RONNIE D. CORNETT v. ARCH OF KENTUCKY/DIVISION OF APOGEE COAL COMPANY, INC.; HONORABLE DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 15, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001192-WC
RONNIE D. CORNETT
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-00122
v.
ARCH OF KENTUCKY/DIVISION OF
APOGEE COAL COMPANY, INC.;
HONORABLE DENIS S. KLINE,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY AND TACKETT, JUDGES.
TACKETT, JUDGE:
Ronnie D. Cornett (Cornett) petitions this court
to review a decision by the Worker’s Compensation Board (WCB)
affirming the Administrative Law Judge’s (ALJ) findings.
The ALJ
found that Cornett suffered an injury while working for Arch of
Kentucky (Arch); however, Cornett was not entitled to receive
benefits pursuant to KRS 342.730 because he was not permanently
impaired.
We affirm.
Cornett injured his back while working for Arch by
throwing a fifty-pound tool bag over his shoulder.
Cornett felt
pain in his lower back, radiating down his right leg.
He was
taken to the emergency room at Appalachian Regional Hospital
where he was treated and released.
as a result of his back injury.
Cornett did not miss any work
In fact, he continued to work
for Arch as a mechanic for some seventeen months more until he
was laid off when the mine closed.
Cornett argues that the ALJ’s decision denying him
permanent benefits was clearly erroneous under Snawder v. Stice,
576 S.W.2d 276, Ky. App. (1979).
Because Cornett had the burden
of persuasion in front of the ALJ, the standard of review is
whether the evidence in his favor was so overwhelming that no
reasonable person could have found against him.
Wolf Creek
Collieries v. Crum, 673 S.W.2d 735, Ky. App. (1984); Special Fund
v. Francis, 708 S.W.2d 641, Ky. (1986).
Cornett testified that he suffers constant back pain,
and that it is worse when he sits, rides, or stands.
He takes
prescribed pain medication which leaves him drowsy and unable to
concentrate.
Furthermore, he is unable to sleep because of pain
and depression.
As a result of his injury, Cornett received a
total and permanent disability award from Social Security.
Cornett also relies heavily on the testimony of Dr.
Gary K. McAllister (McAllister), an orthopaedic specialist.
McAllister in his report stated that Cornett has a 21% permanent
medical impairment.
The doctor attributed 50% of this impairment
to Cornett’s injury and the remaining 50% to a pre-existing
condition.
McAllister placed multiple restrictions on Cornett’s
work-related activities including: 1) standing, walking, or
-2-
sitting for no more than three hours; 2) never climbing,
balancing, or crawling; and 3) functional limitations of heights,
machinery, temperature extremes, humidity, and vibration.
McAllister stated that Cornett had no physical capacity to return
to his usual work.
Arch presented testimony from two doctors, Richard T.
Sheridan (Sheridan) and Robert P. Goodman.
Both doctors stated
that the abnormalities in Cornett’s back x-rays were due to the
natural aging process.
sprain.
Sheridan diagnosed a resolved low-back
Neither of them found any physical impairment nor placed
any restrictions on Cornett’s ability to return to his usual
employment.
When there is conflicting medical testimony, the
decision of whom to believe rests solely with the fact finder.
Pruitt v. Bugg Brothers, 547 S.W.2d 123, K. (1977).
Cornett had
the burden of persuasion before the ALJ, and he has not
established on appeal that the ALJ’s decision was clearly
erroneous.
The decision of the Worker’s Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR ARCH OF KENTUCKY,
DIVISION OF APOGEE COAL
COMPANY, INC.:
Otis Doan, Jr.
Harlan, Kentucky
Monica J. Rice
Harlan, Kentucky
-3-
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