GRANTS BRANCH COAL v. DANNY R. SCOTT; HONORABLE LLOYD R. EDENS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
January 4, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-001424-WC
GRANTS BRANCH COAL
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-80786
DANNY R. SCOTT; HONORABLE LLOYD R.
EDENS, Administrative Law Judge;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and GUIDUGLI, Judges.
HUDDLESTON, Judge:
Grants Branch Coal appeals from an opinion of
the Workers’ Compensation Board that affirmed a decision by an
Administrative Law Judge awarding Danny R. Scott benefits based
upon a 10% permanent partial disability resulting from a workrelated groin injury.
On April 3, 1999, Scott injured his groin, back and leg
when he was thrown against a piece of coal mining machinery known
as a miner after a chain holding a tram motor that he and another
employee were moving broke. He immediately felt pain in his groin,
lower back and stomach, but he did not seek medical treatment at
that time.
Due to pain and swelling in his groin area, Scott did
not return to work and saw a family physician a few days later.
On April 29, 1999, Scott was examined by Dr. William
Thorndyke, a urologist, who diagnosed Scott as suffering from a
pulled groin muscle and acute epididymitis, which was confirmed by
an ultrasound.
He prescribed antibiotics, pain medication, rest
and heat for the strained groin muscle.
Dr. Thorndyke recommended
avoidance of lifting and manual labor.
He attributed Scott’s
symptoms to the work injury.
In May 1999, Scott was seen by Dr. Daniel Wolens, who is
certified
in
occupational
and
environmental
medicine,
upon
reference from the employer in connection with Scott’s workers’
compensation claim.
diagnosed
with
Dr. Wolens reported that Scott had been
epididymitis
and
condition was not work-related.
orchitis,
but
he
felt
this
He stated that there is no
empirical or theoretical basis linking this condition to lifting
tasks.
Based on Dr. Wolens’s report, Grants Branch denied Scott’s
claim for workers’ compensation coverage.
In
August
1999,
Dr.
Thorndyke
prepared
a
Workers
Compensation Form 107 stating that both Scott’s acute epididymitis
and groin pull were directly related to the lifting and straining
that occurred with the April 1999 incident.
He stated that Scott
should be able to return to work after achieving full recovery in
approximately eight weeks.
Dr. Thorndyke, however, assigned a 10%
permanent whole body impairment under the most recent American
Medical Association (AMA) Guidelines.
-2-
In September 1999, Scott saw Dr. Vyas, a surgeon, with
complaints of pain in his lower back pain and right knee.
In
August
an
2000,
Scott
was
orthopedic surgeon.
examined
by
Dr.
Richard
Sheridan,
He felt that Scott had suffered a low back
strain from the April 1999 incident and had a slight tear in his
right medial meniscus.
Dr. Sheridan, however, did not attribute
his current complaints to a work injury.
In
October
1999,
Scott
filed
an
application
for
resolution of injury claim seeking compensation related to his
groin, back and knee based on the April 1999 incident, and attached
Dr. Thorndyke’s Form 107 medical report.
On November 18, 1999, in
response to a request from Grants Branch concerning whether Scott
had a permanent impairment, Dr. Thorndyke stated in a letter that
he believed the condition had “already more or less resolved,”
although his pain may recur.
He concluded:
“Based on this last
review in early September, he [Scott] appears to have more or less
recovered fully and I would anticipate that he can return to full
activity.”
In December 1999, Dr. Charles Ray, a urologist, examined
Scott.
Based on his review of the medical records and his
examination, he opined that Scott had suffered a case of bacterial
epididymo-orchitis unrelated to his employment. He stated that the
condition
had
been
fully
resolved
and
disagreed
Thorndyke’s assignment of a permanent impairment.
with
Dr.
He agreed with
Dr. Wolens that the medical literature did not support a connection
between lifting and epididymo-orchitis.
-3-
Between March-May 2000, Scott was treated for depression
allegedly related to pain from his injury and stress from his
unemployment.
He
amended
his
compensation
claim
to
add
a
psychological component. In September 2000, Scott was evaluated by
Dr. David Schraberg, a psychiatrist, who concluded that Scott
suffered from depression related to his work injury, but found no
permanent psychiatric impairment.
