CONSOL OF KENTUCKY, INC. v. WILLIAM LINDON; ROBERT L. WHITTAKER, ACTING DIRECTOR OF SPECIAL FUND; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: October 1, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000302-WC
CONSOL OF KENTUCKY, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 95-WC-37447 & 94-WC-04738
WILLIAM LINDON;
ROBERT L. WHITTAKER,
ACTING DIRECTOR OF SPECIAL FUND;
HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
Consol of Kentucky, Inc. (Consol) appeals from
an opinion of the Workers’ Compensation Board (the Board) entered
January 15, 1999, which affirmed an order of the Administrative
Law Judge (ALJ) entered August 3, 1998, finding William Lindon
(Lindon) to be totally disabled.
We affirm.
Linden sustained an injury to his cervical spine on
December 12, 1993 while working for Consol.
He underwent an
anterior cervical discectomy and fusion at C5-6 and decompression
of the spinal cord in February 1994.
Linden has never returned
to work.
In August 1994, Lindon filed an application for
adjustment of claim alleging not only the cervical spine injury,
but also carpal tunnel syndrome (CTS) and hearing loss.
Because
the medical evidence filed in this case is voluminous and because
all parties are familiar with what was filed, we see no need to
further add to the record by summarizing it again in its
entirety.
However, we will develop further facts where necessary
to provide a clear understanding of our ruling in this case.
On July 29, 1995, ALJ Thomas Dockter entered the
initial opinion and award in this case.
ALJ Dockter assigned an
occupational disability rating of 50% arising from Lindon’s
cervical injury only, and found him to be an “excellent
candidate” for vocational rehabilitation.
The award was
apportioned equally between Consol and the Special Fund.
ALJ
Dockter further found that based on the medical evidence
presented, Lindon’s CTS was not causally related to his injury.
In an opinion rendered January 26, 1996, the Board
affirmed ALJ Dockter’s opinion.
In regard to Lindon’s CTS claim,
the Board found that the only issue presented to the ALJ was
whether the CTS was related to the 1993 accident as no separate
cumulative trauma or disease claim was filed for CTS.
Following denial of Lindon’s motion for reconsideration
and while Lindon’s appeal from ALJ Dockter’s opinion was pending
before the Board, Lindon filed a new application for adjustment
of claim on September 19, 1995.
In this application, Lindon
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alleged entitlement to benefits for CTS due to repetitive use and
constant bending and flexing of his hands and wrists, arousal of
a dormant pre-existing condition in his lower back, and
depression.
On February 15, 1996, Lindon filed a motion to reopen
his previous claim due to (1) mistake in the decision that he
does not have CTS; (2) a worsening of his physical and mental
condition, which included overall worsening as well as severe
depression and bladder/urinary problems.
On April 3, 1996, the
ALJ entered an order which denied the motion in part, stating:
the Court finds that the issues regarding the
Plaintiff’s carpal tunnel syndrome has
previously been decided by Judge Dockter by
Opinion and award and affirmed by the
Worker’s Compensation Board[.]
Lindon’s other claims were allowed to proceed.
Lindon testified in his deposition that he began having
bladder problems immediately after the 1994 surgery.
Lindon
related that he has difficulty urinating, and that he has to sit
in order to urinate.
times a day.
He also has to catheterize himself several
Lindon stated that he informed Consol of his
bladder problems in a letter dated September 25, 1995.
He
testified that he notified Consol about his problem as soon as he
started having problems and his doctor told him it was related to
his injury.
The medical evidence consistently shows that Lindon
reported having urinary problems soon after the 1994 surgery.
All of his treating physicians stated that the urinary problems
were causally related to his injury.
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It appears that Lindon’s psychiatric complaints first
came to light in a medical report prepared by Dr. Pellegrini on
July 26, 1995, in conjunction with Lindon’s claim for Social
Security Disability Benefits.
According to the report, Dr.
Pellegrini indicated that Lindon was suffering from moderate
situational depression and anxiety in conjunction with his
cervical injury and CTS.
In his deposition, Lindon testified
that he first complained of feeling down to Dr. Pellegrini in
March or April of 1995.
He informed Consol of his diagnosis of
depression and anxiety in a letter dated August 7, 1995.
The
medical evidence regarding Lindon’s psychiatric complaints
indicates a causal relationship between the injury and his
subsequent depression.
