EQUITABLE BAG COMPANY v. STANLEY GOINS; SPECIAL FUND; HON. MARK C. WEBSTER, Administrative Law Judge; WORKERS' COMPENSATION BOARD
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RENDERED: March 26, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001461-WC
EQUITABLE BAG COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 96-074218
v.
STANLEY GOINS; SPECIAL FUND; HON. MARK C. WEBSTER,
Administrative Law Judge; WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and DYCHE, Judges.
COMBS, JUDGE:
This is a petition for review of an opinion of the
Worker's Compensation Board.
The decision affirmed an
Administrative Law Judge's determination that Stanley Goins was
entitled to total occupational disability benefits as a result of
a work-related hip injury.
Having reviewed the arguments, the
record, and the applicable law, we note that the opinion of the
Workers' Compensation Board appropriately addressed the questions
presented to this court by the appellant, Equitable Bag Company.
Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685 (1992).
result, we adopt that opinion as follows:
As a
Petitioner, Equitable Bag Company ("Equitable"),
appeals from an opinion and award rendered by Hon. Mark
C. Webster, Administrative Law Judge ("ALJ"), awarding
the respondent, Stanley Goins ("Goins"), benefits for a
total occupational disability as a result of a workrelated hip injury. On appeal, Equitable contends the
ALJ inappropriately considered Goins' preexisting,
active, nonwork-related occupational disability in
determining whether he was totally occupationally
disabled. Equitable further contends the evidence does
not support a finding that Goins is totally
occupationally disabled without regard to his
preexisting mental retardation.
Goins was employed by Equitable as an unskilled
laborer. His job involved loading used paint pans into
a washing machine and unloading them when they were
clean. Goins began working for Equitable in 1953.
During the first several years of his work there, he
loaded trucks which required some heavy lifting.
According to Dr. Larkin, Goins'[s] treating physician,
he has some learning disability which require[s] him to
work in a very structured work environment. Goins has
a limited education, having only completed the sixth
grade at age 16.
Goins was injured on October 3, 1996 in a slip-and-fall
accident. He fractured his hip and also injured his
left arm. Surgery was performed on the hip by Dr.
Larkin on the same day. Goins received physical
therapy and vocational rehabilitation following the
surgery. He returned to work on January 13, 1997 and
worked until January 24, 1997. On January 22, 1997,
Goins notified Equitable of his intention to resign.
Goins'[s] sister requested information regarding early
retirement for Goins on January 17, 1997.
Goins now lives with his sister, Anna Hutchison, and
has done so for the past six years. He had been unable
to obtain a driver's license and walked to work for
many years. He testified he now has trouble keeping
his balance. He can no longer walk as far as he could.
He states he cannot mow the grass or take out the
garbage in a regular size trash can.
Goins submitted the testimony of Dr. John Schmitz, an
orthopedic surgeon, who examined him on April 22, 1997.
At that time, Dr. Schmitz stated that Goins had a mild
antalgic gait, but he denied having any pain. Dr.
Schmitz found Goins['s] left leg to be one-half to one
centimeter shorter than the right. Hip flexion on the
left was normal, but extension was about 50 percent of
normal. Dr. Schmitz also noted atrophy of the left
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thigh and calf. X-rays of the left hip indicated a
healed fracture. X-rays of the left wrist were fairly
normal. Dr. Schmitz assessed a 20 percent impairment
rating under the AMA guides due to his hip problems.
He recommended that Goins avoid squatting, climbing,
kneeling, twisting, and walking for more than three to
five minutes at a time. He felt there would be only
minimal limitations due to Goins'[s] left wrist injury.
Equitable submitted testimony from Dr. John Larkin,
Goins'[s] treating orthopedic surgeon, who performed an
open reduction and internal fixation of a displaced
intertrochanteric fracture of the left hip on October
3, 1996. Dr. Larkin performed a closed reduction of a
left wrist fracture. Goins was later transferred to
Health South Rehabilitation and discharged on October
28, 1996. Dr. Larkin assessed a 9 percent impairment
rating under the AMA guides. He noted that Goins was
"mentally compromised" and had worked in a protected
environment for Equitable. Eventually, Dr. Larkin
released Goins to return to his previous work after a
transition period of light duty. He referred Goins for
a functional capacity evaluation, which indicated that
Goins could stand for 30 minutes, could safely lift up
to 20 pounds, and could walk without a cane or walker.