On January 20, 2000, an arbitrator found that Scott had
suffered a work-related injury that contributed to the infectious
development of epididymitis and orchitis, but that he had no
permanent
impairment.
He
awarded
temporary
total
disability
benefits for eight weeks and payment of Scott’s medical expenses.
This decision was appealed to an ALJ for de novo review.
After a hearing, the ALJ awarded Scott temporary total
disability for a period of eight weeks and permanent partial
disability benefits based on a 10% permanent impairment.
He
rejected the claim with respect to the knee complaint and found the
back
condition
muscular strain.
to
be
a
temporary
condition
resulting
from
a
He also felt based on Scott’s testimony and Dr.
Schraberg’s report that Scott suffered depression as a result of
the work injury, but again found no functional impairment due to
it.
The ALJ recognized the conflict in the opinions of Drs.
Thorndyke, Ray and Wolens, but found the testimony of Dr. Thorndyke
more persuasive in assessing a 10% functional impairment as a
result of the April 1999 injury.
He granted benefits based on a
10% permanent disability rating under Kentucky Revised Statutes
(KRS) 342.730 (1)(b).
He also held the multiplier set forth in KRS
-4-
342.730 (1) (c) did not apply because Scott could return to his
previous employment.
Subsequently, the ALJ denied the employer’s
petition for reconsideration.
On June 6, 2001, the Workers’
Compensation Board affirmed the opinion of the ALJ.
This appeal
followed.
Grants Branch argues that the Board erred in holding that
the ALJ properly relied on the impairment rating assigned by Dr.
Thorndyke in his Form 107 report.
It also contends that the ALJ’s
finding that Scott’s epididymitis was work-related is clearly
erroneous.
Concomitantly, it asserts that Scott’s psychological
problem is not compensable because it was not a direct result of a
work-related physical injury.
See KRS 342.0011 (1).
We begin with the standard of review.
In a workers’
compensation action, the employee bears the burden of proving every
essential element of a claim.1
As the fact-finder, the ALJ has the
authority to determine the quality, character and substance of the
evidence.2
Similarly, the ALJ has the sole authority to determine
the weight and inferences to be drawn from the evidence.3
The
fact-finder also may reject any testimony and believe or disbelieve
various parts of the evidence even if it came from the same
1
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000);
Gibbs v. Premier Scale Co./Indiana Scale Co., Ky., 50 S.W.3d 754,
763 (2001); Jones v. Newberg, Ky., 890 S.W.2d 284, 285 (1994).
2
Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993);
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
3
Miller v. East Kentucky Beverage/Pepsico, Inc., Ky., 951
S.W.2d 329, 331 (1997); Luttrell v. Cardinal Aluminum Co., Ky.
App., 909 S.W.2d 334, 336 (1995).
-5-
witness.4
When the decision of the fact-finder is in favor of the
party with the burden of proof, the issue on appeal is whether the
ALJ’s decision is supported by substantial evidence, which is
defined as some evidence of substance and consequence sufficient to
induce conviction in the minds of reasonable people.5
broad
discretion
disability.6
in
determining
the
extent
of
The ALJ has
occupational
Once the medical evidence establishes the existence
of an injury, lay testimony of the claimant is competent on the
extent of disability.7
A party challenging the ALJ’s factual
findings must do more than present evidence supporting a contrary
conclusion to justify reversal.8
Upon review of the Board’s
decision, the appellate court’s function is limited to correcting
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.”9
4
Magic Coal, supra, n. 1; Whittaker v. Rowland, Ky., 998
S.W.2d 479, 481 (1999); Halls Hardwood Floor Co. v. Stapleton, Ky.
App., 16 S.W.3d 327, 329 (2000).
5
Rowland, supra, n. 4, at 481-82; Special Fund v. Francis,
Ky., 708 S.W.2d 641, 643 (1986).
6
Cal Glo Coal Co. v. Mahan, Ky. App., 729 S.W.2d 455, 458
(1987); Thompson v. Fischer Packing Co., Ky. App., 883 S.W.2d 509,
511 (1994).
