MANALAPAN MINING COMPANY, INC. v. RALPH MORGAN; HON. SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
ORDERED NOT PUBLISHED BY SUPREME COURT:
(2005-SC-0790-WC)
AUGUST 10, 2006
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000805-WC
MANALAPAN MINING COMPANY, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-70045 & WC-02-90652
RALPH MORGAN; HON. SHEILA C.
LOWTHER, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; JOHNSON AND McANULTY, JUDGES.
COMBS, CHIEF JUDGE:
Manalapan Mining Co, Inc. (Manalapan)
petitions for review of an opinion of the Workers’ Compensation
Board (Board) affirming a decision by the Chief Administrative
Law Judge (CALJ) that awarded Ralph Morgan permanent partial
occupational disability benefits based on a 20% impairment
rating.
Manalapan argues that the Board erred in its assessment
of the evidence and ignored the holding of the Kentucky Supreme
Court in Cepero v. Fabricated Metals, 132 S.W.3d 839 (Ky. 2004).
Finding no error, we affirm.
Morgan’s employment at Manalapan started in August of
2001.
He sustained an injury to his back while at work on
October 31, 2001.
Following a month’s respite from his job,
Morgan returned to work and injured his back a second time on
March 20, 2002.
As a result of the second injury, Morgan
underwent fusion surgery performed by Dr. James Bean.
He has
not returned to work.
Prior to his employment with Manalapan, Morgan injured
his back in July 2000 while moving a slab of concrete.
A
central issue before the CALJ concerned what portion of Morgan’s
condition -- if any -- was attributable to a pre-existing active
impairment.
The evidence on this point was conflicting.
After
summarizing the experts’ opinions and the lay testimony, the
CALJ concluded as follows:
The next issue which must be considered is
whether [Morgan] had a pre-existing active
impairment. This is a problematic issue for
the Administrative Law Judge. There is no
doubt that Mr. Morgan experienced an episode
of back pain in 2000. Despite his testimony
that this was a negligible event, it did
warrant diagnostic tests including x-rays
and a CT scan. These studies documented the
presence of spondylolisthesis at L5-S1.
However, the medical records support Mr.
-2-
Morgan’s testimony that he subsequently
continued working, performing heavy manual
labor, without the necessity of medical
treatment. The medical experts who have
presented evidence in this claim differ in
their opinions on this point. Dr. [Bart]
Goldman felt that 7% of [Morgan’s] current
20% impairment was due to a pre-existing
symptomatic condition. Dr. [Gregory] Gleiss
agreed that [Morgan] retains a 20%
functional impairment. He felt that prior
to the surgery [Morgan] had a 5% functional
impairment. [Manalapan] argues that a close
reading of Dr. Gleiss’s report demonstrates
that this was an active and pre-existing
impairment. In contrast, Dr. Bean indicated
that Mr. Morgan had no pre-existing active
impairment. Dr. [David] Muffly also agreed.
He testified that [Morgan] had spondylolysis
before August 2001 which was aroused into
disabling reality by the two work related
injuries during the course of [Morgan’s]
employment as a coal miner. This is
certainly consistent with the fact that Mr.
Morgan was able to continue performing heavy
manual labor from July 2000 until October
2001.
After carefully considering this
conflicting evidence, the Administrative Law
Judge is persuaded that [Morgan] did not
have a pre-existing active condition. The
undersigned Administrative Law Judge
recognizes the expertise of Dr. Muffley
[sic], as well as Dr. James Bean, who also
had the benefit of treating [Morgan] for a
prolonged period of time. In light of this,
the Administrative Law Judge is persuaded
that Mr. Morgan did not have a pre-existing
active condition.
(CALJ’s Opinion and Award entered June 21, 2004, at pp. 9-10.)
Manalapan filed a petition for reconsideration,
challenging the CALJ’s decision to rely on the opinions of Drs.
-3-
Bean and Muffly.
It argued that neither doctor had “a full and
accurate understanding and picture of [Morgan’s] health prior to
[October 31, 2001].”
Citing Cepero, supra, Manalapan contended
that the CALJ erred in deferring to the opinions of either of
the two physicians.
The CALJ denied the petition.
In its appeal to the Board, Manalapan argued that Dr.
Bean’s opinion should not have been given any weight because his
report did not indicate that he was ever given a history of the
2000 back injury.
Manalapan argued that although Dr. Muffly,
Morgan’s other expert, was aware of the prior injury, his
opinion was flawed because he:
did not review or take into consideration
the records of [Morgan’s] condition prior to
his hire date at Manalapan.