Dr. Pellegrini, Lindon’s primary treating physician,
testified that Lindon probably had some CTS prior to the accident
which became symptomatic as a result of the injury.
Dr.
Pellegrini reiterated his earlier testimony that the injury did
not cause the CTS, which he believes is better attributed to
Lindon’s entire work history.
In his opinion, the work injury
made the CTS “more apparent.”
Dr. Pellegrini assigned an
impairment rating of 10% attributable to CTS.
In regards to the
decrease of strength in Lindon’s hands and arms, Dr. Pellegrini
attributed those complaints mostly to the injury.
He believes
that the fact that the right wrist surgery did not provide relief
shows that part of the problem is attributable to the injury.
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Dr. Robert Goodman (Dr. Goodman) evaluated Lindon on
January 5, 1996.
He gave a 10% impairment rating for the
cervical injury, apportioning it equally between the injury and
pre-existing conditions.
Dr. Goodman further noted that Lindon’s
arm complaints were causally related to the accident only.
He
does not believe that Lindon has CTS.
On November 26, 1996, the ALJ entered an opinion
dismissing Lindon’s claim for additional income benefits.
Once
again, the ALJ reiterated that res judicata precluded any further
consideration of occupational disability in regard to Lindon’s
orthopedic complaints.
In regard to whether Lindon had suffered
an increase in occupational disability due to his orthopedic
complaints, the ALJ found that Lindon had failed to meet his
burden of proof, stating that he found Lindon’s self-described
limitations to be similar to those described in his original
complaint.
In regard to Lindon’s psychiatric complaints, the ALJ
initially found that his depression “was caused, at least in
part, by the work injury.”
However, the ALJ found that Lindon
could not use his psychiatric condition to show an increase in
his disability because he was aware of his condition at the time
of his initial claim was decided.
902 S.W.2d 820 (1995).
Slone v. Jason Coal Co., Ky.,
In so finding, the ALJ stated:
At the original hearing, the Plaintiff
testified to nerve problems including trouble
dealing with people and a diminished ability
to concentrate. Dr. Pellegrini had diagnosed
depression in April and June 1995. The
Plaintiff also testified that he began having
symptoms of depression and tearfulness
following his operations in 1994, although he
-5-
did not report these symptoms to Dr.
Pellegrini until 1995. It appears to this
Court that the Plaintiff knew or could have
known of this condition and should have
pursued same in the original claim.
Therefore no increase in occupational
disability can be shown based upon
Plaintiff’s psychiatric condition and the
language in Slone, supra.
The ALJ further found that Lindon failed to give due and timely
notice of his depression based on the fact that Consol was not
notified of his condition until August 7, 1995.
The ALJ based
this decision on his earlier finding that Lindon was aware of his
depression at the time the original award was entered.
In regard to Lindon’s urinary complaints, the ALJ found
that he failed to show a worsening of his condition.
In so
holding, the ALJ stated:
Dr. Lotenfoe and Dr. Pellegrini indicated
that the Plaintiff’s bladder dysfunction was
due to the Plaintiff’s spinal cord injury.
Dr. Lotenfoe assigned a 20% impairment due to
the Plaintiff’s bladder problems while Dr.
Blackburn assigned a 35% impairment. It
appears that the only restriction put on the
Plaintiff because of this condition is his
need to catheterize himself every four to six
hours and to work in a clean environment. In
the initial Opinion, Order, and Award ALJ
Dockter basically found the Plaintiff unable
to return to the coal mining industry and
ordered vocational retraining so Plaintiff
could be trained in another field. There is
no indication that the other jobs for which
the Plaintiff could be trained outside the
coal mining industry would be effected by the
Plaintiff’s need for self-catherization found
above.
The ALJ also found that Lindon failed to give due and timely
notice of his urinary problems based on the fact that he was
aware of his condition for several months prior to December 1995
and the fact that notice to Consol was not given until September
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1996.
Following denial of his motion for reconsideration, Lindon
once again appealed to the Board.
In an opinion rendered May 16, 1997, the Board reversed
the ALJ’s opinion and remanded it for further consideration.
At
the outset of its opinion, the Board states that “[t]he primary
issues presented on appeal... are questions of law rather than
fact.”
In regard to Lindon’s psychiatric condition, the Board
found that the ALJ erred in its application of Slone.
Although
like Slone, Lindon had filed a claim for Social Security, the
Board found that his claim was for physical disability only and
that there was no indication that it was based wholly or in part
on psychological problems.
