DANIEL SMITH v. SPECIAL FUND; KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS COMPENSATION BOARD
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RENDERED:
DECEMBER 28, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000962-WC
DANIEL SMITH
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-41025
v.
SPECIAL FUND; KEVIN KING,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; JOHNSON, AND McANULTY, JUDGES.
McANULTY, JUDGE:
Daniel Smith seeks review of an opinion of the
Workers' Compensation Board (Board) affirming an order of the
Administrative Law Judge (ALJ) which denied his motion to reopen
his claim for Workers' Compensation benefits.
Smith contends
that the ALJ’s finding that there was no worsening of his
condition was not supported by substantial evidence, and was thus
erroneous.
Because the ALJ’s decision was supported by
substantial evidence, we affirm.
Smith was originally injured on October 9, 1992, when,
while in the employment of Shamrock Coal Company, he slipped and
fell off a supply car while unloading railroad track ties.
As a
result of the accident, Smith fractured his right shoulder and
ruptured a disc in his upper back and cervical area.
As a
consequence of the injury, in October 1994 Smith filed a workers’
compensation claim.
The claim was initially settled for a 15%
disability rating apportioned equally between Shamrock Coal and
the Special Fund; the settlement was approved on April 6, 1995.
On May 6, 1996, Smith filed a motion to reopen his
case, claiming an increase in occupational disability; the motion
was subsequently denied.
On August 26, 1996, Smith filed a
second motion to reopen.
This motion was granted, and Smith was
eventually awarded an increase in benefits equating to 10%.
On June 21, 1999, Smith filed the present motion to
reopen.
Smith contends that since the first reopening his pain
has become more severe; that he now has more pain radiating into
his right shoulder area; that he is experiencing more frequent
and severe headaches as a result of his cervical neck problems;
that it is now more painful for him to turn his head from side to
side and extend his arms over his head; that since April 1997 he
has been dropping things quite often and his right hand grip
strength has weakened considerably; that his ability to walk and
stand and sit for long periods of time has worsened; that his
upper back and head start to hurt if he does not have something
to lean his head against; that his ability to sleep has
decreased; that some nights he only gets two or three hours of
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sleep; that he wakes four or five times a night due to pain; that
he is unable to perform exertional type activities such as
bending, crawling, stooping, and crouching because of his back
and neck pain; and that his ability to do these activities has
decreased since his April 1997 award.
As a result of the
purported worsening of his condition, Smith asserts that he has
no capability of returning to active gainful employment, and that
he is now totally occupationally disabled.
During the pendency of the present claim, Smith settled
with Shamrock Coal Company.
On December 27, 2000, the ALJ issued
an opinion and award determining that Smith had failed to prove
that either his condition had worsened or that his occupational
disability had increased.
Smith appealed the ALJ’s decision to
the Workers’ Compensation Board.
On April 4, 2001, the Board
entered an opinion affirming the decision of the ALJ.
This
appeal followed.
In this appeal, Smith contends that the decision of the
ALJ was erroneous on the basis that the more probative and
credible evidence compels a finding that Smith has suffered a
worsening of his condition since his first reopening award in
April 1997, and that he is now 100% permanently occupationally
disabled.
Pursuant to KRS 342.125(1)(d), to reopen his claim,
Smith is required to show a change of disability as shown by
objective medical evidence of worsening of impairment due to a
condition caused by the injury since the date of the previous
award or order.
In a proceeding to reopen a prior award, the
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moving party bears the burden of proof.
Stambaugh v. Cedar Creek
Mining Co., Ky., 488 S.W.2d 681, 682 (1972).
"[W]here medical
testimony is concerned and that testimony is conflicting, . . .
the question of who to believe is one exclusively for the [ALJ]."
Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123, 124 (1977).
The
ALJ, as the finder of fact, and not the reviewing court, has the
sole authority to determine the quality, character, and substance
of the evidence.
Square D Company v. Tipton, Ky., 862 S.W.2d
308, 309 (1993).
“Where there is evidence of substantial quality
to support the ALJ's decision, the reviewing tribunal is bound by
the record.”
Addington Resources, Inc. v. Perkins, Ky. App., 947
S.W.2d 421, 423 (1997);
Paramount Foods, Inc. v. Burkhardt, Ky.,
695 S.W.2d 418, 419 (1985).
“[T]he function of the Court of
Appeals in reviewing decisions of the Workers' Compensation Board
is to correct the Board only when we perceive that the Board has
overlooked or misconstrued controlling law or committed an error
in assessing the evidence so flagrant as to cause gross
injustice.”
