ROY W. BROWN v. SILVER NUGGETS, INC.; P & C MINING COMPANY/ CRAWFORD COAL COMPANY; IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 6, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000761-WC
ROY W. BROWN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-12041
SILVER NUGGETS, INC.; P & C MINING COMPANY/
CRAWFORD COAL COMPANY; IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
CHIEF JUDGE GUDGEL, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is a petition for review from an opinion
of the Workers’ Compensation Board (“Board”) affirming a decision
of the Administrative Law Judge (“ALJ”) which denied appellant’s
motion to reopen.
Appellant alleges a worsening of his condition
as a result of two prior occupational injuries.
As there was
substantial evidence that appellant had not experienced a
significant change in occupational disability due to a worsening
of his condition, we affirm.
Appellant, Roy Brown, sustained his first injury while
working for P & C Mining Company (“P & C”) in 1981.
On July 24,
1981, a cutter bar fell, injuring Brown’s right thigh and
fracturing his right ankle.
His ankle was ultimately fused, and
Brown thereafter received an award of 40% permanent partial
disability.
Brown returned to work in coal mining in 1988.
On
March 24, 1993, while working as a roof bolter for Silver
Nuggets, Inc. (“Silver Nuggets”), Brown sustained a severe
laceration to his right wrist from a roof strap, which affected
the nerves in his wrist.
With his claim for the 1993 injury,
Brown moved for reopening as to the 1981 injury.
As to the 1993
injury, the ALJ awarded Brown 45% permanent partial disability.
As to the 1981 injury, the ALJ found that there had been no
increase in occupational disability as a result of that injury.
Thus, Brown had a total permanent partial disability of 85%.
Taking into consideration Brown’s age at the time, which was 31,
the ALJ concluded that Brown was not totally occupationally
disabled, but that occupational rehabilitation was appropriate
pursuant to KRS 342.710.
On September 14, 1998, Brown moved to reopen, alleging
a worsening of his occupational disability and that he was now
totally occupationally disabled as a result of both injuries.
After the Arbitrator’s finding that Brown had failed to sustain
his burden of proof to establish a worsening of his condition,
Brown sought a de novo determination by an ALJ.
After a hearing
on the matter, the ALJ likewise found that Brown failed to
sustain his burden of proof as to the worsening of his condition
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as a result of the two prior injuries.
From the Board’s opinion
affirming the ALJ, this petition for review followed.
Brown’s 1994 deposition testimony indicates that he has
not worked since the 1993 injury.
As a result of that injury, he
underwent some physical therapy and was provided with a wrist
glove/splint.
In the 1994 deposition, Brown stated:
that he had
extreme sensitivity in his right hand; that he had practically no
grip strength left; and that he could do very little with his
right hand, even to the point where his wife had to cut his food.
In his 1998 deposition, Brown indicated that he did not
have any feeling in his fingers and that he had extreme
sensitivity and a cold, achy feeling in his hand and fingers.
He
again complained of very little grip strength and that he had
trouble picking things up.
As to the leg injury, Brown’s 1995 deposition testimony
indicated that he still experienced problems with his right foot
and leg due to the limited motion in his ankle as a result of the
fusion.
In Brown’s 1998 deposition, he complained of pain in his
right knee around the knee cap area that he had had since 1981,
and that it had been getting worse as time went by.
Also in Brown’s 1998 deposition, he stated that he had
pretty much given up hunting and fishing and that he primarily
spends his day watching television.
He stated that he had been
advised to go for a vocational evaluation in Paducah, to which he
never went.
At the hearing before the ALJ, Brown testified that his
condition continues to get worse, both as to his right arm and
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right leg, and that he continues to have problems with
circulation, causing his extremities to become cold and achy.
He
stated that he continues to have periodic bouts with phlebitis
and that his right knee also aches.
He testified that his ankle
swells if he does not keep it elevated.
It was Brown’s opinion
that he was not capable of performing any type of work at this
time.
In support of his motion to reopen, Brown presented the
deposition of Dr. David Muffly, an orthopedic surgeon who first
examined Brown in April, 1995, and then again in August, 1998.
As to the wrist injury, Dr. Muffly stated in 1995 that Brown had
sustained a 60% laceration of the median nerve, as well as a
laceration of the palmaris longus tendon.
Dr. Muffly noted that
Brown had a hypersensitive scar over the median nerve, as well as
continued numbness in the thumb, index, long, and part of the
ring finger.
Dr. Muffly further noted:
positive Tinnel’s sign;
that Brown only had an 8 mm 2-point discrimination within the
median nerve distribution and 4 mm in the ulnar distribution; and
that Brown could fully flex and extend the wrist, although his
grip strength on the right was only 20 pounds, as opposed to 85100 pounds on the left.
As to the leg injury, Dr. Muffly stated in 1995 that
Brown had undergone a fusion of the right ankle, but that Brown
had also developed complications regarding osteomyelitis.
Dr.
Muffly also noted that Brown has undergone repairs of the
lacerations of the quadriceps of the right thigh, and that he was
now experiencing a constant limp and knee pain.
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Examination of
Brown’s right leg revealed:
multiple scars around the right
ankle; soft tissue defects, both of the mid and distal end of the
thigh with depressed areas; 3 cms of atrophy of the right thigh;
6 cms of swelling of the right supramalleolor areas; knee
reflexes were 2 + and symmetric; 2 + ankle jerk on the left; no
ankle jerk on the right; and generalized weakness of the right
leg muscles, especially in the quadriceps area.