Secondly, the Board found it
unreasonable to conclude that Lindon should have known at the
time of his original complaint that he had a compensable
psychological condition based on his testimony before ALJ Dockter
in his original claim that he found himself to be more irritable
and less able to cope with family members.
The Board noted that
during the initial claim, Lindon had no diagnosis of or treatment
for a psychiatric condition, and that to hold otherwise “places
an unreasonable burden upon an individual to self-diagnosis
himself.”
The Board also disagreed with the ALJ’s finding that
Lindon failed to give due and timely notice of his psychological
condition, holding:
If the ALJ were correct that Lindon knew or
should have known of his psychological
condition at the time of his original
testimony, then clearly Consol was put on
notice at that time since they were
represented by counsel and present at the
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testimony. While KRS 342.190 provides for
written notice, it has consistently been held
that written notice is not required when
there is actual knowledge on the part of the
employer. KRS 342.190; and KRS 342.200.
Also, pursuant to Reliance Diecasting Co. vs.
Freeman, Ky.,471 SW2d 311 (1971), knowledge
of the accident carries with it notice of all
conditions that might reasonably be presumed
to flow from that accident. Consol could
reasonably anticipate that a substantial
cervical injury resulting in a fusion with
additional residuals could result in a
psychological disorder.
As to Lindon’s orthopedic complaints, the Board agreed
that ALJ Dockter’s findings concerning CTS and its relation to
the 1993 operates as res judicata.
However, the Board found that
the ALJ improperly applied res judicata to bar consideration of
ongoing or increased orthopedic problems, especially as related
to complaints concerning his arms.
The Board noted that although
Lindon alleged CTS in both his new claim and motion to reopen,
the medical evidence, particularly that of Drs. Goodman and
Pellegrini, showed that his upper arm complaints were related to
the cervical spine injury as opposed to CTS.
The Board noted:
It was incumbent upon the ALJ, therefore, to
consider the orthopedic problems to the
extent that they may have worsened or to the
extent that the upper extremity problems
related to the cervical spine injury rather
than carpal tunnel syndrome. While we
certainly cannot say that the evidence
compelled a conclusion that the orthopedic
condition by itself constituted a worsening
of occupational disability, the ALJ, having
failed to address the problems at all,
mandates remand.
Finally the Board addressed Lindon’s urinary problems.
The Board first held that the ALJ erred in apparently failing to
consider the testimony of Michael Marcum (Marcum), a vocational
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guidance counselor.1
The brunt of Marcum’s testimony was that
due to Lindon’s illiteracy, he would be ineligible for all
available vocational rehabilitation programs.
In regard to this
issue the Board found Marcum’s testimony to be:
[a]lso significant to the extent that the ALJ
concluded that while claimant’s neurogenic
bladder was related to the original injury,
it created no additional occupational
disability. That conclusion by the ALJ was
based, in part upon ALJ Dockter’s original
conclusion that Lindon was prohibited from
returning to the dirty work of coal mining.
Mr. Marcum’s testimony, if believed, could
lead one to conclude Lindon was unlikely to
be a candidate for finding employment in a
clean environment. Certainly the ALJ is not
bound by this testimony but it should be
considered.
The Board also found that Lindon gave due and timely notice of
his urinary complaints based on Reliance.
Consol initially filed a petition for review of the
Board’s opinion with this Court.
On April 14, 1998, this Court
dismissed Consol’s appeal(as well as Lindon’s cross appeal) on
the grounds that the Board’s order was not final and appealable.
On August 3, 1998, the ALJ entered an order on remand
amending the original order to conform with the Board’s opinion.
In this order, the ALJ found that Lindon’s psychiatric condition,
together with his physical problems, rendered him totally
disabled.
The ALJ once again refused to find that Lindon’s
urological or orthopedic complaints resulted in any additional
occupational disability.
1
Although Marcum’s deposition was filed in the record before
the ALJ, the Board presumed that the ALJ did not consider it
because he neither refers to or acknowledges it.
-9-
Consol filed an appeal from the ALJ’s order with the
Board.
Consol first raised the issues it brought forth in its
original appeal.
The Board indicated without further
elaboration, that it felt its original findings were correct and
noted that the issues were preserved for further appeal.
Second, Consol argued that the ALJ failed to set forth
proper findings of fact in support of his conclusion that Lindon
is now totally disabled as a result of the combination of his
physical and psychological problems.
