HERBERT LEE HONEYCUTT v. TAMMY ANNE, INC.; ROBERT L. WHITAKER, Acting Director of SPECIAL FUND; J. LANDON OVERFIELD, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
September 28, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000913-WC
HERBERT LEE HONEYCUTT
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-21581
v.
TAMMY ANNE, INC.; ROBERT L. WHITAKER,
Acting Director of SPECIAL FUND; J. LANDON
OVERFIELD, Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, HUDDLESTON, and MILLER, Judges.
COMBS, JUDGE:
Herbert Lee Honeycutt asks us to review an opinion
of the Workers' Compensation Board (Board) rendered March 28,
2001.
Kentucky Revised Statutes (KRS) 342.290.
We affirm.
Honeycutt filed a claim for coal workers'
pneumoconiosis in June 1995.
He eventually settled his claim
with both Tammy Anne, Inc., his employer, and the Special Fund.
In January 2000, Honeycutt moved to reopen his
occupational disease claim.
He supported his motion with reports
from Dr. John Myers and Dr. Robert Powell — both indicating
Category 2/2 coal workers' pneumoconiosis.
Also submitted were
pulmonary function studies from Dr. Myers, which indicated an FVC
of 77% of predicted normal values and an FEV1 of 80% of predicted
normal values.
An order was entered reopening the matter, and it
was eventually assigned to an Administrative Law Judge (ALJ).
Honeycutt's employer was dismissed from the proceedings
after a determination that it had settled its entire liability in
the original action.
Pursuant to KRS 342.315, the Special Fund
requested the appointment of a university evaluator.
The ALJ so
ordered, and Honeycutt was evaluated at the University of
Louisville.
The University's physician, Dr. Richard Goldwin,
interpreted an x-ray as showing no evidence of coal worker's
pneumoconiosis.
Dr. Antara Mallampalli, also of the University
of Louisville, conducted the pulmonary function studies.
The
post-bronchodilator studies indicated a 70.9% of predicted normal
values for the FVC and a 66% of predicted normal values for the
FEV1.
Dr. Mallampalli attributed any pulmonary impairment to
Honeycutt's cigarette smoking and heart disease.
A report from Dr. Bruce Broudy was also introduced in
the proceedings.
Dr. Broudy interpreted an initial x-ray as
showing Category 0/1 coal workers' pneumoconiosis.
His post-
bronchodilator studies showed 73% of predicted normal values for
the FVC and 72% of predicted normal values for the FEV1.
Following a subsequent examination, however, Dr. Broudy
interpreted an x-ray as indicating no evidence of coal workers'
pneumoconiosis.
His post-bronchodilator studies revealed an FVC
of 82% of predicted normal values and FEV1 of 78% of predicted
normal values.
Dr. Broudy explained that this improvement was
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probably due to Honeycutt's effort as there was some question
about his cooperation during the earlier study.
After reviewing the evidence of record, the ALJ
determined that while Honeycutt could point to evidence in
support of his claim of a progression of pneumoconiosis, there
was no evidence of an increase in pulmonary impairment.
Both the
highest FVC and FEV1 values introduced were higher than those
found in the original action and were at or above 80% of
predicted normal values.
The ALJ dismissed the claim, stating as
follows:
The undersigned is required to accept to
[sic] highest showing of pulmonary function
in the reopening as he would in a new claim.
Dr. Broudy's June 6, 2000 post-bronchodilator
results show an FVC of 82% of predicted and
an FEV-1 of 78% of predicted. By that,
Plaintiff's pulmonary impairment has
improved. Even the pulmonary function
studies performed by Dr. Myers in October of
1999 show an improvement in Plaintiff's
pulmonary function.
* * * *
[P]ursuant to the Supreme Court's mandate in
Campbell v. Universal Mines, [Ky., 963 S.W.2d
623 (1998)], Plaintiff's claim must be
dismissed.
Opinion and Order at 5-7.
Honeycutt appealed the ALJ's opinion and order to the
Board.
