MANALAPAN MINING COMPANY V. RONNIE SHORT; SPECIAL FUND; HONORABLE DONALD G. SMITH, 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NOT TO BE PUBLISHED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-002383-WC
MANALAPAN MINING COMPANY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-97-000830, WC-96-079320 & WC-97-000823
RONNIE SHORT; SPECIAL FUND;
HONORABLE DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Manalapan Mining Company (MCC) appeals from an
opinion rendered by the Workers’ Compensation Board on August 21,
1998, which affirmed an opinion and award entered March 18, 1998,
by the Administrative Law Judge (ALJ) which held that Ronnie
Short (Short) is suffering from total occupational disability.
We affirm.
Before addressing the merits of MCC’s appeal, we will
address two procedural issues raised by Short.
First, Short
urges us to dismiss MCC’s appeal on the ground that its petition
for review was not filed within thirty days after entry of the
Board’s opinion as required by CR 76.25(2).
Our review of the
record on appeal shows that MCC’s petition for review was
tendered for filing on September 21, 1998, the thirtieth day
after entry of the Board’s opinion.
However, MCC failed to
tender the filing fee with the petition.
By order of this Court
entered September 28, 1998, MCC was notified of its deficiency
and given ten days to correct the deficiency.
The order further
provided that “[t]ime for any further steps will begin to run
from the date this pleading is filed[.]”
MCC tendered the
filing fee on October 2, 1998, which was within the additional
ten day period, and its petition was filed on the same day.
Because MCC was given an extra ten days by this Court to perfect
its filing and because the correction was made within the
additional ten days, we find MCC’s petition to be timely.
See
Smith v. Goodyear Tire and Rubber Co., Ky. App., 772 S.W.2d 640
(1989) (where claimant timely mailed petition for review and
complied with deficiency order for tender of filing fee,
dismissal was not proper).
Second, Short argues that dismissal is required due to MCC’s
non-compliance with Cr 76.25(4)(c), which provides:
The petition shall contain a clear and
concise statement of (i) the material facts,
and (ii) the questions of law involved, (iii)
the specific reason(s) why relief from the
Board’s decision should be granted by the
Court of Appeals.
We have examined MCC’s petition for review and find that, while
not broken down under specific headings, it does meet the
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requirements of CR 76.25(4)(c).
Again, under Smith substantial
compliance will suffice.
Turning now to the merits.
MCC contends that the Board’s
opinion finding Short to be totally disabled is not supported by
substantial evidence.
Having reviewed the parties’ arguments,
the record, and the relevant case law, we affirm the opinion of
the Board and adopt the following portion of the Board’s opinion
as our own:
...
Short has worked in the past a roof
bolter, laborer, and assembly line worker.
He was employed by Manalapan as an
underground miner. He testified that he did
nearly all the jobs in the mines except for
operating the miner. Short testified that he
was first injured on July 19, 1996 while
lifting a heavy rock. He stated that he felt
pain in his low back. He left work and was
seen at the emergency room at Harlan
Appalachian Regional Hospital. He missed no
other work as a result of this injury.
Short was again injured on August 28, 1996
when he was helping to move a pump. He felt
a severe pain in his low back. He finished
his shift that day but could not come into
work the next day. Short saw Dr. Ahmad, his
family physician, the following week. He has
not returned to work. Short testified that
he continues to have back pain that radiates
down his leg. He stated that he needs a cane
in order to walk. He relates that he is
depressed and has problems with his nerves.
Short did not feel that he could return to
any of the work he has done in the past. He
filed a claim as a result of his injuries and
also filed claims on the basis of coal
worker’s pneumoconiosis and hearing loss.
In support of his injury claim, Short
submitted records from Dr. Fazal Ahmad, his
family physician. Dr. Ahmad’s records
indicate that he first saw Short on July 19,
1996 in the emergency room at Harlan ARH.
X-rays indicated mild osteoporosis and
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degenerative osteoarthritis. Dr. Ahmad
suspected a possible lumbar disk herination.
He referred Short to Dr. James Bean, a
neurosurgeon. Dr. Ahmad’s records also
indicate an MRI, performed in October 1996,
revealed osteophytes at L4-L5 and S1 and
degenerative desks at L4-L5 and L5-S1 but no
evidence of herination. Dr. Ahmad diagnosed
chronic backache syndrome and possible
degenerative joint disease. He did not
believe Short could return to work, stating:
At the present time, I don’t
think he will be able to go back to
work because by verbal expression
and the way the patient moves and
by examination, he appears to be
incapacitated.
Short also submitted a report from Dr.
William Kennedy, an orthopedic surgeon, who
felt that Short suffered from degenerative
disk disease at L4 and L5 and a displaced
disk at L4. He assessed a 13% impairment
under the AMA guides. He recommended that
Short avoid any work that requires repeated
bending, stooping, squatting, heavy lifting,
or climbing. He restricted Short to lifting
to no more than 20 pounds occasionally or 7
pounds frequently. Dr. Kennedy felt Short
might benefit from epidural steroid
injections or possibly surgery.
Short also submitted a report from Dr.
Norman Davis, a psychologist, who diagnosed
him as suffering from a mood disorder with
depressed affect secondary to his back
injury. Dr. Davis assessed a 35% impairment
under the AMA guides. He felt Short’s
depression was interfering with his
concentration and cognition and would prevent
him from returning to the sort of work he has
performed in the past.
Manalapan submitted a report from Dr.
