CORHART REFRACTORIES COMPANY and CIGNA INSURANCE COMPANIES V. SLAYTON R. CONSTANT, DECEASED; VIRGINIA CONSTANT, DECEASED WIDOW; and PATRICIA CONSTANT, Executrix of the Estate of Virginia Constant and SPECIAL FUND; LOUISVILLE EMERGENCY MEDICAL SERVICE; and LIFETRON PARTNERS and WORKERS' COMPENSATION BOARD
Annotate this Case
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RENDERED: December 4, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000746-WC and
NO. 1998-CA-000976-WC
CORHART REFRACTORIES COMPANY and
CIGNA INSURANCE COMPANIES
v.
APPELLANTS/CROSS-APPELLEES
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-017775
SLAYTON R. CONSTANT, DECEASED;
VIRGINIA CONSTANT, DECEASED WIDOW;
and PATRICIA CONSTANT, Executrix
of the Estate of Virginia Constant
APPELLEES/CROSS-APPELLANTS
and
SPECIAL FUND; LOUISVILLE EMERGENCY
MEDICAL SERVICE; and LIFETRON PARTNERS
APPELLEES
and
WORKERS’ COMPENSATION BOARD
APPELLEE/CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: EMBERTON, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Corhart Refractories Company (Corhart) and
Cigna Insurance Companies petition for review, and the estate of
Virginia Constant, deceased widow of Slayton Constant (Constant),
cross-petitions from a decision of the Worker’s Compensation
Board.
The procedural history bears explaining for an
understanding of the case’s current posture.
Constant worked as a welder for 34 years.
His last
employer was Corhart, for whom he last worked on February 22,
1992.
He died on June 17, 1993.
Virginia Constant filed a claim
for occupational disease benefits on behalf of Slayton, along
with the medical reports of Drs. William H. Anderson and
Christopher B. Howerton.
In the July 18, 1995 Opinion, Award and Order of the
administrative law judge (ALJ), Slayton was found totally
disabled by work-related siderosis.
The ALJ relied upon “the
unequivocal testimony presented by Dr. Anderson in which he
stated that the changes on the Plaintiff’s x-ray were present to
the extent of Category 2/2 and were ‘due to his working
conditions’ and would be classified as ‘a mixed pneumoconiosis
due to siderosis and silicosis.’”
The ALJ also awarded survivor
benefits to Constant’s widow for the period of Constant’s life
expectancy.
Corhart appealed to the Board, arguing that the ALJ
misinterpreted evidence, that no evidence supported a finding
that Constant’s death was work-related or that he had a disabling
work-related disease, and that he failed to file his claim with
two medical reports which met the requirements of KRS 342.316.
Virginia cross-appealed, contending that Corhart was estopped
from denying compensability because it had made an offer of
settlement.
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The Board found no error in the ALJ’s interpretation of
the testimony of Dr. Howerton and Dr. Anderson.
The Board ruled
that substantial evidence supported the conclusion that Constant
was totally disabled from a work-related disease.
The Board also
determined that the two medical reports filed by Constant met the
requirements of KRS 342.316.
However, the Board remanded the
matter to the ALJ for a finding as to whether Constant’s death
was due to his occupational disease, as he made no such finding
in his Opinion, Award and Order.
Virginia’s cross-appeal was
rendered moot by the upholding of the award of benefits, and
therefore, not addressed.
Corhart petitioned to this Court, but
we dismissed the petition as having been taken from a non-final
decision.
Upon remand to the ALJ, the ALJ found that Constant’s
death was directly and causally related to his siderosis.
He
relied upon the opinions of Drs. Nichols and Anderson to reach
this conclusion.
Thus, death benefits were awarded in accordance
with KRS 342.750, as were burial expenses according to KRS
342.720.
Corhart appealed and Constant cross-appealed to the Board.
Each made the same arguments as were brought before the Board in
the initial appeal.
The Board determined that the law of the
case precluded their re-deciding all the issues except whether
the finding of Constant’s death’s being work related was
supported by substantial evidence.
