DEPARTMENT OF TRANSPORTATION [TRANSPORTATION CABINET, COMMONWEALTH OF KENTUCKY] v. RALPH REYNOLDS; WORKERS' COMPENSATION BOARD; ROBERT WHITTAKER, Director of SPECIAL FUND; and DONALD G. SMITH, Administrative Law Judge
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RENDERED: March 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001101-WC
DEPARTMENT OF TRANSPORTATION
[TRANSPORTATION CABINET,
COMMONWEALTH OF KENTUCKY]
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-96-008955
v.
RALPH REYNOLDS;
WORKERS' COMPENSATION BOARD;
ROBERT WHITTAKER, Director of
SPECIAL FUND; and
DONALD G. SMITH,
Administrative Law Judge
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and KNOX, Judges.
HUDDLESTON,
Judge.
The
Department
of
Transportation
(DOT),
Transportation Cabinet, Commonwealth of Kentucky, seeks review of
a Workers' Compensation Board opinion that affirmed an Administra-
tive Law Judge's decision that Ralph Reynolds contracted silicosis
while
employed
by
DOT
workers’compensation
disability.
and
is
benefits
thus
based
entitled
upon
a
to
30%
an
award
of
occupational
We have reviewed the arguments advanced on appeal in
accordance with the standard set forth in Western Baptist Hospital
v. Kelly, Ky., 827 S.W.2d 685 (1992), and conclude that the Board's
decision must be affirmed.
Reynolds filed a claim for Retraining Incentive Benefits
(RIB) in January 1997 against DOT, his employer, alleging that he
had contracted an occupational disease as a result of 22 years'
exposure to various dusts.1
1997,
to
seek
permanent
He amended his claim on March 14,
disability
benefits
in
lieu
of
RIB.
Reynolds submitted medical reports from Drs. Emery Lane and Matt
Vuskovich.
DOT submitted the depositions of Drs. John E. Myers,
Emery Lane, Matt Vuskovich and Betty Joyce; a report from Dr. Betty
Joyce;
records
depositions
testified
hearing.
from
from
both
the
by
Douglas
Kentucky
Sutton
Retirement
deposition
and
and
Scott
live
at
System;
Fugate.
the
and
lay
Reynolds
administrative
After the ALJ issued his opinion and award,2 DOT and the
1
Reynolds' employment history includes work as a road
worker, light equipment operator, farmer, construction worker and
concrete mixer. He was exposed to sand dust and hay dust while
performing these jobs.
Reynolds was last exposed while in the
employment of DOT.
2
The ALJ awarded Reynolds workers' compensation benefits
based on 30% occupational disability as a result of contracting
silicosis due to work-related exposure to dust over a 30-year
period while employed by multiple employers. Liability for the
award was apportioned 25% to DOT and 75% to the Special Fund.
2
Special Fund petitioned the ALJ to reconsider, arguing that the
finding that Reynolds had contracted silicosis is not based on
reliable, credible and probative evidence.3
The petitions for
reconsideration were denied.
DOT appealed to the Workers' Compensation Board where its
contentions were the same as those made in this Court.
Because the
Board has adequately addressed DOT's allegations of error, we shall
borrow liberally from its opinion.
DOT's first argument is that the Board erred by relying
on
Dr.
Vuskovich's
testimony
because
it
lacks
a
"reasonable
evidentiary foundation" in that Dr. Vuskovich did not review all
the x-rays taken of Reynolds' lungs nor certain medical records.
Dr. Vuskovich interpreted a chest x-ray taken by Dr. Baker on
February 19, 1997, and his own x-ray of Reynolds taken on March 27,
1997, the day he evaluated Reynolds.
Dr. Vuskovich, a certified B
reader, stated that the films revealed Category 1/2 silicosis and
causally
exposure.
attributed,
in
part,
to
Reynolds'
work-related
dust
He performed pulmonary function studies demonstrating a
FVC of 66.6% and an FEV1 of 57.1% of predicted, indicative of Class
3
moderate
impairment.
An
electrocardiogram
was
abnormal,
indicating atrial fibrillation or abnormal cardiac rhythm (which
3
DOT and the Special Fund also petitioned the ALJ to review
his award of permanent partial disability to Reynolds for both 425
weeks and for the remainder of his life, should he live beyond his
life expectancy. DOT cited Ky. Rev. Stat. (KRS) 342.730 (1)(c) in
support of its contention that Reynolds should have been granted an
award for permanent partial disability for not more than 425 weeks.
