MANALAPAN MINING COMPANY, INC. v. VIRGIL HUBBARD; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000154-WC
MANALAPAN MINING COMPANY, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-67148
v.
VIRGIL HUBBARD; HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, SCHRODER, AND VANMETER, JUDGES.
SCHRODER, JUDGE:
Manalapan Mining Company, Inc., petitions for
a review of a decision of the Workers’ Compensation Board which
affirmed an ALJ award of total and permanent disability to
Virgil Hubbard for a work-related injury to his upper back
received on July 30, 2002.
A review of the record demonstrates
that neither the Board nor the ALJ flagrantly erred in assessing
the evidence.
Hence, we affirm.
Virgil Hubbard (Hubbard), a chief electrician and
mechanical troubleshooter, had been employed with Manalapan
Mining Company since April of 1993.
On July 30, 2002, Hubbard
was unloading a 120 pound valve tank from a truck, by hand and
by himself.
During the process, he felt an intense pain in his
back and shoulder area.
On July 31, 2002, Hubbard was examined
by his family doctor, Dr. Effren Valencia, who ordered x-rays
(negative for any break) and referred him to Dr. Vaughn for an
MRI on August 5, 2002.
On August 1, 2002, Hubbard went to
Middlesboro Appalachian Regional Hospital’s (MARH) emergency
room complaining of a stinging in his mid back as a result of
lifting a heavy item of equipment two days prior.
X-rays
revealed a deformity due to a developmental process at the area
of the body of T1 and T2.
(Hubbard has a congenital condition
known as “Kyphosus” which is a severely painful condition of the
thoracic spine).
No acute fracture of the spine was seen on the
MARH’s x-rays.
Hubbard had been examined by Dr. Valencia two weeks
prior to the work-related injury, on July 17, 2002, with a
complaint on his breathing.
In questioning Hubbard about
possible causes of his breathing problem, Hubbard reported
discomfort in his lower back.
Hubbard also disclosed to Dr.
Valencia that he had been experiencing flashbacks of the deaths
of two of his co-workers, one from a heart attack in the mines
and the other from a crushing injury to the head.
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Hubbard was
prescribed Celexa for his nerves, an inhaler for his breathing
and Darvocet for his mid back pain.
Hubbard worked full time even with his congenital
condition.
Though Hubbard was not able to perform his normal
job duties after the work-related injury on July 30, 2002, he
continued working without interruption until September 7, 2002,
primarily because the company had accommodated him concerning
his condition.
Hubbard filed an Application for Resolution of
Injury Claim on March 19, 2003, alleging injuries to his back
and in between his shoulder blades.
On June 11, 2003, he
subsequently amended his claim to include psychological trauma
as a result of the injury.
On August 19, 2003, Hubbard again
amended his claim to include occupational disease alleging he
had contracted coal workers pneumoconiosis as a result of
exposure to coal and rock dust on July 30, 2002.
On June 1, 2004 the ALJ decided:
[T]hat the claimant is presently 100%
occupationally disabled from a combination
of his physical and emotional problems.
Plaintiff has admittedly suffered from a
long standing problem of kyphoscoliosis,
however, he has continued to be employed
over the years, and only after the injury
herein alleged, has his underlying disease
become debilitating.
Additionally, Plaintiff appears to now
be suffering from a psychological problem as
well. The Defendant Employer’s expert, Dr.
Granacher, attributed these problems to
Plaintiff having lost two friends with whom
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he had worked in the mine in 2002, however,
although Plaintiff . . . was obviously upset
about the death of his friends, stated his
psychological problems had arisen after the
injury herein, whereas his friends had died
in 1996 and 1998, respectively. I am
persuaded by the report from Dr. Weitzel,
rather than the Defendant’s expert.
For the above stated reasons, I find that
Plaintiff is presently 100% disabled and his
award shall be pain in conformity with KRS
342.730.
Thus, in summary, I do not find that
Plaintiff had an active
impairment/disability, prior to the injury
herein, and further, I am not persuaded that
Plaintiff’s emotional problems were active
either, in spite of his friend’s death, but
were caused by the accident herein.
In regards to Plaintiff’s occupational
disease claim, the consensus of the randomly
selected B-readers is positive for coal
workers pneumoconiosis. . . . However,
inasmuch as Plaintiff has already been found
to be 100% disabled in connection with his
injury claim, and based on the fact that an
injury claim takes precedent over an
occupational disease claim, Plaintiff shall
be unable to collect retraining incentive
benefits for an occupational disease claim
in addition to his 100% disability benefits.
. . . [P]laintiff’s occupational disease
claim is hereby dismissed.
On December, 23, 2004, the Board decided:
Since the 1996 amendments to KRS
342.0011, and award of whether a permanent
partial disability or a permanent total
disability has required that an injury
produce a disability rating (permanent
functional impairment rating multiplied by a
statutory factor found in KRS
342.730(1)(b)). Here, there is substantial
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evidence that the injury produced at least
one sustainable permanent functional
impairment rating from which to compute a
disability rating: i.e., the permanent
impairment rating assessed by Dr. Weitzel
for Hubbard’s psychological impairment.
This permanent impairment rating, alone, was
sufficient to permit the ALJ to proceed with
her analysis of whether Hubbard sustained a
permanent total occupational disability.
As for Manalapan’s argument that the
ALJ may have impermissibly considered
nonwork related impairment in concluding
Hubbard is totally occupationally disabled,
we again take note of the ALJ’s additional
explanation in her July 27, 2004, order
which denied Manalapan’s petition for
reconsideration. There, the ALJ explained
she principally relied on Dr. Crystal’s
conclusions, the psychological impairment
testimony she credited and Hubbard’s
testimony. For the reasons previously
given, the ALJ acted within her lawful
discretion in relying on Dr. Crystal’s
conclusions, the psychological impairment
testimony she credited and Hubbard’s
testimony. . . . Accordingly, the decision
of the ALJ is hereby affirmed.
The ALJ, as fact finder, has the sole authority to
determine the weight, credibility, substance, and inferences to
be drawn from the evidence.
Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, (Ky. 1985).
Where evidence is conflicting, the
ALJ may choose whom and what to believe.
Brothers, 547 S.W.2d 123 (Ky. 1977).
Pruitt v. Bugg
The ALJ may choose to
believe parts of the evidence and disbelieve other parts, even
when it comes from the same witness or the same party’s total
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proof.
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky.
1977).
The function of the Court of Appeals in reviewing a
decision of the Workers’ Compensation Board is to correct the
Board only where the Court perceives the Board has overlooked or
misconstrued statutes, precedent or has flagrantly erred in
assessing the evidence so as to cause a gross injustice.
Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992).
We find no such errors and therefore the decision of the
Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
W. Barry Lewis
Hazard, Kentucky
Johnnie L. Turner
Harlan, Kentucky
Susan Turner Landis
Harlan, Kentucky
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