaughan opined that as a result of bone
destruction, Miller has a 20% impairment to his whole body and
does not believe that he will ever be able to return to gainful
employment.
Miller also testified concerning ongoing pain in his
back, shortness of breath and restricted activities.
We believe
this constitutes substantial evidence to support the ALJ’s
finding of total occupational disability.
We next address Pepsi’s contention that the ALJ erred
by failing to apportion 50% of the liability for the arousal of
the aspergillus infection to the Special Fund.
As the pre-
existing condition, the aspergillus infection, was the result of
employment with Pepsi, we believe Pepsi is solely liable for the
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award.
See Rapid Industries, Inc. v. Clark, Ky. App., 715 S.W.2d
902 (1986).
Hence, we perceive no error concerning this issue.
We believe Pepsi’s remaining arguments are either
without merit or moot.
For the foregoing reasons, the Opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE/THOMAS S.
MILLER:
Robert L. Swisher
Lexington, KY
Victoria Combs Owen
Lexington, KY
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