LEE DOTSON, JR. V. CRYSTAL SPRINGS COAL COMPANY; ROBERT L. WHITTAKER, Director Administrative Law Judge; and WORKERS' COMPENSATION BOARD ROBERT L. WHITTAKER, Director v. LEE DOTSON, JR.; CRYSTAL SPRINGS COAL COMPANY; HON. DONALD G. SMITH, Administrative Law Judge; and WORKERS'COMPENSATION BOARD
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RENDERED: June 9, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003205-WC
LEE DOTSON, JR.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-94-17706
CRYSTAL SPRINGS COAL COMPANY;
ROBERT L. WHITTAKER, Director
of Special Fund; DONALD G. SMITH,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
AND:
1999-CA-000168-WC
ROBERT L. WHITTAKER, Director
of Special Fund
v.
APPELLEES
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF
A DECISION OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-94-17706
LEE DOTSON, JR.;
CRYSTAL SPRINGS COAL COMPANY;
HON. DONALD G. SMITH,
Administrative Law Judge; and
WORKERS’COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM and HUDDLESTON, JUDGES.
BUCKINGHAM, Judge.
Lee Dotson, Jr., (Dotson) petitions this
court for review of the December 4, 1998, opinion of the Workers’
Compensation Board (Board), which reversed and remanded the
opinion and award of the administrative law judge (ALJ) awarding
100% occupational disability benefits upon reopening.
The
Special Fund has filed a cross-petition for review regarding
credit for payments made under the settlement agreement.
Having
considered the parties’ arguments and the record below, we do not
perceive that the Board committed any error.
Therefore, we
affirm.
Dotson sustained a work-related injury to his back on
April 15, 1994, while in the employment of Crystal Springs Coal
Company (Crystal Springs).
He filed an application for
adjustment of claim, and he eventually settled his claim on June
12, 1995, for 60% permanent partial disability apportioned
equally between Crystal Springs and the Special Fund.
He
received a lump sum of $40,241.40 from Crystal Springs and
periodic payments of $187.18 per week for 260 weeks from the
Special Fund.
Dotson also settled a RIB claim against Crystal
Springs in 1994 for $15,000.
On August 11, 1997, Dotson filed a motion to reopen the
1995 settlement, claiming an increase in functional and
occupational disability from the 1994 injury.
An arbitrator
granted the motion to reopen on September 24, 1997, and following
proof time, entered a subsequent order on January 7, 1998.
Dotson filed his request for a de novo hearing before an ALJ on
January 20, 1998.
Following the entry of proof and a final
hearing, the ALJ entered an opinion and award finding that Dotson
had established an increase in his occupational disability and
that he currently suffered from a 100% occupational disability.
In particular, the ALJ stated that “although this Court [sic]
believes that it is questionable whether the Plaintiff was
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totally disabled at the time he entered into the settlement
agreement, the Administrative Law Judge now believes the
Plaintiff is definitely totally disabled.”
The ALJ later entered
an order denying the Special Fund’s petition for reconsideration
in which he stated that the 60% settlement accurately reflected
Dotson’s occupational disability at that time and that the
defendants were entitled to a credit for payments made pursuant
to the settlement.
Crystal Springs and the Special Fund both appealed to
the Workers’ Compensation Board, arguing that substantial
evidence did not support the ALJ’s decision regarding a change in
medical condition or in occupational disability and that the ALJ
erred in failing to make specific findings as to the amount of
credit.
The Board reversed the ALJ’s opinion and award, finding
no evidence to support his finding of an increase in occupational
disability.
This decision rendered the Special Fund’s appeal
regarding credit moot.
Dotson has now petitioned, and the Special Fund has
cross-petitioned, this court for review of the Board’s decision.
Dotson argues that substantial evidence of record supports the
ALJ’s finding of an increase in occupational disability.
The Board provided an excellent and thorough summary of
the lay and medical evidence located at pages two through seven
of its opinion, which we do not need to repeat here.
Therefore,
we will adopt that portion of the opinion as our own.
We first note the standard of review applicable in this
appeal.
When the party without the burden of proof is
unsuccessful, as here, the question on appeal is whether the
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findings of the ALJ were supported by substantial evidence.
See
Smyzer v. Goodrich Chemical Co., Ky., 474 S.W.2d 367 (1971).
Substantial evidence is defined as “evidence of substance and
relevant consequences having the fitness to induce conviction in
the minds of reasonable men.”
Ky., 896 S.W.2d 7, 9 (1995).