X-rays of the right ankle demonstrated a solid fusion
with bone changes suggestive of chronic osteomyelitis, and
shortening of the right leg.
At that time (1995), Dr. Muffly
assessed a 14% whole body impairment relative to the wrist
injury, 12% to the right ankle injury, 4% to the quadriceps
weakness, and 5% to a lumbar compression fracture.
As a result
of this combined impairment, Dr. Muffly felt that Brown was
basically restricted to left-handed work.
When Brown was examined in 1998, Dr. Muffly again
observed Brown limping, as well as a popping when Brown bent his
right knee.
Dr. Muffly noted that the right knee had
demonstrated some degenerative changes in the medial aspect, and
there was a positive McMurray test consistent with a medial
meniscus tear.
X-rays of the right knee in 1998 indicated
narrowing of the medial joint line with calcification, indicating
that only 3 mm of cartilage remained.
X-rays of the right ankle
revealed bone changes suggestive of chronic osteomyelitis.
It
was Dr. Muffly’s opinion that there had been some progression of
right knee osteoarthritis.
At this time (1998), Dr. Muffly
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assessed an overall 37% whole body impairment and opined that
Brown was now totally disabled.
Silver Nuggets had Brown examined by Dr. Daniel Primm
on June 9, 1994.
At that time, it was Primm’s opinion that
Brown’s tendon lacerations had healed with no significant
residuals, as his motor strength had revealed a 4/5 on the right
and 5/5 on the left.
According to Dr. Primm, Brown’s main
problem appeared to be residuals of numbness and sensitivity from
this laceration.
There was no evidence of thenar muscle wasting
in the hand, and Dr. Primm encouraged Brown to continue with scar
massage on a regular basis.
It was Dr. Primm’s opinion that
Brown could return to work, particularly if he primarily used his
left hand and used his right hand only for assistance.
Dr. Primm
acknowledged that it would be difficult for Brown to return to
work which required heavy lifting or fine manipulation of the
right hand.
At that time, Dr. Primm assessed an impairment
rating of 8%-10%.
On November 3, 1998, Dr. Primm re-examined Brown and
found basically no differences between the 1995 and 1998
examination.
Dr. Primm saw no evidence of acute or chronic
osteomyelitis in Brown’s right ankle.
He noted that both knees
were normal except for mild or early degenerative changes.
Primm found no evidence of any objective changes in Brown’s
overall condition, noting that Brown was not taking any
medication and had not been undergoing any regular medical
treatment.
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Dr.
The 1994, 1996, and 1998 reports of Dr. O. M. Patrick
were also presented.
Dr. Patrick noted that when he examined
Brown in 1998, Brown complained of pain and loss of sensation in
his right wrist and swelling in his right leg and back pain.
However, it was Dr. Patrick’s opinion that there had been no
worsening of Brown’s work-related conditions as they were
essentially unchanged.
It was his opinion, however, that Brown
would be restricted in many activities, although he could perform
light manual and sedentary activities.
KRS 342.125(1)(d) provides that a claim may be reopened
upon a “[c]hange of disability as shown by objective medical
evidence of worsening or improvement of impairment due to a
condition caused by the injury since the date of the award or
order.”
It has been held that a claimant seeking reopening has
the burden of proving by competent evidence that there has been a
significant change in occupational disability.
v. Gossett, Ky., 819 S.W.2d 33 (1991).
Peabody Coal Co.
The ALJ, as fact-finder,
has the sole authority to judge the weight, credibility,
substance, and inference to be drawn from the evidence.
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
Furthermore, the ALJ may choose to believe part of the evidence
and disbelieve other portions of the evidence, whether the
evidence came from the same witness or from the same party’s
total proof.
See Caudill v. Maloney’s Discount Stores, Ky., 560
S.W.2d 15 (1977); Brockway v. Rockwell International, Ky. App.,
907 S.W.2d 166 (1995).
If the ALJ’s decision is supported by
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substantive evidence of record, it must be upheld.
Special Fund
v. Francis, Ky., 708 S.W.2d 641 (1986).
Brown argues that the testimony of Dr. Muffly was such
that it compelled a ruling in his favor.
Ky. App., 576 S.W.2d 276 (1979).
See Snawder v. Stice,
We disagree.
We do not see
that the evidence provided by Dr. Muffly was so overwhelming that
no reasonable person could have reached the conclusion of the
ALJ.
See REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224
(1985).
The ALJ simply chose not to rely on the opinion of Dr.
Muffly that Brown’s work-related conditions had worsened to the
point that he was now totally disabled.
Rather, the ALJ found
the evidence provided by Drs. Primm and Patrick more credible.
Although Drs. Primm and Patrick recognized that Brown had certain
physical limitations, Dr. Patrick and Dr. Primm both found no
overall increase in impairment.
As that was substantive evidence
to support the ALJ’s decision, that decision must be upheld.
For the reasons stated above, the opinion of the
Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, SILVER
NUGGETS, INC.:
Ronald C. Cox
Harlan, Kentucky
Monica J. Rice
Hazard, Kentucky
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BRIEF FOR APPELLEE, P & C
MINING COMPANY/CRAWFORD COAL
COMPANY:
J. Gregory Allen
Prestonsburg, Kentucky
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