The Board found:
In rendering a decision, it is not incumbent
upon the fact finder to set forth either a
detailed recitation of the facts or the law
nor to discuss the minute detail of his
reasoning. In the instant action, we believe
it is particulary significant that the ALJ
when he rendered his initial decision on
November 26, 1996, offered a detailed summary
of the evidence and specifically a detailed
summary of the evidence relating to the
psychological condition. He noted that both
Drs. Dietrich and Vandivier believed that the
prognosis from a psychological standpoint was
poor. It was acknowledged that Lindon was
learning disabled, depressed and anxious. He
appeared to be functioning at a low average
level and even Dr. Cooley, who performed an
extensive psychiatric examination, diagnosed
chronic dysthymia and mild mental
retardation. The ALJ in his Order on Remand
did not again summarize this evidence. He
did, however, conclude:
Plaintiff’s psychiatric condition
is severe as indicated by the
testimony given by Dr. Dietrich and
Dr. Vandivier. Even Dr. Cooley
indicates that the Plaintiff’s
[sic] needs psychiatric
treatment... Although Plaintiff
may have had some of these problems
dating back to 1994, they
apparently were not of the degree
to cause any occupational
disability at that time. At the
present, however, Plaintiff’s
-10-
psychiatric condition does limit
his ability to function properly.
This finding on the part of the ALJ satisfies
the requirement set out in Shields [vs.
Pittsburgh and Midway Coal Mining Co., Ky.
App., 634 S.W.2d 440 (1982)]. It would have
served no realistic nor reasonable purpose,
particulary when considering the amount of
paper that already exists in this file for
the ALJ to again offer a detailed
summarization of the psychological testimony.
The parties as well as this Board can review
this Order and have a reasonable
understanding of the basis for ALJ’s
decision.
This appeal followed.
Prior to addressing the merits of Consol’s appeal,
there are several procedural arguments which need to be
addressed.
First, Consol argues that Lindon’s reply brief should
be stricken in its entirety on the ground that it was untimely
filed and thus not in accordance with CR 76.25(6).
This argument
is moot due to the fact that Lindon was given permission to file
his brief out of time by order of this Court entered April 14,
1999.
Consol also asks that a portion of Lindon’s reply brief be
stricken.
In the closing paragraph of his reply brief, counsel
for Lindon alleges that his complaints have not been taken
seriously because he is African-American and that Consol has done
everything possible to avoid paying benefits. Lindon also asked
that Consol be sanctioned.
Counsel for Consol was given leave to
file a response brief in regard to Lindon’s allegations.
Consol
asked that the allegations be stricken and Lindon’s motion for
sanctions denied.
-11-
Having reviewed the entire 18 volume record of evidence
presented in this matter, we find the last paragraph of Lindon’s
brief to be totally inappropriate and therefore order it
stricken.
It appears that up until this point, Lindon has never
alleged racial discrimination in the handling of his claim and
there is no evidence in the record to support this unfortunate
and unnecessary claim.
Furthermore, there is nothing in the
evidence which would indicate that Consol has in any way
attempted to abuse the appellate process or somehow prolong this
claim.
Lindon’s allegations are not well taken and his motion
for sanctions is denied.
Lindon alleges that Consol’s failure to file a petition
for reconsideration pursuant to KRS 342.281 bars an appeal of all
factual findings and errors related thereto.
Having reviewed the
record herein and the issues raised by Consol on appeal, we
believe that Lindon’s allegation on this issue applies only to
Consol’s argument that the ALJ’s order on remand was not
adequately supported by findings of fact.
Specifically, Consol
alleges that the ALJ’s order regarding Lindon’s psychiatric
condition contained “no findings of fact to support his
conclusion and failed to provide any rationale demonstrating the
method by which he weighed the evidence.”
Pursuant to KRS 342.281, any “errors patently appearing
upon the face of the award, order or decision” are to be brought
to the attention of the ALJ by a petition for reconsideration in
order to give him a chance to correct the error.
Although the
pre-1996 amendment version of KRS 342.281 provided that failure
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to file a petition for reconsideration would not preclude appeal
on a contested issue, that language is absent from the current
version of KRS 342.281.
Under KRS 342.0015, “procedural
provisions of [the 1996 amendments] shall apply to all claims
irrespective of the date of injury[.]” Therefore, because Consol
failed to ask the ALJ for further factual findings in regard to
the order on remand, this argument is precluded from further
review.2
Finally we believe that several of the issues raised by
Consol on appeal are now moot by virtue of the Board’s
affirmation of the ALJ’s order on remand.
