BASS MAINTENANCE THE v. WORKERS' COMPENSATION BOARD BILL KELLETT; ROBERT L. WHITTAKER, Director THOMAS A. DOCKTER, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: June 25, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001043-WC
BASS MAINTENANCE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF THE
WORKERS’ COMPENSATION BOARD
NO. WC-96-079016
BILL KELLETT;
ROBERT L. WHITTAKER, Director
of Special Fund;
THOMAS A. DOCKTER, Administrative
Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge.
Bass Maintenance petitions for review of a
decision by the Workers’ Compensation Board affirming the ALJ’s
award of benefits to Bill Kellett for a February 8, 1996, workrelated injury for a duration of 520 weeks pursuant to Ky. Rev.
Stat. (KRS) 342.730(1)(d).
The ALJ found that Kellett was 75
percent occupationally disabled, but carved out 25 percent as preexisting active disability due to a 1974 work-related back injury
which resulted in surgery. Because Bass asserts on appeal the same
arguments presented to the Board, we borrow heavily from the
Board’s opinion.
Kellett, born in 1940, has a tenth grade education and
an expired license as a taxidermist.
ironworker
since
1968
and
continued
He had been working as an
such
employment
through
February 8, 1996, with Bass, for whom he had worked since May 1995.
On February 8, 1996, Kellett suffered a work-related injury while
moving steel mats.
Kellett immediately experienced pain from a
hernia and stated that he experienced pain in his back that
evening.
Kellett underwent surgery for the hernia on February 26,
1996, and never returned to work for Bass.
Kellett and Bass
stipulated before the ALJ that Kellett’s hernia was the result of
the work-related injury on February 8, 1996, from which he suffered
no permanent occupational disability.
Kellett’s prior medical history was significant in that
he had suffered a work-related back injury in 1974 for which he
underwent disc surgery in 1975.
Kellett received for that injury
a Workers’ Compensation settlement of approximately $33,000.00,
including future medicals, from his employer, but returned to work
afterwards as an ironworker.
Kellett also underwent coronary
artery surgery in 1991 and, although off work for about six weeks,
soon returned to work without restrictions.
In awarding Kellett benefits, the ALJ relied upon the
testimony of two neurosurgeons, Dr. Rex Arendall and Dr. John D.
Noonan, that Kellett suffers a 10 percent functional impairment as
a result of his back condition.
2
However, the ALJ noted that
Arendall’s and Noonan’s testimony about the restrictions each would
place
on
Kellett
indicated
that
he
suffered
from
a
greater
occupational disability than the 10 percent functional impairment
allotted him and that such restrictions render Kellett unable to
return to his occupation as an ironworker.1
The ALJ also relied on
testimony from Dr. Thomas Muehleman, a licensed clinical psychologist, that Kellett suffered from a learning disability since his
reading,
spelling
and
arithmetic
skills
were
not
at
a
level
commensurate with his intellectual abilities.
Although the ALJ determined that
Kellett has a substan-
tial work-related disability, he was not convinced that Kellett is
totally occupationally disabled.
The ALJ negated any finding of
total disability based partly on allegations that Kellett had
performed some taxidermy following his 1996 injury.
Evidence was
presented that Kellett had been the target of a sting operation by
two undercover officers who brought several animals to Kellett for
mounting.
Renzo Lewis Harper testified that he had approached
Kellett for instruction in taxidermy and that Kellett had only sat
in a chair reading magazines while directing him in taxidermy, but
had showed him how to perform some of the more intricate work.
Kellett
pled
activities.2
guilty
to
several
charges
in
relation
to
these
The ALJ stated that although Kellett maintained he
1
Both surgeons would prohibit repetitive bending, stooping
or lifting, standing or sitting in one position for prolonged
periods of time. Dr. Noonan placed a maximum lifting restriction
of 20 to 25 pounds with no frequent lifting over 10 pounds.
2
These included failure to maintain records or properly
(continued...)
3
did not perform any of the taxidermy work, as asserted by the
testimony of his “helper,” “the vast array of animals kept in his
shop, den and freezer belie his assertion of innocence.”
Thus, the ALJ apportioned the extent of occupational
disability attributable to the 1996 injury as 25 percent, payments
for which Bass is responsible.
The remaining 25 percent occupa-
tional disability was established as the result of the arousal of
previously dormant underlying conditions into a state of disabling
reality, payments for which the Special Fund is responsible.
Bass
appealed the ALJ’s award to the Board, asserting the same arguments
to the Board as to this court.
Bass first contends that Kellett did not suffer an injury
as defined by KRS 342.0011(1), which provides in relevant part
that: “‘Injury’ means any work-related harmful change in the human
organism, arising out of and in the course of employment . . . .”
