RUTH WHITT v. MARTIN COUNTY COAL CORPORATION; SPECIAL FUND; HONORABLE DENIS S. KLINE, Administrative Law Judge; and COMMONWEALTH OF KENTUCKY, WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
November 21, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
96-CA-3248-WC
RUTH WHITT
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC- 89-9790
v.
MARTIN COUNTY COAL CORPORATION;
SPECIAL FUND;
HONORABLE DENIS S. KLINE,
Administrative Law Judge; and
COMMONWEALTH OF KENTUCKY,
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * * * * * * * * * * * * * * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM and HUDDLESTON, Judges.
BUCKINGHAM, JUDGE.
Ruth Whitt (Whitt) appeals from an opinion of
the Workers' Compensation Board (Board) affirming a decision by
an administrative law judge (ALJ) overruling her motion to reopen
a previous claim for a work-related back injury.
For the reasons
set forth hereinafter, we affirm.
Whitt sustained a work-related back injury in 1988
while employed as a janitor at Martin County Coal Corporation
(Martin).
She was awarded benefits based on a 20 percent
occupational disability as a result of that injury.
Whitt
returned to work a few weeks after the injury and continued to
work for several months before being laid off.
She did not
return to work after that time.
In June 1995, Dr. David L. Weinsweig, a neurosurgeon,
performed a microdiscectomy on Whitt at the L4/L5 level.
She
thereafter sought a reopening of her claim, but the ALJ
determined that her "current complaints are not related to her
June, 1988 work injury" and that Martin should be "relieved of
responsibility for payment of the medical expense of surgery."
The Board affirmed the ALJ's decision, and Whitt filed this
appeal.
Whitt's medical evidence on reopening consisted of the
deposition of Dr. Weinsweig, and Martin submitted the depositions
of Drs. Robert Goodman and Matthew Vuskovich.
In addition, Whitt
testified at the hearing before the ALJ.
Dr. Weinsweig testified that he performed the back
surgery on Whitt due to her pain and an MRI which showed
"bulging/early herniated disk L4-5."
On the causation issue
concerning Whitt's current difficulties in relation to her prior
injury, the relevant portion of Dr. Weinsweig's deposition is as
follows:
Q.
Doctor, was this surgery that you
performed, was it a direct result of her
injury of June of 1988?
A.
I never met her before 1993, but from
the history that I gather, the pain
began when she was injured at work in
1988.
2
TR Vol. II, p. 178.
Dr. Goodman testified that he had examined Whitt in
1989 for Martin concerning her 1988 injury and had again examined
Whitt for Martin in 1996.
He testified that he had assigned
Whitt a three percent impairment rating, but now assessed her
impairment rating at eight percent.
However, Dr. Goodman stated
that his increased impairment rating was based solely on Whitt's
subjective complaints of pain and the fact that she had undergone
back surgery, as his examination had actually shown that Whitt's
condition had improved in some ways.
His report states twice
that he "cannot demonstrate any objective change" in Whitt's
condition.
Dr. Vuskovich testified that he also had examined Whitt
in 1989 and again in 1996.
According to his 1996 report, the
surgery performed on Whitt was "worthless."
Dr. Vuskovich, who
assigned a zero impairment rating to Whitt in 1989, testified
that he could see no association between the 1988 injury and her
current problems and surgery.
The ALJ found that Whitt had not met her burden of
proof in showing that her 1995 surgery was related to her 1988
injury, stating that "[m]y conclusions are based on common sense
and, to a lesser degree, the testimony of Drs. Vuskovich and
Goodman."
Whitt appealed that ruling to the Board, along with
the ALJ's ruling to relieve Martin of the duty to pay for the
1995 surgery.
The Board affirmed the ALJ, noting that the ALJ's
usage of the term "common sense" was "merely a statement that he
3
is drawing a reasonable inference from the evidence before him."
The Board also affirmed the ALJ's ruling on the payment for the
surgery, deeming Dr. Vuskovich's testimony to be sufficient to
support a conclusion that the surgery was not work-related.
Both
rulings are the subject of this appeal by Whitt.
A claimant seeking an increase in compensation in a
reopening proceeding "must prove by competent evidence that a
significant change in occupational disability in fact exists, and
that the disability is the result of the injury or disease which
was the subject of the original award."
Peabody Coal Co. v.
Gossett, Ky., 819 S.W.2d 33, 36 (1991).
Whitt argues that the
ALJ substituted his own medical opinions instead of relying on
the medical evidence in the record when he stated that his
conclusion that Whitt's surgery was unrelated to her 1988 injury
was based upon "common sense and, to a lesser degree, the
testimony of Drs. Vuskovich and Goodman."
Given the fact that the ALJ has the exclusive authority
to determine the "quality, character, and substance of the
evidence," as well as the exclusive authority to determine which
conflicting medical evidence to believe, we find no error in the
ALJ's decision to accept Dr. Vuskovich's testimony and to give
little weight to Dr. Weinsweig's testimony.
Tipton, Ky., 862 S.W.2d 308, 309 (1993).
Square D Co. v.
The ALJ was not
obligated to give more weight to Dr. Weinsweig's testimony simply
because he was Whitt's attending physician.
App., 698 S.W.2d 321, 322 (1985).
4
Wells v. Morris, Ky.
Furthermore, the fact that
Dr. Vuskovich's testimony was not given weight by a different ALJ
in Whitt's original proceeding does not bind the ALJ in this
reopening proceeding.
The finder of fact (ALJ) may draw reasonable inferences
from the evidence.
Jackson v. General Refractories Co., Ky., 581
S.W.2d 10, 11 (1979).
We deem the ALJ's use of the term "common
sense" to be, at worst, a poor choice of words.
In short,
pursuant to Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992), the ALJ's decision that the 1988 work-related
injury and the 1995 surgery were unrelated should be affirmed.
Whitt also claims that the ALJ's ruling that Martin did
not have to pay for Whitt's surgery was erroneous and contrary to
a letter written by Martin's underwriter prior to the surgery.
That letter states in relevant part that "our office will provide
payment for the scheduled surgery . . . ."1
The letter, which
was written before the surgery and before any medical testimony
had been taken, cannot serve to substantiate the fact that the
1995 surgery was related to the 1988 injury.
The branch manager
who wrote the letter was likely not qualified to express an
opinion on whether the surgery was medically related to the 1988
injury sufficient to cause Martin to be bound to pay for the
surgery.
Workers' compensation awards "must be made upon the
basis of relevant medical testimony . . . ."
1
Royal Crown
The letter further states that the payments would be made
only "for any reasonable and necessary services relating to the
injury of 6-01-88." TR Vol. II, p. 217.
5
Bottling Co. v. Bedwell, Ky., 449 S.W.2d 767, 769 (1970).
The
Board's decision on this issue should not be reversed as it is
not so "flagrant[ly] [erroneous] as to cause gross injustice."
Western Baptist Hosp., supra, at 688.
The opinion of the Workers' Compensation Board is
affirmed.
ALL CONCUR.
6
BRIEF FOR APPELLANT:
BRIEF FOR MARTIN CO. COAL:
Michael S. Endicott
Paintsville, KY
Leo A. Marcum
Lowmansville, KY
BRIEF FOR SPECIAL FUND:
Judith K. Bartholomew
Louisville, KY
7
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.