Specifically, Consol
argues that (1) the ALJ properly dismissed Lindon’s urological
complaints due to lack of timely notice; and (2) the ALJ properly
found that Lindon failed to prove an increase in occupational
disability due to his urological complaints.
As our review of
the ALJ’s order on remand shows, the increase in Lindon’s
occupational disability rating was based solely on his
psychiatric condition, and the ALJ specifically found after
further review that “this Court still does not believe that the
Plaintiff’s urinary condition would result in any additional
occupational disability.”
As the Board affirmed the ALJ’s order
on remand, we believe that it is no longer necessary to review
these particular issues as they had no bearing on the ALJ’s
determination on remand.
2
Even if we are mistaken in regard to this ruling, we agree
with the Board’s handing of this issue as set forth earlier in
this opinion and adopt the position of the Board’s ruling as our
own.
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We will now address the merits of the appeal.
We note
at the outset that:
[t]he function of further review of [the
Board] in the Court of Appeals is to correct
the Board only where the Court perceives the
Board overlooked or misconstrues controlling
statutes or precedent or committed an error
in assessing the evidence so flagrant as to
cause gross injustice.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-688
(1992).
Consol first contends that the Board erred in reversing
the ALJ’s findings that Lindon’s orthopedic complaints were
barred by the doctrine of res judicata.
We agree with Consol
that the doctrine of res judicata bars a litigant from retrying a
workers compensation issue that has been fully litigated and
decided.
Uninsured Employers’ Fund v. Fox, Ky. App., 862 S.W.2d
902, 904 (1993).
If the claims Lindon filed after the issuance
of ALJ Dockter’s original opinion attempted to obtain benefits
for CTS arising out of his 1993 injury, then we would agree with
Consol’s argument.
However a review of the record shows that
this is not the case.
In regard to Lindon’s claim for CTS, the only ruling
ALJ Dockter made was that it was not casually related to his
injury of December 1993.
The Board affirmed, noting that Lindon
had not filed a cumulative trauma claim or a disease claim for
CTS and that the sole issue before ALJ Dockter was “whether CTS
was related to the December 12, 1993 injury which he answered in
the negative based not only on the report of Dr. Kasdan, but upon
the report of Dr. Pellegrini.”
A review of Lindon’s second
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application for adjustment as well as his motion to reopen
clearly shows that he was not attempting to relitigate the ALJ’s
finding that there was no casual connection between his
allegation of CTS and the 1993 injury.
In his application for
adjustment, Lindon alleged entitlement for benefits due to
repetitive use and constant bending and flexing of his wrists.
The medical evidence filed in support of Lindon’s CTS claim,
particularly that of Dr. Pellegrini, supported the idea that
Lindon developed CTS as a result of his entire work history as
opposed to his injury alone.
Secondly, in his motion to reopen,
Lindon alleged mistake in ALJ Dockter’s earlier opinion that he
did not have CTS.
We agree with the Board that “although the
motion to reopen was couched in terms of mistake, that by itself
does not bar reopening based on change of occupational
disability.”
Based on the various summaries of the medical
evidence contained in the record as well as our own review
thereof, we do not believe the Board erred in remanding the
matter for further consideration as to whether Lindon’s
orthopedic complaints had resulted in an increase in occupational
disability.
Consol next argues that the Board erred in finding that
Lindon gave due and timely notice of his psychological
complaints.
Consol argues that Lindon knew of his psychiatric
condition long before he submitted the letter of notice.
Pursuant to KRS 342.185, notice of a compensable injury
must be given to an employer ”as soon as practicable after the
happening thereof.”
KRS 342.185 is somewhat tempered by KRS
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342.200, which provides in part that “delay in giving notice
shall not be a bar to proceedings under this chapter if it is
shown...that the delay or failure to give notice was occasioned
by mistake or other reasonable cause.”
“Whether notice has been
give as ‘soon as practicable’ depends upon all the circumstances
of the particular case.”
Marc Blackburn Brick Co. v. Yates, Ky.,
424 S.W.2d 814, 816 (1968).
The nature of the injury is also
important when addressing issues of notice “insofar as it relates
to the knowledge of the injured person of the extent of his
injury.”
Yates, 424 S.W.2d at 816.