Dr. Arendall testified that Kellett suffered from a low back sprain
which resulted from the February 1996 injury superimposed on
extensive spinal canal stenosis.
suffering
from
a
combination
Dr. Noonan diagnosed Kellett as
of
pre-existing
spondylosis
and
spondylolisthesis. The medical evidence causally related Kellett’s
condition
to
the
February
1996
work-related
injury.
Since
substantial evidence was presented supporting the finding that
Kellett suffered an injury, as defined under the Act, this Court
2
(...continued)
identify illegally taken wildlife prior to mounting; taking or
hunting wildlife without a license or stamp; failure to maintain
and send monthly reports to the Department of Fish and Wildlife;
and possession of protected wildlife or a raw fur out of season.
4
may not rule otherwise.
Smyzer v. Goodrich Chemical Company, Ky.,
474 S.W.2d 367 (1971).
Bass also contends that there was no evidence supporting
the finding that Kellett had an increase in occupational disability
as a result of the alleged injury in February 1996.
The medical
evidence, as stated above, is evidence of substance which supports
the ALJ’s determination of occupational disability in Kellett’s
case.
If there is any evidence of substance to support the finder
of fact’s determination of occupational disability, this Court must
sustain it.
Millers Lane Concrete Co., Inc. v. Dennis, Ky. App.,
599 S.W.2d 464, 465 (1980).
The ALJ is given a broad discretion in
translating functional impairment into occupational disability.
Newberg v. Davis, Ky., 841 S.W.2d 164 (1992).
While medical evidence may be probative on the issue of
occupational disability, it is not determinative, and it is the
ALJ’s function to look at the totality of circumstances and all the
factors enumerated in KRS 342.0011(11) and Osborne v. Johnson, 432
S.W.2d 800 (1968), in making a determination of occupational
disability.
argues
that
Such factors were considered in this case.
there
was
no
increase
in
Kellett’s
Bass also
occupational
disability because the medically-imposed restrictions would, in
substantial measure, have been the same following the 1974 injury
and surgery as that currently imposed as a result of the February
1996 injury.
evidence
The ALJ was not obligated to ignore the reality of
demonstrating
that
Kellett
had
performed
iron
work
activity for many years following the first injury and surgery to
5
his back.
Bass asserts that the ALJ was prohibited from consider-
ing the fact that Kellett had worked prior to the February 1996
injury as evidence that he suffered an increase in occupational
disability from that date, citing Wells v. Bunch, Ky., 692 S.W.2d
806 (1985).
Wells does not command that the ALJ decline to
consider such evidence, but only holds that the fact that a
claimant is employed prior to a compensable injury does not mandate
a finding that the claimant suffered from no active disability
prior to the injury.
Id. at 808.
Bass’ primary thrust on appeal is that because the ALJ’s
finding of disability was based on Kellett’s subjective presentations to the physicians and his testimony, it was not based on
substantial evidence because Kellett is not credible as a matter of
law.
Bass is asserting a falsum in uno, falsus in omnibus
argument.
See Black’s Law Dictionary, 603 (6th ed. 1990).
did not solely rely upon Kellett’s statements.
Arendall
based
their
medical
opinions
upon
The ALJ
Drs. Noonan and
objective
medical
evidence.
The medical evidence clearly supported that portion of
Kellett’s
testimony
regarding
his
occupational
capabilities,
particularly as they relate to the future opportunity to engage in
strenuous manual labor such as he had performed as an iron worker
for most of his working career.
Moreover, where evidence is
conflicting on the issue of occupational disability, the ALJ is
given the sole responsibility to determine credibility and the
weight to be given to the evidence, including evidence from the
same witness.
Caudill v. Maloney’s Discount Stores, Ky., 560
6
S.W.2d 15 (1977).
Because there was substantial evidence to
support the ALJ’s finding that Kellett is occupationally disabled,
Smyzer v. B. F. Goodrich Chemical Company, Ky., 474 S.W.2d 367
(1971), in accordance with the applicable standard of review, we
affirm the Board’s decision to affirm the ALJ’s order.
Western
Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685 (1992).
Finally,
we
decline
Kellett’s
against Bass, pursuant to KRS 342.310.
request
for
sanctions
Although we view Bass’
appeal as not compelling considering that the Board adequately
addressed its arguments, we are unable to conclude that Bass did
not act in good faith.
The Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE KELLETT:
Grant S. Roark
BROWN, TODD & HEYBURN
Louisville, Kentucky
Craig Housman
HOUSMAN & SPARKS
Paducah, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND:
David W. Barr
LABOR CABINET
Louisville, Kentucky
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