GRANTS BRANCH COAL v. DANNY R. SCOTT; HONORABLE LLOYD R. EDENS, Administrative Law Judge; and WORKERS' COMPENSATION BOARDAnnotate this Case
January 4, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
GRANTS BRANCH COAL
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
** ** ** ** **
GUDGEL, Chief Judge; HUDDLESTON and GUIDUGLI, Judges.
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
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
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
reference from the employer in connection with Scott’s workers’
Dr. Wolens reported that Scott had been
condition was not work-related.
He stated that there is no
empirical or theoretical basis linking this condition to lifting
Based on Dr. Wolens’s report, Grants Branch denied Scott’s
claim for workers’ compensation coverage.
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.
In September 1999, Scott saw Dr. Vyas, a surgeon, with
complaints of pain in his lower back pain and right knee.
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.
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.
“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
In December 1999, Dr. Charles Ray, a urologist, examined
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
Thorndyke’s assignment of a permanent impairment.
He agreed with
Dr. Wolens that the medical literature did not support a connection
between lifting and epididymo-orchitis.
Between March-May 2000, Scott was treated for depression
allegedly related to pain from his injury and stress from his
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
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.
rejected the claim with respect to the knee complaint and found the
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
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
342.730 (1) (c) did not apply because Scott could return to his
Subsequently, the ALJ denied the employer’s
petition for reconsideration.
On June 6, 2001, the Workers’
Compensation Board affirmed the opinion of the ALJ.
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
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
Similarly, the ALJ has the sole authority to determine
the weight and inferences to be drawn from the evidence.3
fact-finder also may reject any testimony and believe or disbelieve
various parts of the evidence even if it came from the same
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).
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
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).
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
The ALJ has
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
overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice.”9
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).
Rowland, supra, n. 4, at 481-82; Special Fund v. Francis,
Ky., 708 S.W.2d 641, 643 (1986).
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,
Hush v. Abrams, Ky., 584 S.W.2d 48 (1979); Newberg v.
Sleets, Ky. App., 899 S.W.2d 495, 498 (1995).
Ira A. Watson Dep’t Store v. Hamilton, Ky., 34 S.W.3d 48,
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
Grants Branch raises two issues concerning causation and
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
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
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
With respect to the psychological claim, Dr.
depression resulted from the April 1999 injury. The ALJ’s findings
that Scott suffered a compensable work-related physical injury and
physical injury were supported by substantial evidence.
Grants Branch’s main argument, however, is that the ALJ
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
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.
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
The November 1999 letter is at most ambiguous and
does not clearly indicate that Dr. Thorndyke had changed his
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.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kimberly D. Newman
Herbert Deskins, Jr.