We agree that Lindon gave notice of his psychiatric
problem as soon as practicable.
Under Reliance Diecasting Co. v.
Freeman, Ky., 471 S.W.2d 311 (1971), an employer’s notice that an
accident involving an employee has occurred “carries with it
notice of all those things which reasonably may be anticipated to
result from it[.]”
Reliance, 471 S.W.2d at 313.
There has never
been any dispute that Consol had immediate notice of Lindon’s
mishap in the mine.
Given the severity of his injury and his
resulting inability to return to work, we are not willing to say
that depression is not reasonably anticipated to flow from his
injury.
Even if Reliance does not apply in regard to Lindon’s
notice concerning his depression, we believe that it was still
timely given.
The first medical diagnosis of depression appears
in Dr. Pellegrini’s record of July 26, 1995 following an office
visit on July 19, 1995.
Although Lindon testified in his
original claim to having problems getting along with people and
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being around people and crying over little things in the summer
of 1995 and feeling down in March or April of 1995, we do not
feel that these episodes would have been sufficient to inform
Lindon, a man of limited intellectual capacity, that he was
suffering from a work-related, compensable condition.
The notice
requirement of the worker’s compensation statutes “does not
demand the impossible of the employee”, and we agree with the
Board that to find otherwise places an unreasonable burden on
Lindon to self-diagnose his depression.
846 S.W.2d 694, 700 (1992).
Newburg v. Slone, Ky.,
Based on the foregoing, Lindon’s
written notice to Consol on August 7, 1995 is sufficient to
satisfy the requirements of KRS 342.185.
Consol next contends that the ALJ properly dismissed
Lindon’s psychological complaints under the rationale of Slone.
We agree with the Board that, although somewhat similar to the
case at hand, Slone is easily distinguishable.
Slone, who suffered a work-related back injury, filed
for both workers’ compensation and Social Security benefits in
July 1987.
While Slone included a claim for psychiatric
complaints in his social security claim, there was no such claim
made in conjunction with his workers’ compensation claim.
In
1992, Slone sought to reopen his workers’ compensation claim
alleging a change in occupational disability due to psychiatric
problems.
In holding that Slone could not reopen his claim, the
Kentucky Supreme Court held:
The testimony in the record from the
physician expert used by the claimant
indicates that the mental condition was
sufficiently known to be the subject of a
-17-
proceeding for Federal social security
benefits. For some unknown reason, the
claimant did not choose to pursue a similar
complaint in the State workers’ compensation
proceeding. Accordingly, the present appeal
which attempts to raise these issues by means
of the reopening procedure cannot really be
distinguished from the prohibition against
piecemeal litigation stated in Wagner Coal &
Coke Co. v. Gray, 208 Ky. 152, 270 S.W. 721
(1925). The failure of the claimant to
present any evidence regarding his mental
condition in the original workers’
compensation claim cannot be cured by a
motion to reopen more than two years later.
KRS 342.125 provides that an award may be
reopened upon a showing of “change of
occupational disability, mistake or fraud or
newly discovered evidence.” A motion to
reopen cannot be based on a condition known
to the claimant during the pendency of his
original action, but which for some reason,
he did not choose to litigate.
....
The mental condition could not be considered
“newly discovered evidence” because Sloan
knew of this condition in 1987. His claim
that the record does not show that counsel in
the original proceeding understood that he
had a psychiatric condition which was work
related is unconvincing. Obviously counsel
knew of the condition because it was
presented in the social security claim
process. His failure to determine whether
the psychiatric condition was work related is
simply a lack of due diligence. It is not
“newly discovered evidence” that can be used
to support a motion to reopen.
Slone, 902 S.W.2d at 821-822.
While Slone is factually similar, there are several
differences which warrant a different outcome in this case.
Unlike Slone, there was no evidence that Lindon knew he was
suffering from depression at the time his original claim was
filed, let alone that it was related to his injury and thus
-18-
compensable.
As the Board stated, “[i]f the filing [of] a
Federal black lung claim cannot be used to establish a distinct
manifestation of a disease, certainly irritability cannot be
reasonably presumed to indicate a compensable psychological
disorder.”
Having considered the parties’ argument on appeal, the
decision of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, WILLIAM
LINDON:
Natalie D. Brown
Lexington, KY
Phyllis L. Robinson
London, KY
Roland Case
Pikeville, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Joel D. Zakem
Louisville, KY
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