BIZZACK, INC. v. THOMAS D. FITCH; HON. ROBERT L. WHITTAKER, Director of Special Fund; HON. DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: January 21, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000436-WC
BIZZACK, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-97-01086
THOMAS D. FITCH;
HON. ROBERT L. WHITTAKER,
Director of Special Fund;
HON. DONALD G. SMITH,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON, and SCHRODER, Judges.
BUCKINGHAM, JUDGE.
Bizzack, Inc., petitions this court to review
a decision of the Workers’ Compensation Board (“the board”) which
affirmed (1) the administrative law judge’s (“ALJ”) October 9,
1997, opinion and award, and (2) the October 9, 1998, opinion and
order denying Bizzack’s motion to reopen.
After reviewing the
record and considering the arguments of counsel, we affirm.
On June 17, 1996, Thomas D. Fitch was injured while
operating a bulldozer in the course of his employment with
Bizzack.
Fitch was electrically shocked when the bulldozer he
was using came into contact with a live electric wire.
Several
hours after the accident, Fitch drove himself to the Highland
Regional Hospital emergency room, where he complained of pain in
his hands and feet.
Fitch was admitted into the hospital for
treatment and discharged the next morning.
He returned to work
for Bizzack two days later and continued to work until January 8,
1997.
On May 1, 1997, Fitch filed an application for resolution
of injury claim against Bizzack and the Special Fund.
After a hearing, the ALJ determined that (1) all of
Fitch’s current physical and psychological problems were caused
by the 1996 work-related accident; (2) due to his psychological
condition, Fitch was now totally occupationally disabled; (3)
Bizzack bears sole responsibility for Fitch’s benefits; and (4)
Bizzack is responsible for all of Fitch’s medical expenses for
his psychological condition, heart condition, and eye problem.
After Bizzack’s motion to reconsider was denied by the ALJ,
Bizzack then appealed to the board.
Prior to the board’s ruling,
Bizzack filed a motion to reopen, pursuant to Kentucky Revised
Statute (KRS) 342.125, on grounds of fraud and newly discovered
evidence.
Consequently, the board agreed to hold Bizzack’s
appeal in abeyance pending resolution of the motion to reopen.
After an arbitrator granted Bizzack’s motion to
reopen, the case was transferred to ALJ Donald Smith, the same
ALJ who had determined the original award.
In his October 9,
1998, opinion and order, ALJ Smith found that the alleged fraud
did not have any impact upon the original award.
appealed the ALJ’s decision to the board.
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Bizzack
In review of both the
October 9, 1997, opinion and award and the October 9, 1998,
opinion and order, the board found (1) that there was substantial
evidence to support the original award, (2) that a portion of
Bizzack’s evidence presented in the motion to reopen did not
constitute "newly discovered evidence", and (3) that the ALJ’s
denial of the motion to reopen was proper.
This appeal followed.
The standard this court employs when reviewing a
workers' compensation decision is set forth in Western Baptist
Hosp. v. Kelly, Ky., 827 S.W.2d 685, 687 (1992):
The [Board] is entitled to the same deference for its
appellate decisions as we intend when we exercise
discretionary review of Kentucky Court of Appeals
decisions in cases that originate in circuit court.
The function of further review of the [Board] in the
Court of Appeals is to correct the Board only where the
. . . Court perceives the Board has overlooked or
misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so
flagrant as to cause gross injustice.
OPINION AND AWARD RENDERED OCTOBER 9, 1998
In the case sub judice, the board reviewed the record
and found substantial evidence to support the ALJ’s award of 100%
occupational disability.
673 S.W.2d 735 (1984).
Wolf Creek Collieries v. Crum, Ky. App.
Specifically, the board pointed to the
testimony of Dr. Timothy Thistlewaite, Dr. Mark Kingston, and Dr.
Leo Gibson.
Dr. Thistlewaite, a board certified psychiatrist,
treated Fitch during two extended hospital stays and two outpatient visits after the 1996 accident, and he diagnosed Fitch as
suffering from major depression associated with post-traumatic
stress disorder (PTSD).
In Dr. Thistlewaite’s opinion, Fitch’s
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psychological condition prevented him from returning to his job
or any similar type of work.
