BRUNSWICK BOWLING LEAGUE v. JOHN SIMS; HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
JANUARY 12, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-001001-WC
BRUNSWICK BOWLING LEAGUE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-99-54628
v.
JOHN SIMS; HON. SHEILA C.
LOWTHER, CHIEF ADMINISTRATIVE
LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON1 AND TAYLOR, JUDGES; BUCKINGHAM,2 SENIOR JUDGE.
JOHNSON, JUDGE:
Brunswick Bowling League has petitioned for
review of an opinion of the Workers’ Compensation Board entered
on April 7, 2006, which reversed and remanded an order entered
by the Administrative Law Judge on November 18, 2005, denying
1
Judge Rick A. Johnson completed this opinion prior to the expiration of his
term of office on December 31, 2006. Release of the opinion was delayed by
administrative handling.
2
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
John Sims’s motion to reopen his workers’ compensation claim.
Having concluded that the Board has not overlooked or
misconstrued controlling statutes or precedents nor has it
committed an error in assessing the evidence so flagrant as to
constitute a gross injustice,3 we affirm.
Sims was injured on November 11, 1999, while working
for Brunswick.
He filed an application for resolution of his
workers’ compensation claim on March 7, 2001, alleging injuries
to his neck, left shoulder, and arm.
On November 30, 2001, an
ALJ found Sims to have an 18% permanent impairment rating based
on the combined rating of 14% for the left shoulder and 5% for
the neck.
The impairment rating was based on the assessment of
Sims’s treating physician at the time, Dr. David Thurman.
Sims filed a motion to reopen his claim on March 3,
2004, on the basis that Brunswick had refused to authorize
medical treatment in the form of injection therapy for his
thoracic spine.
Sims also alleged a change of condition by way
of an increase in disability since the original award.
The
motion to reopen was granted and the claim was assigned to an
ALJ for adjudication.
Brunswick filed a motion to dismiss
Sims’s claim asserting that he failed to produce evidence of a
worsening of his impairment.
The motion was denied and the
claim proceeded with the taking of proof on reopening.
3
Both
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
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parties presented evidence in regard to the issue of the
contested thoracic spine treatment; however, no evidence was
presented on the issue of a worsening of the neck or shoulder
injuries.
On November 1, 2004, an opinion and order was entered
by the ALJ dismissing Sims’s claim on reopening.
The ALJ found
based upon medical records that Sims knew of his thoracic spine
injury at the time he filed his original claim, but had filed to
assert the injury.
As such, Sims was barred under the “merger”
provision of KRS 342.270(1) from asserting a claim based upon an
injury to his thoracic spine.
The ALJ also concluded that Sims
had failed to prove he was entitled to an increase in his
percentage of permanent disability on reopening based on a lack
of evidence of an increase in impairment.
Sims appealed to the
Board the ALJ’s finding that treatment for his thoracic spine
was not compensable.
The Board affirmed the decision.
Sims did
not appeal the ALJ’s dismissal of his claim for an increase in
the percentage of his permanent disability.
Sims filed a second motion to reopen on October 24,
2005, which is the subject of this petition for review, alleging
a worsening of his condition since the time of the original
opinion and award.
In support of his allegation, Sims submitted
medical records from Dr. John Lach dating from September 9,
2003, as well as a letter from Dr. Lach dated December 16, 2004,
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and a September 28, 2005, note from Dr. Lach written on a
prescription pad.
In the September 28, 2005, note, Dr. Lach
indicated that he had been advised of Dr. Thurman’s assessment
of a 14% impairment related to the left shoulder and a 5%
impairment related to the neck.
Dr. Lach noted that he agreed
with the 14% rating, but stated that he would rate Sims’s neck
injury as a “Category II – 8%” impairment under the DRE model
for the assessment of cervical spine impairment.
As such, Dr.
Lach stated that his impairment ratings of 14% and 8% would
yield a combined whole person impairment rating of 21%.