The Board reversed on this
issue, finding that Constant had made a judicial admission
against interest when she stated in the conclusion of her brief:
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The single issue before this Board is
whether or not Slayton R. Constant died as a
result of the occupational disease which
totally disabled him. This issue affects
only the award of burial expenses inasmuch as
the benefits payable to the widow are
identical whether paid under KRS 342.730(3)
or KRS 342.750, while burial benefits are
available only if the death of the employee
is work-related.
Admittedly, the proof in this case does
not support the award of burial expenses.
Accordingly, the Board remanded the matter to the ALJ for an
order dismissing Constant’s claim for burial expenses.
Corhart now argues before this Court that Constant
failed to provide two medical reports in support of his claim as
required by KRS 342.316; that the ALJ misinterpreted Dr.
Anderson’s opinion; and that the finding of disability as a
result of an occupational disease was not supported by
substantial evidence.
Constant’s cross-petition raises the
question of whether Corhart is estopped from denying the validity
of the claim.
Having reviewed the record and the law, we affirm.
Because Constant’s claim was for siderosis, and not
coal workers’ pneumoconiosis, KRS 342.316 governs the
requirements of the two medical reports to be filed with the
claim.
KRS 342.316(2)(b)1.a. states in relevant part:
The application shall also include at least
two (2) written medical reports supporting
his claim. These medical reports shall be
made on the basis of comprehensive clinical
examinations performed in accordance with
accepted medical standards and shall contain
full and complete statements of all
examinations performed and the results
thereof. The reports shall be made by dulylicensed physicians.
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Subsection 1.c. requires that each examination for an
occupational pneumoconiosis claim, other than coal workers’
pneumoconiosis, shall include x-ray examinations and appropriate
pulmonary function tests.
803 KAR 25:011 § 6(1)(d) states that
two written medical reports supporting the claim, in compliance
with KRS 342.316(2)(b)1., shall be attached to the application
for adjustment of an occupational disease claim.
Corhart maintains that the statute requires two reports
which contain findings within a reasonable medical probability
that the claimant has a work-related disease which results in
impairment.
It believes the report of Dr. Howerton was not
sufficient to support a prima facie case for benefits, and thus
the claim should have been dismissed on the same grounds as the
claim in Scorpio Coal Co. v. Harmon, Ky., 864 S.W.2d 882 (1993).
Like the Board, we do not find Harmon dispositive
because it specifically dealt with the interpretation of KRS
342.732(1)(a), KRS 342.316(2)(d)1., and 803 KAR 25.011 §§ 3(2)
and 7 in a coal workers’ pneumoconiosis case.
The statute and
regulation involved in this case merely require that the two
medical reports support the claim.
Dr. Howerton based his opinion on an x-ray, a pulmonary
function study, a blood gas study, accurate smoking and
employment histories, symptoms, and a physical examination.
He
diagnosed severe chronic obstructive pulmonary disease (COPD).
He felt this was probably predominantly emphysema but added that
with Constant’s occupational history, it was possible that his
work could have contributed to the condition, along with the
-5-
cigarette smoking.
Based on the x-ray, he found mild pulmonary
interstitial fibrosis, which he opined could be due to silicosis
from Constant’s thirty years in a foundry.
Finally, he averred
that the welder was totally disabled.
We believe that the ALJ could have inferred from this
report that the COPD was caused, at least in part, by Constant’s
lengthy welding history, that the COPD was siderosis or
silicosis, and thus, that Constant was totally disabled by that
condition.
This question would go to the weight of the evidence
and be for the ALJ to decide.
The report certainly supports the
claim, and this is all the statute requires.
Consequently, we
decline Corhart’s invitation to interpret the statute as strictly
as it proposes.
Corhart next argues that the ALJ misinterpreted Dr.
Anderson’s report when he stated that Dr. Anderson opined that
Constant’s condition was “totally work related.”
Corhart
believes the error is significant enough to require reversal
because the ALJ’s entire decision is based on Dr. Anderson’s
opinion, and there is no evidence that Constant suffered any
work-related impairment.
We disagree.