Union Underwear Co. v. Scearce,
If the findings of the ALJ are
supported by substantial evidence, the reviewing court must
affirm the fact finder’s decision.
In workers’ compensation
actions, the role of the court of appeals is to correct the Board
only when it has misconstrued the law or erroneously assessed the
evidence so flagrantly as to cause gross injustice.
Western
Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685 (1992).
Pursuant to KRS 342.125, the reopening of a claim
settled under KRS 342.730(1)(c) occurring after April 4, 1994,
and before December 12, 1996, requires a showing of a change of
medical condition.
Any final award increasing or diminishing
benefits requires a showing of a change in occupational
disability.
“The party seeking to increase an award has the
burden of proving that there has been a change of condition
resulting from the original compensable injury.”
Griffith v.
Blair, Ky., 430 S.W.2d 337, 339 (1968).
In the present appeal, Dotson argues that his award
upon reopening is supported by substantial evidence of record
because he is able to do less now that he was at the time of the
settlement.
However, the ability to do less does not necessarily
equate to a higher occupational disability level.
At the final
hearing, the following colloquy took place during crossexamination by counsel for Crystal Springs:
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Q 24
A
Q 25
A
Q 26
A
Mr. Dotson, you remember that I took your
deposition over in Herbie’s office here
recently. It was February 26, 1998, is that
right?
Yes, I remember taking the deposition.
Okay, sir. And at that time you and I went
through each and every one of the jobs that
you’d worked at in the past, is that
correct?
Yes, sir.
And I asked you if you were able to do any
of those jobs since April 15, 1994, and
since the time of your settlement, which I
believe was some time in June, 1995, and
your answer to each and every one of those
jobs was, no, you’ve not been able to do
them since that time, is that correct?
Yes.
. . . .
Q 28
A
I said, question 100, on page 16 of your
deposition, I said, “Is there any work that
you’ve been able to do since June 12, 1995?”
Any your answer was, “No.” Is that still
your testimony today?
Yes.
Q 29
And then I asked you,
that you’ve been able
1994, the day of your
answer was, “No.” Is
today?
A
“Is there any work
to do since April 15,
injury?” And your
that still your answer
Yes....
Based upon Dotson’s testimony, he was no less able to rejoin the
work force at the time of his hearing than he was at the time of
his 1995 settlement.
The medical records of Dr. Muckenhausen
also reflect her opinion that Dotson was totally and permanently
disabled from gainful employment prior to the 1995 settlement.
Although her later records indicate that his condition had
worsened since the settlement, her records do not reflect that
this worsening of physical condition translates into an increase
-5-
in occupational disability, as these records reflect that Dotson
was totally and permanently disabled prior to the 1995
settlement.
Even the ALJ in his opinion and award questioned
whether Dotson was totally disabled at the time he entered into
his settlement agreement for 60% permanent partial disability.
Pursuant to Newberg v. Davis, Ky., 841 S.W.2d 164, 166
(1992), “[t]he disability figure contained in a settlement
agreement is a negotiated figure and may or may not equal the
claimant’s actual occupational disability.”
The supreme court
went on to state that “[t]he relevant change in occupational
disability, therefore, is the difference between claimant’s
actual occupational disability on the date of the settlement,
regardless of the figure for which he settled, and his
occupational disability at the time of reopening.”
Id. at 166.
In order for an award to be made on reopening, there must be
evidence to support the finding that the claimant is more
disabled now than at the time of the settlement.
Gro-Green
Chemical Co. v. Allen, Ky.App., 746 S.W.2d 69 (1987).
See also,
Central City v. Anderson, Ky., 521 S.W.2d 246 (1975).
This court cannot discern any substantial evidence of
record to support the ALJ’s finding that Dotson has experienced
an increase in occupational disability since the time of his 1995
settlement.
It appears more likely that Dotson made a bad
bargain when he agreed to settle his injury claim for 60%
permanent partial disability.
A motion to reopen cannot be used
to correct a bad bargain in the absence of an increase in
occupational disability.
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In reversing the ALJ’s award upon reopening, the Board
did not misconstrue the law or erroneously assess the evidence.
Western Baptist Hospital, supra.
Therefore, the opinion of the
Workers’ Compensation Board is hereby AFFIRMED.
As we are
affirming on the petition for review, the Special Fund’s crosspetition for review is moot.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLEE CRYSTAL SPRINGS COAL
COMPANY:
Herbert Deskins, Jr.
Pikeville, Kentucky
J. Logan Griffith
Paintsville, Kentucky
BRIEF FOR SPECIAL FUND:
Joel D. Zakem
Louisville, Kentucky
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