Dr. Larkin felt that Goins should perform work that
gave him some flexibility in standing or sitting with
no continuous standing. As of February 4, 1997, Dr.
Larkin felt that Goins could return to his previous
work from an anatomical point of view but not from a
mental point of view.
Testimony was also presented from Al White, the general
manager of printing at Equitable. He stated that when
Goins returned to work in January 1997, he really did
not do very much. He stated that Goins had talked
about taking early retirement as early as August 1996.
White stated that Goins'[s] previous work washing paint
pans was not very strenuous because he only had to move
the pans at waist level and could sit or move about
while he was waiting for the pans to dry. White
testified that it was his understanding that Goins
would only work for a couple of weeks and then retire.
Nicole Carter, the human resources specialist for
Equitable, stated that she spoke to Goins and his
sister about early retirement in July 1996. She stated
that she mailed Goins'[s] pension information at that
time. Carter stated that Goins returned to work in
1997 in order to receive his 1997 vacation benefits and
then apply for early retirement.
Testimony was also presented from Anna Hutchison,
Goins'[s] sister, who testified that Goins has learning
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difficulties and is unable to make decisions. She
stated she tried to help him plan his retirement. She
admitted she requested pension information from
Equitable but denied ever indicating to anyone prior to
the injury that Goins definitely planned to retire.
Hutchison testified that prior to the injury, she and
Goins had requested information regarding the amount of
pension benefits he would be able to receive if he took
early retirement in 1997. She stated that after Goins
found out how much he would receive, he decided to
continue working.
After reviewing the evidence, the ALJ determined the
extent and duration of Goins'[s] disability as follows:
Based on Goins'[s] age, the severity of his hip
injury, Dr. Larkin's surgery and impairment, and,
most significantly, Goins'[s] low intelligence and
need for a structured work environment, I find
that Goins is permanently and totally disabled.
KRS 342.0011. Osborne v. Johnson, Ky., 432 S.W.2d
800 (1968). KRS 342.730(1)(a).
The ALJ also stated:
I admit his old job was easy, self-paced, and
allowed frequent position changes, but I find
Goins no longer has the ability to walk to work,
walk any distance in the plant, stand long enough
to do his washing job, or work a full day.
The ALJ therefore awarded Goins benefits for a
permanent total occupational disability.
Equitable now appeals from the ALJ's opinion arguing
that it was error for the ALJ to consider Goins'[s]
mental retardation in determining whether he is totally
occupationally disabled. It argues that his mental
retardation represents a preexisting, active
occupational disability and points out that the current
version of KRS 342.730 provides that a nonwork-related
active disability cannot be combined with a workrelated disability for the purposes of determining
whether the claimant is totally occupationally
disabled. Equitable further contends that the ALJ's
finding that Goins is totally occupationally disabled
is not supported by the evidence, even if his mental
limitations are considered.
The claimant in a workers' compensation case must prove
each of the essential elements of his claim. Snawder
v. Stice, Ky. App., 576 S.W.2d 276 (1979). Where the
party who does not bear the burden of proof in
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unsuccessful before the ALJ, the question on appeal is
whether the ALJ's decision is supported by substantial
evidence. Wolf Creek Collieries v. Crum, Ky. App., 673
S.W.2d 735 (1984). Substantial evidence is defined as
evidence of relevant consequence having the fitness to
induce conviction in the minds of reasonable persons.
Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367
(1971). It is not enough for Equitable to show that
there is merely some evidence which would support a
contrary conclusion. McCloud v. Beth-Elkhorn Corp.,
Ky., 514 S.W.2d 46 (1974). As long as the ALJ's
decision is supported by any evidence of substance, we
must affirm. Special Fund v. Francis, Ky., 708 S.W.2d
641 (1986).
The ALJ, as fact[-]finder, has the sole authority to
determine the weight, credibility, substance, and
inferences to be drawn from the evidence. Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
Where the evidence is conflicting, the ALJ may choose
whom and what to believe. Pruitt v. Bugg Brothers,
Ky., 547 S.W.2d 123 (1977). The ALJ may choose to
believe parts of the evidence and disbelieve other
parts, even when it comes from the same witness or the
same party's total proof. Caudill v. Maloney's
Discount Stores, Ky., 560 S.W.2d 15 (1977).