Robert P. Goodman, an orthopedic surgeon, who
diagnosed preexisting degenerative changes of
the lumbar spine with arousal. He felt that
Short had a 0-4% impairment under the AMA
guides and that one-half percent of this
impairment was due to arousal of preexisting
dormant conditions. Dr. Goodman stated that
Short’s 1996 injuries did not result in the
need for any restrictions on his activities,
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but his age and degenerative changes made it
advisable that he avoid lifting more than 75
pounds maximum.
Manalapan also submitted the report of Dr.
Daniel Primm, an orthopedic surgeon, whose
impression was of degenerative disk disease
of the lumbar spine with a history of
superimposed injuries and arousal as well as
de-conditioning. Dr. Primm did not feel that
Short suffered a significant back injury and
found no evidence of a significant back
condition. He believed Short could return to
light work immediately with occasional
lifting up to 25 pounds and frequent lifting
of 10 to 15 pounds. He felt that with some
exercise Short would be able to return to
medium level labor. Dr. Primm assessed a 5
to 7% impairment under the AMA guides and
attributed one-half of this to the arousal of
preexisting conditions.
Manalapan also submitted the report of Dr.
Andrew Cooley, a psychiatrist, who diagnosed
Short as suffering from an adjustment
disorder with depressed and anxious features
and who also felt that Short was attempting
to exaggerate his symptoms. Dr. Cooley
assessed an 8% impairment under the AMA
guides. However, from a psychiatric
standpoint, he felt Short could return to any
sort of work for which he had previous
training, education, or experience.
The Special Fund submitted the report of
Dr. James Bean, a neurosurgeon. Dr. Bean
stated that on his examination, Short had
intact dorsa flexion and planter flexion. He
found no evidence of sensory loss or reflect
abnormalities. He diagnosed Short as
suffering from a degenerative disk at L3-L4
and L5-S1 and felt he was engaging in symptom
magnification. He assessed a 5% impairment
under the AMA guidelines based upon CT scan
findings of degenerative disk disease.
...
This claim was initially assigned to
Arbitrator Vonnell Tingle who found that
Short was suffering a 30% occupational
disability as a result of his back injury but
no occupational disability as a result of his
hearing loss.
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...
Regarding Short’s injury claim, the ALJ
found him to be totally occupationally
disabled, relying primarily upon the
testimony of Drs. Kennedy, Primm, and Ahmad.
...
Manalapan now appeals from the ALJ’s
opinion, first arguing that the ALJ’s finding
of total occupational disability as a result
of the back injury is not supported by
substantial evidence. It asserts that the
fact that the Arbitrator found only a 30%
disability while the ALJ found a 100%
disability indicates that the ALJ’s opinion
is not supported by substantial evidence.
Manalapan points out that Dr. Ahmad based his
opinion that Short would to be able to return
to work upon “verbal expression and the way
the patient moves.” Manalapan asserts this
is not objective medical evidence. It
further argues that since Dr. Ahmad is only a
family doctor, greater weight should be given
to the opinion of the various specialists
testifying in this claim. Manalapan further
points out that Drs. Bean, Goodman, and Primm
all gave fairly low impairment ratings.
Finally, Manalapan points out that Dr.
Goodman felt that Short needs no restrictions
due to his injury and Dr. Primm was of the
opinion that Short could experience
significant improvement.
The claimant is a workers’ compensation
claim bears the burden of proving each of the
essential elements of his claim. Snawder v.
Stice, Ky. App.,, 576 S.W.2d 276 (1979).
Where the party does not bear the burden of
proof is unsuccessful before the ALJ, the
question on appeal is whether the ALJ’s
opinion 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 Manalapan 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
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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 find no merit in Manalapan’s argument
that the fact that the Arbitrator found Short
to be 30% occupationally disabled while the
ALJ found him tot be totally occupationally
disabled indicates that the ALJ’s finding is
unreasonable and without substantial basis in
fact. We point out that the discrepancy
between the occupational disability ratings
reached by the ALJ and the Arbitrator could
just as easily indicate that the Arbitrator’s
assessment was unreasonably low as it could
that the ALJ’s assessment was unreasonably
high. The discrepancy between the two
assessments signifies nothing. The question
to be answered is whether the ALJ’s finding
of total occupational disability is supported
by substantial evidence.
All of Short’s work experience has been in
heavy manual labor. Short testified that he
has constant pain in his low back and right
leg and that he often has to use a cane. Dr.
Ahmad felt that Short would be unable to
return to work. Dr. Kennedy felt that he
should avoid bending, stooping, and climbing
as well as lifting more than 20 pounds
maximum or 7 pounds frequently. Dr. Primm
felt that he should lift no more than 25
pounds maximum of 10 to 15 pounds frequently
although he felt that Short could have some
improvement. Dr. Davis felt that Short’s
-7-
depression interfered with his concentration
and cognition making it difficult for him to
perform the sort of work he has done in the
past. This is substantial evidence
supporting the ALJ’s conclusion.
We point out to Manalapan that there is no
requirement for the ALJ to give greater
weight to the testimony of a specialist over
that of a family doctor. See, Yocom v.
Emerson Electric, Ky. App., 584 S.W.2d 744
(1979); General Tire & Rubber Co. v. Rule,
Ky., 479 S.W.2d 629 (1972); Republic Steel
Corp. v. Justice, Ky., 464 S.W.2d 267 (1971);
Maynard v. Pond Creek Collieries, Ky., 184
S.W.2d 991 (1945). We therefore find no
error with the ALJ’s finding of total
occupational disability.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, RONNIE
SHORT:
Antony Saragas
Harland, KY
Sherry Brasher
Harlan, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Benjamin C. Johnson
Louisville, KY
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