7
Hush v. Abrams, Ky., 584 S.W.2d 48 (1979); Newberg v.
Sleets, Ky. App., 899 S.W.2d 495, 498 (1995).
8
Ira A. Watson Dep’t Store v. Hamilton, Ky., 34 S.W.3d 48,
52 (2000).
9
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687 (1992). See also McNutt Construction v. Scott, Ky., 40 S.W.3d
854 (2001); Huff Contracting v. Sark, Ky. App., 12 S.W.3d 704, 707
(continued...)
-6-
Grants Branch raises two issues concerning causation and
duration.
It
challenges
the
ALJ’s
finding
that
Scott’s
epididymitis and psychological condition (depression) were caused
by the April 1999 incident.
It refers to the opinion of Dr. Ray
that Scott suffered from bacterial epididymitis and the statements
from both Drs. Ray and Wolens that there is no support in the
scientific literature establishing suggesting a causal connection
between lifting tasks and the development of epididymitis or
orchitis.
While the opinions of these physicians support Grants
Branch’s position, Dr. Thorndyke unequivocally opined that Scott’s
acute epididymitis was directly related to and caused by the
straining and lifting associated with the April 1999 incident.
Scott had not experienced symptoms of this condition prior to the
incident.
As a certified urologist and treating physician, Dr.
Thorndyke was qualified to give this opinion, and the ALJ was
justified in relying on it.
Grants Branch’s argument merely
illuminates a conflict in the evidence, which is insufficient to
compel reversal.
Shraberg’s
With respect to the psychological claim, Dr.
report
and
Scott’s
testimony
indicated
that
his
depression resulted from the April 1999 injury. The ALJ’s findings
that Scott suffered a compensable work-related physical injury and
that
his
psychological
condition
was
a
direct
result
physical injury were supported by substantial evidence.
9
(...continued)
(2000).
-7-
of
the
Grants Branch’s main argument, however, is that the ALJ
erroneously
concluded
that
Dr.
Thorndyke
believed
that
Scott
suffered a permanent impairment from the April 1999 incident.
Although acknowledging that Dr. Thorndyke assigned a 10% permanent
functional impairment rating in his Form 107 report, Grants Branch
contends its position is supported by language in the Form and his
subsequent letter of November 1999 stating that he anticipated
Scott would fully recover in eight weeks and that Scott could
return to full activities.
We agree with the Board that Grants Branch has not shown
that the ALJ erroneously relied on Dr. Thorndyke’s impairment
rating. As the Board indicated, it is not unreasonable for the ALJ
to
believe
Dr.
Thorndyke
was
aware
of
and
followed
the
AMA
Guideline directive that it is inappropriate to mischaracterize an
impairment as permanent unless it is not likely to remit despite
medical treatment. Moreover, Dr. Thorndyke’s statements that Scott
should recover and could return to full activity is not necessarily
inconsistent with a permanent partial disability.
KRS 342.730
provides for different benefit levels for persons who can return to
employment or return to their previous employment.
In his hearing
testimony, Scott stated that his groin pain had returned after
being absent for a period.
In his November 1999 letter, Dr.
Thorndyke stated that Scott’s pain “may or may not recur[,]” and
that “[i]ndividuals who may have injured themselves at this point
may
more
easily
themselves.”
develop
an
injury
again
if
they
over
exert
The November 1999 letter is at most ambiguous and
does not clearly indicate that Dr. Thorndyke had changed his
-8-
opinion
or
retracted
his
earlier
10%
permanent
impairment
assessment. As the Board stated, Dr. Thorndyke’s statements can be
interpreted as his belief that Scott had reached maximum medical
improvement rather than a conclusion that he no longer had a
permanent partial impairment.
As a result, Grants Branch has not
shown that the Board misconstrued controlling statutory or case
law, or committed an error in assessing the evidence so flagrant as
to cause gross injustice.
The
opinion
of
the
Workers’
Compensation
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kimberly D. Newman
Lexington, Kentucky
Herbert Deskins, Jr.
Pikeville, Kentucky
-9-
Board
is
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