Daniel v. Armco Steel Co., L.P., Ky. App., 913
S.W.2d 797, 797-798 (1995);
Western Baptist Hospital v. Kelly,
Ky., 827 S.W.2d 685, 687-688 (1992).
The ALJ concluded that Smith had not demonstrated a
worsening of his impairment since the 1996 - 1997 reopening.
his December 27, 2000, Opinion, the ALJ stated,
In support of its position, the Special Fund
has offered the opinion of Dr. Patrick. Dr.
Patrick did not directly address if Smith’s
condition has worsened since [ALJ] Smith’s
opinion and award. However, Dr. Patrick did
address Smith’s restrictions, which would
limit Smith to performing sedentary and light
duty work. Dr. Patrick’s restrictions are
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In
essentially the same as those imposed by Dr.
Templin in 1994 and 1996.
Taking into account Smith’s age (50),
education (high school), work experience
(heavy manual labor), and the restrictions
imposed by Dr. Patrick, the Administrative
Law Judge finds that Smith has failed to
prove that either his condition has worsened
or that his occupational disability had
increased. In doing so, the Administrative
Law Judge specifically relies on the
restrictions of Dr. Patrick, which the
Administrative Law Judge finds to be similar
to, if not the same as, those imposed by Dr.
Templin in the two previous litigations of
this claim.
In November 2000, Dr. O. M. Patrick, at the request of
the Special Fund, evaluated Smith.
Dr. Patrick found Smith to
have a total of 14% permanent functional impairment to the body
as a whole, with 10% impairment due to excision of a cervical
disc with fusion with persistent pain, and 4% due to persistent
numbness of the right thumb.
Dr. Patrick concluded that Smith
should be restricted from repetitive over head gaze, repetitive
flexion or extension of the neck, and repetitive use of the
extremities overhead to lift greater that 25 pounds or more than
10 pounds frequently.
As noted by the ALJ, these restrictions
are very similar to the restrictions placed by Dr. James Templin
in prior litigation in the case.
and 1996.
Dr. Templin saw Smith in 1994
In 1994 Dr. Templin assessed a 22% impairment, and in
1996 he assessed a 20% impairment.
In 1996 Dr. Templin
recommended against repetitive use of the upper extremities for
pushing, pulling, lifting or working overhead.
In 1994 he
recommended against lifting in excess of 25 pounds on a maximum
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basis, and 10 pounds on a frequent basis.
As stated by the
Board,
When one views a comparison of the medical
testimony of Dr. Patrick, particularly as it
relates to the restrictions, with the
restrictions as were assessed during the 1996
- 1997 reopening, one can readily see why the
ALJ believed Smith had failed in his burden
of proof. The restrictions assessed by Dr.
Patrick are virtually identical to those of
the physicians testifying in the initial
reopening in 1996 and 1997. Impairment
rating, of course, is a factor but, at the
time of the injury in this claim, it was not
ultimately controlling. See Seventh Street
Road Tobacco Warehouse v. Stillwell, Ky., 550
S.W.2d 469 (1976). While there are small
differences, even the impairment rating of
Dr. Muckenhausen [the medical evaluator
preferred by Smith] as compared to the
impairment ratings assessed by Dr. Templin in
the original claim and upon the initial
reopening are substantially the same.
While Smith challenges the ALJ’s reliance upon Dr.
Patrick on the basis that Dr. Patrick did not examine him prior
to the most recent reopening, this is a question that goes to the
weight and credibility to be accorded the evidence from Dr.
Patrick and does not undermine the ability of the ALJ to rely
upon it.
Square D Company v. Tipton, supra.
While the
conclusion reached by the ALJ and affirmed by the Board is not
the only one possible, it is clearly supported by substantial
evidence.
Because the order denying the motion was a reasonable
exercise of the ALJ’s discretion based upon competent, probative
evidence, and because the Board has not overlooked or
misconstrued controlling law or committed an error in assessing
the evidence so flagrant as to cause gross injustice, we have no
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choice but to affirm. See Western Baptist Hospital v. Kelly,
supra.
For the foregoing reasons, the Opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR SPECIAL FUND,
APPELLEE:
Edmond Collett, P.S.C.
Edmond Collett
John Hunt Morgan
Monica Rice Smith
Hyden, Kentucky
David R. Allen
Frankfort, Kentucky
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