In its opinion of March 18, 2005, the Board summarized
the evidence and addressed Manalapan’s arguments with respect to
the weight to be given to the experts’ testimony:
Manalapan attacks Dr. Bean’s opinion that
there was no preexisting active impairment
on the basis of the incomplete history he
received of the 2000 injury and subsequent
diagnostic testing. Where the evidence
establishes that a physician’s opinion as to
causation is based upon an inaccurate
medical history, the fact finder may reject
that opinion as lacking in reliability and
probative value. Osborne v. Pepsi-Cola Co.,
816 S.W.2d 643 (Ky. 1991). The right to
reject the expert’s opinion is usually
deemed a discretionary matter and
considerable deference is accorded the ALJ’s
fact finding authority.
-4-
At the opposite end of the spectrum is
Cepero v. Fabricated Metals Corp., supra.
In Cepero, the supreme court considered
circumstances it found sufficient to mandate
reversal based on an insufficient history
received by the medical expert. The ALJ in
Cepero relied on a medical opinion
erroneously premised on the claimant’s
egregious omission of directly relevant past
history. The court held “[medical opinion
predicated upon such erroneous or deficient
information that is completely unsupported
by any other credible evidence can never, in
our view, be reasonably probable.” Id. at
842.
Here it does not appear Morgan was
acting with deceit in keeping a correct
history from Dr. Bean, his treating
physician. While it is abundantly clear
that Dr. Bean did not have a complete
history, he was nonetheless aware of the
preexisting non-work-related
spondylolisthesis and concluded it was
asymptomatic until the injuries that
occurred at Manalapan. Although another
fact finder may have been less impressed by
Dr. Bean’s opinion that there was no
preexisting active impairment at the time of
those injuries, we are without any authority
to conclude this evidence was so lacking in
probative value that it must be disregarded
as a matter of law.
More important, however, is the opinion
of Dr. Muffly. In analyzing Dr. Muffly’s
testimony, the facts and analysis provided
by our supreme court in Robertson v. United
Parcel Service, 64 S.W.3d 284 (Ky. 2001) are
instructive. . . . Dr. Muffly was well aware
of the 2001 diagnosis of
spondylolisthesis/spondylolysis but
testified that Morgan’s initial complaints
in 2000 were the result of a back strain
that had resolved. . . . Dr. Muffly later
testified he believed the injury that
-5-
occurred in October 2001 and the re-injury
in March 2002 aroused a dormant
spondylolisthesis condition into disabling
reality and that was the reason Morgan had
to undergo surgical treatment. Under the
state of the evidence, we are unable to
conclude that the findings of the CALJ are
so wholly unreasonable that her opinion must
be reversed as a matter of law or that any
further fact finding is warranted.
(Board’s Opinion rendered March 18, 2005, at pp. 15-19.)
In this appeal, Manalapan argues that the Board “is
still engaging in the practice of what Cepero expressly
prohibits.”
(Appellant’s brief at p. 12.)
It believes that the
Board erred in allowing the CALJ to rely on Dr. Bean’s medical
report because he was not provided with a complete history of
Morgan’s back problems.
The Board erred in holding that the record
of evidence in this case met [the Cepero]
standard and in finding that the evidence
was weighed properly. Just as in Cepero,
there was a complete omission of a past
injury by Morgan to Dr. Bean, leading Dr.
Bean to erroneously find that Morgan’s
entire condition was work related.
(Appellant’s brief at p. 13.)
Manalapan also argues that the
Board erred in determining that the CALJ had relied on the
opinion of Dr. Muffly, suggesting that Dr. Muffly’s opinions
were not even utilized by the CALJ:
Dr. Muffly’s report is immaterial to the
issues on appeal. The judge [CALJ]
exclusively relied on the report of Dr.
Bean, and not on Dr. Muffly.
-6-
(Id.).
We have cited the decision of the CALJ verbatim,
supra, at pp. 2-3, which refutes the suggestion that the CALJ
relied exclusively on the opinions of Dr. Bean.
Additionally,
Manalapan previously criticized the CALJ for relying on the
opinions of both doctors on the issue of causation as recited in
its petition for reconsideration before the CALJ and its appeal
to the Board.
Although Dr. Bean was apparently not aware of the 2000
injurious event, Dr. Muffly was fully aware of Morgan’s history
of back problems.
Dr. Muffly believed that Morgan had no pre-
existing active impairment -- an opinion which was shared by Dr.
Bean.
We are not persuaded that the Board erred in
determining that the CALJ was entitled to rely on the report of
Dr. Bean.
Cepero removes from an ALJ’s discretion the ability
to rely on a medical opinion based on an incomplete history that
is otherwise “unsupported by any other credible evidence.”
S.W.3d at 842.
132
As the Board observed, Dr. Bean’s opinions were
not unsupported.
Other substantial and credible evidence
supported Dr. Bean’s opinion with respect to causation -namely, the testimony of Dr. Muffly, who was fully aware of the
complete medical history.
We have no basis to disturb the
reasoning either of the Board or of the CALJ.
-7-
Therefore, we affirm the opinion of the Workers’
Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Barry Lewis
Hazard, KY
Johnnie L. Turner
Harlan, KY
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