The Board rejected Honeycutt's argument that the
requirements of Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88 (2000)
and KRS 342.315(2), the "presumptive weight provision," had been
overlooked or disregarded.
Therefore, it affirmed.
asks us to review that decision.
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Honeycutt
Honeycutt contends that the Board erred by concluding
that the ALJ was entitled to disregard the findings and opinions
of Dr. Antara Mallampalli, the university evaluator, following
his evaluation performed pursuant to KRS 342.315.
Honeycutt
summarizes his argument as follows:
This appeal presents a unique question in
whether KRS 342.732 or KRS 342.316 controls
when there is conflict between the highest
FVC and FEV-1 of record and the university
evaluator's findings. However, considering
the legislative intent in enacting KRS
342.316 whereby an independent party would be
given presumptive weight unless contrary
reasons are given, it is apparent that KRS
342.316 should control.1
Honeycutt's Petition for Review at 4.
In Magic Coal Co. v. Fox, supra, the Kentucky Supreme
Court explained that KRS 342.315(2) created a rebuttable
presumption that was governed by Kentucky Rules of Evidence (KRE)
301 and did not shift the burden of persuasion.
The court noted
that it was reasonable to presume that the clinical findings and
opinions of a medical expert who was not hired by the parties
would accurately reflect the medical condition of the claimant in
the absence of evidence to rebut that presumption.
It also
reasoned that unbiased medical evidence would assist ALJs in
weighing the conflicting evidence that was presented by the
parties.
The court concluded that an ALJ remained free to weigh
conflicting medical evidence and to reject the clinical findings
and opinions of a university evaluator — but that the ALJ must
1
KRS 342.315 — not KRS 342.316 — is the presumptive weight
provision referred to by Honeycutt.
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specifically provide a reasonable basis for doing so in order to
comply with the provisions of KRS 342.315(2).
In Newberg v. Wright, Ky., 824 S.W.2d 843 (1992), the
Kentucky Supreme Court discussed the American Medical
Association's Guides to the Evaluation of Permanent Impairment
(Guides).
These guidelines provide for a consistent objective
standard for evaluating spirometric test results.2
Because the
results of both the FEV1 and FVC are affected by the degree of
the patient's cooperation, the Guides indicate that the greatest
result obtained on each test is the most accurate representation
of any actual impairment.
S.W.2d 699 (1992).
See Watkins v. Ampak Mining, Inc., 834
KRS 342.316 governs the admissibility of
evidence obtained by spirometric testing.
It requires that FVC
or FEV1 values reported by a physician be the largest obtained
from at least three acceptable spirometric maneuvers.
While an
ALJ has the discretion to use either the FVC or FEV1 test
category, KRS 342.732(2), requires the ALJ to use the single
highest value from the chosen category to determine respiratory
impairment.
Id.
An ALJ is not authorized to prefer one
physician's spirometric test data over the test data of other
physicians.
Id.
In this case, the medical evidence indicated that
Honeycutt's pulmonary impairment had decreased over time.
While
Dr. Mallampalli, the university evaluator, presented presumably
sound test data, the results were not the highest spirometric
2
Spirometry is a forced expiratory maneuver which indicates
the degree of pulmonary impairment.
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values obtained from Honeycutt.
We agree with the Board's
conclusion that the ALJ's explicit recognition of his obligation
under KRS 342.732 — that is, to accept the single highest value
from a chosen category to determine impairment — satisfied his
obligation to provide a reasonable basis for rejecting Dr.
Mallampalli's study values.
The ALJ correctly complied with the
provisions of KRS 342.315(2) and the requirements of Magic Coal
Co. v. Fox, supra.
The Board did not overlook or misapply controlling law
or commit an error in assessing the evidence so flagrantly as to
cause gross injustice when it concluded that the ALJ properly
accounted for his decision to reject the data of the university
evaluator data in this case.
Western Baptist Hosp. v. Kelly,
Ky., 827 S.W.2d 685 (1992).
Consequently, the opinion of the
Workers' Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE SPECIAL
FUND:
Kevin R. Mullins
Whitesburg, KY
John Burrell
Frankfort, KY
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