The ALJ responded by limiting the award to a period of 425 weeks.
3
Reynolds controls by taking digitalis). Dr. Vuskovich acknowledged
that if a patient's cardiac rate gets out of control, congestive
heart failure may result, but he found no evidence of congestive
heart failure in Reynolds.
Dr. Vuskovich concluded that Reynolds
suffered a 30% permanent functional impairment under the AMA
guidelines and that he should not return to work.
DOT relies upon C. & K. Coal Co. v. Hall, Ky., 481 S.W.2d
265 (1972), where Kentucky's highest court determined that a physician's report was improperly used in apportioning an award where
the report referred only to one of two industrial accidents at
issue in the claim.
DOT's contention that it is necessary for
a
physician to review each and every medical record of a claimant
finds no support in the law.
Dr. Vuskovich personally examined
Reynolds, performed an EKG and pulmonary studies, and interpreted
his own x-rays of Reynolds' lungs.
A physician's conclusions may
be based upon first-hand knowledge, such as his own examination or
tests of the patient, upon information gleaned from the patient's
statements, or upon reports of examinations performed by others.
Osborne v. Pepsi-Cola, Ky., 816 S.W.2d 643, 646 (1991).
Dr. Vuskovich also testified that he did not detect
evidence of emphysema or lung cancer on either of the x-rays.
Drs.
Myers, Lane and Joyce testified that the FEV1 finding of 57.1% of
predicted, as determined by Dr. Vuskovich on pulmonary testing of
Reynolds, was consistent with emphysema or an obstructive lung
disease caused by Reynolds' 40-year history of smoking.
4
DOT
contends, therefore, that Dr. Vuskovich's testimony does not rise
to the level of "substantial evidence" since the other physicians'
testimony contradicts his testimony on the point of whether or not
Reynolds suffers from emphysema or an obstructive lung disease.
Dr. Myers interpreted two other x-rays of Reynolds, dated
February 22, 1996, and December 12, 1996; and he interpreted the xray dated February 19, 1997, one of the two x-rays Dr. Vuskovich
had relied upon for his diagnosis of Reynolds. Dr. Myers interpreted the earlier x-rays as negative for silicosis, revealing only a
0/1 category. Dr. Myers expressed an opinion that the February 19,
1997, x-ray produced a positive reading for silicosis because of
Reynolds' atrial fibrillation.
Because DOT was unsuccessful in persuading the ALJ that
Reynolds suffered no occupational disability from his exposure to
dust, the question we must answer is whether or not the ALJ's
decision
is
Collieries
supported
v.
Crum,
by
Ky.
substantial
App.,
673
evidence.
S.W.2d
735,
Wolf
736
Creek
(1984).
Substantial evidence has been defined as “evidence of substance and
relevant consequence having the fitness to induce conviction in the
minds of reasonable persons.”
Smyzer v. B. F. Goodrich Chem. Co.,
Ky., 474 S.W.2d 367, 369 (1971).
The probative value of evidence
is not determined by the number of doctors who testify.
McCloud v.
Beth-Elkhorn Corp., Ky., 514 S.W.2d 46, 47 (1974).
Issues of exposure, occupational disease and causation
are questions of fact.
The ALJ, as fact finder, has the sole
5
authority to determine the weight, credibility and substance of the
evidence and the inferences to be drawn from it.
Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985).
Whenever the
ALJ is confronted with conflicting evidence, he may choose what
portions of the evidence to believe. Caudill v. Maloney's Discount
Stores, Ky., 560 S.W.2d 15, 16 (1977).
DOT finally contends that since Dr. Myers' explanation as
to why the x-ray findings were inconsistent is the only evidence
touching upon this matter, it is uncontradicted. Contrary to DOT's
contention, the ALJ was not faced with uncontradicted testimony
from Dr. Myers concerning the interpretation of the x-ray dated
February 19, 1997.
Dr. Vuskovich testified both that he found no
evidence of congestive heart failure on the date of his examination
of Reynolds, and he detected no evidence of emphysema on either of
the x-rays he interpreted.
For the foregoing reasons, the decision of the Workers'
Compensation Board is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE,
RALPH REYNOLDS:
W. David Shearer, Jr.
Louisville, Kentucky
John Cornett
Jackson, Kentucky
BRIEF FOR APPELLEE,
SPECIAL FUND:
David W. Barr
Labor Cabinet
Louisville, Kentucky
6
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