MALCOLM MORGAN v. WHITAKER COAL CORPORATION; ROBERT L. WHITTAKER, DIRECTOR OF THE SPECIAL FUND; IRENE STEEN, ALJ; AND THE WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 14, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002387-WC
MALCOLM MORGAN
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. NO. 90-07602
v.
WHITAKER COAL CORPORATION;
ROBERT L. WHITTAKER, DIRECTOR OF
THE SPECIAL FUND; IRENE STEEN, ALJ;
AND THE WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND MILLER, JUDGES.
KNOPF, JUDGE:
Malcolm Morgan appeals from a September 13, 2000,
decision of the Workers’ Compensation Board dismissing his
petition for pneumoconiosis-related disability benefits.
Morgan
contends that the Administrative Law Judge (ALJ) and the Board
both misconstrued compelling evidence that a worsening of his
disability is the result of that work-related lung disease.
Convinced that the evidence does not compel a decision in
Morgan’s favor, we affirm.
The parties have apparently stipulated that Morgan, who
was born in January 1930, was exposed to the hazards of
respirable industrial coal dust for approximately twenty years.
His date of last exposure was January 12, 1990, while in the
employ of appellee Whitaker Coal Company.
Alleging that he had
contracted pneumoconiosis, he filed a claim that same year for
disability benefits.
In April 1990 and November 1990
respectively, he settled his claim with his employer and with the
Special Fund.
disability.
The settlement was based on a purported 80%
There is also no dispute that for many years, until
he was about forty years old, Morgan smoked heavily.
He suffered
from smoking-related lung cancer, and in 1988 underwent the
removal of his left lung as a cancer treatment.
In 1996, alleging that his disability had become total,
Morgan sought to reopen his settlement.
His petition was denied.
Even if his condition had worsened, the ALJ determined, Morgan
had failed to show that the worsening was the result of
pneumoconiosis.
It was more likely, the ALJ believed, a
consequence of his lung cancer and the loss of his lung.
Both
the Board and this court affirmed the ALJ’s determination.
Thereupon, in the fall of 1998, Morgan filed a new
petition to reopen.
He supported this petition, the action
underlying the current appeal, with a new pulmonary evaluation by
Dr. Glen Baker and with deposition testimony by the surgeon who
performed the 1988 lung-removal surgery, Dr. A. J. Hiller.
Dr.
Baker opined that Morgan’s lung condition had become totally
disabling and that it was likely the result of both smoking and
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exposure to coal dust.
Dr. Hiller testified that, although the
post-operative reports did not mention it, focusing instead on
the cancer, the examination of Morgan’s removed lung had indeed
revealed signs of emphysema and chronic bronchitis.
These
conditions, Dr. Hiller opined, contributed to Morgan’s
disability.
They were also the likely result, at least in part,
of his occupational exposure to dust and fumes.
Against this evidence, Whitaker introduced the report
of Dr. Ben Branscomb, who reviewed the entire record.
According
to Dr. Branscomb, the several x-rays that had been made of
Morgan’s lung and the conflicting interpretations of those x-rays
did not support a diagnosis of coal-workers’ pneumoconiosis or
any other work-related disease.
They showed, rather, the effects
of smoking and the effects of compensation--of Morgan’s remaining
lung trying to make up for the loss of its fellow.
Dr. Branscomb’s report persuasive.
The ALJ found
Based largely on his report
and on the fact that none of the lab reports generated shortly
before or after Morgan’s surgery mentioned pneumoconiosis or the
conditions to which Dr. Hiller referred in his deposition, the
ALJ concluded that “Plaintiff [Morgan] does not . . . have the
disease of Coal Workers’ Pneumoconiosis.”
Morgan appealed to the Board.
He argued that Dr.
Hiller’s testimony and the fact that his condition had worsened
despite his not having smoked for more than twenty years
conclusively established the existence of pneumoconiosis, or at
least of a work-related, progressive impairment of his lung, and
thus that the ALJ’s conclusion to the contrary was clearly
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erroneous.
The Board disagreed.
It noted that two other
doctors, in addition to Dr. Branscomb, had opined either than
Morgan did not have pneumoconiosis or that his impairment stemmed
entirely from his smoking and the loss of his lung.
Together
with Dr. Branscomb’s testimony, these opinions, the Board
believed, created a genuine conflict in the evidence, which was
for the ALJ to resolve.
It is from this ruling that Morgan has
appealed.
As Morgan concedes, the scope of this court’s review is
limited.
The function of further review of the WCB in
the Court of Appeals is to correct 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.1
As Morgan also concedes, he bore the burden of proof on the
issues of worsened condition and causation.
Where the fact
finder has decided against the party with the burden of proof,
“only evidence [in that party’s favor] which is so overwhelming
that no reasonable person would fail to be persuaded by it” will
justify appellate relief on evidentiary grounds.2
In claiming to have met this burden, Morgan essentially
repeats the argument he presented to the Board:
It is beyond
dispute, he contends, that his condition has worsened to the
point that he is now totally disabled.
1
Because he has not smoked
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
2
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000) (citing Special Fund v. Francis,
Ky., 708 S.W.2d 641 (1986)).
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in nearly thirty years, this worsening can not be attributed to
smoking.
It must, therefore, be the result of some other lung
impairment, and, in light of Dr. Hiller’s testimony concerning
the presence of pneumoconiosis-like damage to his removed lung,
that other impairment can only be something caused by his
exposure during employment to dust and fumes.
In concluding
otherwise, Morgan contends, the ALJ and the Board disregarded
compelling evidence and thus committed a flagrant error subject
to correction on appeal.
Although we agree with Morgan that a fact finder could
have interpreted the evidence as he does, we do not agree that
such an interpretation was compelled.
For even if we grant that
his disability has become total and that his lungs were damaged
by coal dust, it does not follow that the damage is accurately
characterized as pneumoconiosis or that it caused his increased
disability.
On the contrary, even Morgan’s doctors testified
that the loss of a lung increases the strain on the remaining
lung.
And Dr. Branscomb testified that the effects of such
strain would progress and were apt to resemble the signs of
pneumoconiosis.
Morgan’s having overcome the smoking habit,
therefore, does not rule out the possibility that his condition
has continued to worsen as a direct result of the damage caused
by smoking.
This conclusion is bolstered, as the ALJ noted, by
the fact that near the time of Morgan’s surgery no doctor or lab
examiner mentioned pneumoconiosis or a like condition as an
additional concern.
The overriding threat to Morgan’s health, it
seems, was his cancer, and after that the effects of his surgery.
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Dr. Hiller’s recollection (long after the fact and after the
denial of Morgan’s first bid to reopen) that Morgan’s lungs also
bore marks of emphysema and bronchitis does not dispel that
impression, at least not to the extent of compelling a finding in
Morgan’s favor.
We agree with the Board that substantial evidence
supports the ALJ’s finding that Morgan does not have
pneumoconiosis or like disease.
It thus also supports her
conclusion that Morgan’s disability is not work related.
Accordingly, we affirm the Board’s order of September 13, 2000.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WHITAKER
COAL CORPORATION:
Phyllis L. Robinson
Manchester, Kentucky
Charles W. Berger
Harlan, Kentucky
BRIEF FOR APPELLEE SPECIAL
FUND:
John Burrell
Frankfort, Kentucky
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