Dr. Kingston, a family medical
doctor who practiced in the Riverview medical clinic, diagnosed
Fitch with PTSD, severe anxiety, and depression.
Based on his
evaluations, Dr. Kingston believed that Fitch was totally
disabled.
Finally, Dr. Gibson, in his medical report, diagnosed
Fitch with PTSD, anxiety, depression, and optic neuritis.
Using
the American Medical Association (AMA) guidelines, Dr. Gibson
found Fitch’s permanent whole body impairment to be 100%.
All
three doctors related Fitch’s problems to the work-related
accident.
The ALJ specifically stated in his findings of fact and
conclusions of law that he found the testimony of these doctors
to be more persuasive than the testimony presented by the
physicians on behalf of Bizzack.
When medical evidence
conflicts, the ALJ has the sole authority to determine who to
believe.
Pruitt v. Bugg Bros., Ky., 547 S.W.2d 123 (1977).
This court may not substitute its judgment for that of the
fact-finder on the weight of the evidence.
736.
Wolf Creek, supra at
We cannot say the board erred in assessing the evidence
concerning the ALJ’s original award.
OPINION AND ORDER RENDERED OCTOBER 9, 1998
The board properly set forth its standard of review of
the ALJ’s decision on reopening under KRS 342.125:
The party who seeks to reopen an award
bears the burden of proof on reopening.
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Where the party who bears the burden of proof
is unsuccessful before the ALJ, the question
on appeal is whether the evidence compels a
finding in his favor. Compelling evidence is
defined as evidence which is so overwhelming
that no reasonable person could reach the
same conclusion as the ALJ. [Citations
omitted.]
We agree with the board that the evidence presented by Bizzack
does not compel a finding in its favor.
Bizzack’s claim of fraud and newly discovered evidence
centered around a medical report it received from Dr. Kingston in
November 1998, several weeks after the original opinion and
award.
The report revealed that Fitch had been treated in
September 1988 for pharyngitis and depressive anxiety and again
in January 1994 for acute depressive anxiety.
The medical report
appeared to rebut Fitch’s testimony that he had not been treated
for depression prior to the 1996 accident and raised the issue of
a prior disability.
However, the depositions of Dr. Kingston and
Dr. Norman Edwards expounded upon Dr. Kingston’s report and
clarified the effect of the previous treatments on Fitch’s
current condition.
Dr. Kingston testified that Dr. Edwards, another doctor
who practiced in the Riverview medical clinic, treated Fitch in
September 1988 and January 1994.
However, having treated Fitch
after the 1996 accident and after reviewing his previous medical
history, Dr. Kingston maintained that Fitch’s current condition
was unrelated to the two "situationally based" episodes Fitch
experienced in 1988 and 1994.
Dr. Kingston opined that the
anxiety Fitch experienced and even the medications he was
prescribed correlated with his attempt to quit smoking and his
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divorce.
Dr. Edwards, Fitch’s treating physician in 1998 and
1994, also testified that Fitch had no permanent or long-standing
mental health problems prior to the 1996 accident.
Finally, Bizzack argues that the ALJ exceeded his
authority and abused his discretion by denying the motion to
reopen after an arbitrator had granted the motion.
argument to be without merit.
We find this
In an order rendered on April 10,
1998, the ALJ specifically stated that the matter had been
reopened due to the alleged fraud on the part of Fitch.
Bizzack
was allowed to file additional proof and brief the arguments for
a decision.
Essentially, Bizzack’s argument is one that puts form
over substance and is based solely on the fact that the ALJ chose
to state in the order that Bizzack’s "motion to reopen is
OVERRULED", rather than simply refusing to end, diminish, or
change the previous award pursuant to KRS 342.125.
More
importantly, the substantial rights of the parties were not
affected by the language used in the order.
For the reasons stated above, the board’s opinion
entered February 1, 1999, is hereby affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, THOMAS D.
FITCH:
W. Kenneth Nevitt
Louisville, Kentucky
G.C. Perry, III
Paintsville, Kentucky
BRIEF FOR SPECIAL FUND:
Joel D. Zakem
Louisville, Kentucky
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