Furthermore, this Board may not substitute its judgment
for that of the ALJ in matters involving the weight to
be afforded the evidence in questions of fact. KRS
342.285(2).
We believe there is substantial evidence to support the
ALJ's finding that when Goins'[s] mental retardation is
taken into account, along with his physical
restrictions, he is totally occupationally disabled.
It is uncontradicted that Goins requires a very
structured work environment. It is also apparent that
Goins has extremely limited work experience and
education. Dr. Schmitz felt that Goins should avoid
squatting, climbing, kneeling, twisting, and walking
for more than three to five minutes at a time. Goins
testified that he had to stand constantly while
performing his job and so had to frequently bend and
lift things.
Equitable has argued that Goins'[s] testimony is not
credible since it has been noted by both his own
attorney and his sister that he tends to agree with any
statement put to him. However, as we noted above,
questions regarding the weight and credibility to be
afforded the evidence are for the ALJ and not for this
Board. Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985); KRS 342.285(2). Given the testimony
of Dr. Schmitz regarding Goins'[s] physical
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capabilities, of Dr. Larkin regarding his need for a
structured work environment, and of Goins regarding his
job requirements, there is substantial evidence
supporting a finding that Goins is totally
occupationally disabled.
We do not believe that in this case Goins'[s]
preexisting mental retardation represents a preexisting
active occupational disability. The facts of this case
are very similar to those found in Commonwealth
Transportation Cabinet v. Blackburn, Ky., 890 S.W.2d
627 (1994). In that case, a claimant with mild mental
retardation had worked his entire adult life for the
Kentucky Transportation Cabinet. The evidence
indicated that regardless of the claimant's injuries,
his occupational opportunities were limited because of
his borderline intelligence. After considering the
claimant's physical limitations and his limited
intellect, the ALJ concluded that he was totally
occupationally disabled. There was no apportionment of
preexisting active occupational disability due to the
claimant's limited intellectual capacity. The
Transportation Cabinet appealed arguing that the
claimant's mental retardation should be considered a
preexisting active disability and therefore excluded as
noncompensable. In its opinion, the Kentucky Supreme
Court stated:
In KRS 342.0011, the legislature has defined
occupational disability as:
a decrease of wage earning capacity due to
injury or loss of ability to compete to
obtain the kind of work the employee is
customarily able to do, in the area where he
lives, taking into consideration his age,
occupation, education, effect upon employee's
general health of continuing in the kind of
work he is customarily able to do, and
impairment or disfigurement.
As is apparent, KRS 342.0011 requires an
individualized determination of a worker's
occupational disability as a result of a workrelated injury. KRS 342.0011 does not establish
as uniform benchmark of occupational ability
against which injured workers are measured. It
does not penalize workers who, before they are
injured, have limited occupational ability due to
their innate intellectual capacity or their degree
of education or training. Instead, the focus of
KRS 342.0011 is on determining the impact of the
impairment or disfigurement caused by a workrelated injury on the particular worker's ability
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to earn an income, in other words, on determining
what that particular worker has lost as a result
of the injury.
In the instant case, the ALJ determined that
claimant was employed in a work setting that was
consistent with his limited capabilities, a
finding that has not been challenged. Therefore,
his income from that employment and the skills
required in that employment fairly can be viewed
as taking into account his limited intellectual
capacity and as reflecting his occupational
ability before the work-related injury. This
factual situation is distinguishable from that
addressed in Wells v. Bunch, supra, and Griffin v.
Booth Memorial Hospital, supra. The ALJ
determined that it was the physical effects of the
1986 injury that prevented claimant from returning
to his former employment or from engaging in other
employment for which he was qualified. Under
those circumstances, the award of total
occupational disability benefits, without an
exclusion for prior, active disability, was
proper.
Id. at 628.
In the instant case, the ALJ has found that Goins was
employed in a work setting consistent with his limited
capabilities. The ALJ also determined that the effects
of Goins'[s] injury prevented him from returning to his
former employment or from engaging in other employment
for which he was qualified. We therefore believe that
an award of total occupational disability without
exclusion for prior active disability was proper.
Accordingly, the decision of the ALJ is hereby AFFIRMED
and this appeal DISMISSED.
The decision of the Worker's Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE GOINS:
Otto Daniel Wolff
Covington, KY
Gregory N. Schabell
Florence, KY
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