Dr. Anderson found category 2/2 mixed pneumoconiosis due to
siderosis and silicosis.
In summarizing Dr. Anderson’s opinion,
the ALJ stated that Dr. Anderson felt the condition “was totally
work-related.”
In determining that Constant’s siderosis was
work-related, the ALJ stated:
[T]his Administrative Law Judge relies upon
the unequivocal testimony presented by Dr.
Anderson in which he stated that the changes
on the Plaintiff’s x-ray were present to the
-6-
extent of Category 2/2 and were “due to his
working conditions” and would be classified
as “a mixed pneumoconiosis due to siderosis
and silicosis.” Dr. Anderson was given a
long and complete history of all of the
Plaintiff’s years of exposure to welding
fumes while working initially for Arvin
Industries as an arc welder and his work for
the Defendant-Employer for approximately 35
years. This long detailed history is given
on the first page of Dr. Anderson’s report.
This Administrative Law Judge has reviewed
and/or decided literally thousands of
occupational disease claims and has always
found Dr. Anderson to be one of the most
credible pulmonary specialists who ever
testified in such a claim. This position of
persuasion is found in the within claim, as
well, and this Administrative Law Judge
adopts Dr. Anderson’s diagnosis and opinion.
In fact, Dr. Anderson diagnosed category 2/2
pneumoconiosis and felt that the x-ray changes were most likely
due to a combination of siderosis and silicosis.
He expressed
that all of the changes seen by x-ray were due to the welder’s
working conditions.
In his opinion, all the agents to which
Constant had been exposed as a welder were capable of causing the
pulmonary problems he had.
similar problems.
He also stated that smoking can cause
He further averred that he could not
rationally give an opinion as to how much of Constant’s condition
was due to cigarette smoking and how much was due to exposure
experienced during welding.
Dr. Anderson also thought Constant
was totally disabled.
A party is entitled to have a claim decided on the
basis of correct findings of fact.
Service, Ky., 694 S.W.2d 684 (1985).
See Cook v. Paducah Recapping
However, we do not believe
that the ALJ’s decision is based on an erroneous understanding of
Dr. Anderson’s testimony.
The facts stated in the above-quoted
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paragraph are not inaccurate and support the ALJ’s findings of
work relatedness and total disability.
Ky., 708 S.W.2d 641 (1986).
Special Fund v. Francis,
Therefore, the Board was correct in
not reversing the ALJ on this issue.
Finally, Corhart argues that there is no medical
evidence of probative value to support the claim that Constant
had an occupational disease which caused him any disability.
Corhart maintains that the only evidence supporting the claim was
stated in terms of possibilities.
On the contrary, both the reports of Drs. Howerton and
Anderson constitute substantial evidence supporting a finding of
a disabling occupational disease.
Both felt Constant was totally
disabled, and Dr. Anderson opined that the siderosis and
silicosis were to some extent responsible for that condition.
Dr. Howerton’s opinion can be read to support Dr. Anderson’s.
That the ALJ chose to rely upon Dr. Anderson’s report was well
within his authority, and neither the Board nor this Court can
substitute its judgment therefor.
The argument on behalf of Constant and his widow is
that Corhart should be estopped from denying the compensability
of the claim because a third-party administrator of Corhart
provided Constant with a letter stating that the company was
willing to accept the claim.
It later made a settlement offer to
Constant, which he accepted, but which obviously later fell
through.
Because we have affirmed the award of benefits,
however, this issue is moot.
Accordingly, the decision of the Board is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANTS/CROSSAPPELLEES, CORHART
REFRACTORIES COMPANY AND CIGNA
INSURANCE COMPANIES:
BRIEF FOR APPELLEES/CROSSAPPELLANTS, SLAYTON R.
CONSTANT, DECEASED; VIRGINIA
CONSTANT, DECEASED WIDOW; AND
PATRICIA CONSTANT, EXECUTRIX
OF THE ESTATE OF VIRGINIA
CONSTANT:
Robert C. Ewald
Louisville, Kentucky
Jack E. Ruck
Louisville, Kentucky
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel D. Zakem
Louisville, Kentucky
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