Brunswick objected to this second motion to reopen on
the grounds that it was identical to the first motion to reopen
which had been fully adjudicated and dismissed.
Brunswick
asserted that there was no evidence of a change in diagnosis or
more recent diagnostic studies or evaluations showing a
worsening of Sims’s condition.
Brunswick further asserted that
Dr. Lach agreed that Sims’s 14% rating for the shoulder was
unchanged from the time of the original award and that Dr. Lach
placed Sims’s cervical impairment rating in the same category as
Dr. Thurman’s assessment which was used for the original award.
The only difference, according to Brunswick, was that Dr. Lach
placed Sims in the high end of the range for a Category II
impairment whereas Dr. Thurman had assessed the low end of the
Category II range.
Brunswick argued that the additional 3%
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impairment assessed by Dr. Lach was based upon subjective
complaints of pain rather than “objective medical evidence” as
required for a reopening based upon a change of disability
pursuant to KRS 342.125(1)(d).
On November 18, 2005, the Chief Administrative Law
Judge entered an order denying Sims’s motion to reopen on the
grounds that Sims had failed to make a prima facie showing of a
change of condition.
Sims appealed this order to the Board.
In
a 2-1 decision, the Board reversed the order of the CALJ and
remanded the claim for entry of an order reopening the claim for
adjudication on the merits.
This petition for review followed.
Upon review, this Court will only reverse the Board’s
decision if it has overlooked or misconstrued a controlling
statute or so flagrantly erred in evaluating the evidence to
result in gross injustice.4
Brunswick argues that the Board
erred in reversing the order of the CALJ on the grounds that the
Board applied the wrong standard of review.
We disagree.
It is
well settled that an ALJ is the sole fact-finder in regard to a
workers’ compensation claim and has the sole authority to
evaluate the quality, character, and substance of the evidence
before her.5
Likewise, an ALJ is at liberty to assign the weight
to be given to the evidence and may accept or reject testimony
4
Western Baptist Hospital, 827 S.W.2d at 687-88.
5
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
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as is deemed proper.6
However, where the evidence compels a
different result, the Board may properly reverse the findings of
an ALJ.7
The only evidence presented in support of Sims’s
motion to reopen were the records of Dr. Lach as well as his
letter of December 16, 2004, and the note of the prescription
pad of September 28, 2005, assigning a higher impairment rating
for the cervical spine than was contained in the original award.
There was no rebuttal evidence submitted by Brunswick.
KRS
342.125(1)(d) states as follows:
(1)
Upon motion by any party or upon an
administrative law judge’s own
motion, an administrative law judge
may reopen and review any award or
order on any of the following
grounds:
. . . .
(d)
Change of disability as shown by
objective medical evidence of a
worsening or improvement of
impairment due to a condition
caused by the injury since the date
of the award or order.
Prior to a claim being assigned for adjudication on the merits
under KRS 342.125(1)(d), a claimant must make a prima facie
showing in its motion of sufficient information to demonstrate a
6
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
7
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
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substantial possibility of success in the event evidence is taken
in regard to the claim.8
In this case, we agree with the Board that Sims met his
burden of making a prima facie showing that he had had a change
in disability based upon Dr. Lach’s September 28, 2005, note
indicating a worsening of impairment.
As the Board noted,
although Dr. Lach did not explain the basis for his assessment of
an 8% impairment rating, his medical chart and notes which were
attached to Sims’ motion to reopen are objective medical evidence
sufficient to meet the threshold to sustain a motion to reopen
under KRS 342.125(1)(d) even though he may yet be unsuccessful on
the merits of his claim when it is considered upon reopening.
Based upon the foregoing, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE JOHN SIMS:
Thomas M. Edelen
Louisville, Kentucky
Wayne C. Daub
Louisville, Kentucky
8
Stambaugh v. Cedar Creek Mining Co., 488 S.W.2d 681, 682 (Ky. 1972).
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