RONNIE W. CLAYBORN v. R & R MINING CONTRACTORS, INC.; DENIS S. KLINE, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: January 19, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001184-WC
RONNIE W. CLAYBORN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-98-80530
R & R MINING CONTRACTORS, INC.;
DENIS S. KLINE, Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge:
Ronnie W. Clayborn petitions for review of an
opinion of the Workers’ Compensation Board affirming the opinion of
an Administrative Law Judge that found him to be permanently
partially disabled due to an impairment to his back.
Clayborn
asserts that the evidence as a whole compelled a finding of total
permanent disability rather than partial permanent disability.
Clayborn, who was born in August 1959, has worked over
twenty-two years in the coal mining industry.
He has limited
literacy skills with an eighth grade education and no specialized
vocational training.
On April 1, 1998, he experienced sharp pain
in his lower back when twisting and bending to pick up a five
gallon can of hydraulic oil off the belt line.
He went to the
hospital emergency room and was released the same day.
He has not
returned to work since that date.
Following the incident, Clayborn continued to suffer pain
in his lower extremities, especially his left leg.
In July 1998,
his primary care physician referred Clayborn to Dr. James Bean, a
neurosurgeon.
Clayborn first saw Dr. Bean on July 20, 1998, with
complaints about weakness in his lower extremities and lower back
pain radiating down his left foot.
with a limp and used a cane.
At that time, Clayborn walked
Dr. Bean’s review of an MRI taken on
April 22, 1998, indicated a central disc herniation at the LS-S1
level.
Upon examination of Clayborn, his straight leg raising was
positive on the left at 45 degrees with back pain and 60 degrees on
the right.
Sensation was intermittently diminished in the left
foot but not constant.
Clayborn’s knee jerks and ankle jerks were
symmetrical.
On July 31, 1998, Dr. Bean had a myelogram and enhanced
lumbar
spine
impression
of
CT
with
the
intrathecal
myelogram
contrast
suggested
performed.
severe
chronic
His
disc
degeneration at the L5-S1 level and a large ventral extradural
abnormality at the L1-L2 level.
Dr. Bean’s review of the CT scan
revealed a large right paracentral extradural defect at the L1-L2
level composed of both soft tissue and bone that compressed the
thecal sac.
There was severe disc degeneration at the L5-S1 level
-2-
with severe fault arthropathy and obliteration of the nerve root
canals bilaterally with a broad based central disc protrusion.
He
also noticed a mild diffuse annular disc bulge at the L2-L3 level.
However, he found no definite compression of the dural tube or
nerve root.
Dr. Bean recommended physical therapy, but this did
not result in any significant amelioration of Clayborn’s symptoms.
On August 31, 1998, Dr. Bean opined that given the absence of nerve
root compression as opposed to arthritic deterioration, surgical
disc excision or lumbar fusion would not relieve Clayborn’s pain or
restore his ability to return to his prior job.
He recommended
heat treatment and pain medication.
In a deposition taken September 14, 1998, Dr. Bean
testified that he had assessed Clayborn’s medical impairment at 5%
based on the American Medical Association (AMA) Guidelines using
the DRE model.
lifting
no
He recommended restricting Clayborn’s activity to
more
than
15
pounds
frequently
and
35
occasionally and only occasional bending or twisting.
pounds
Dr. Bean
stated that Clayborn’s left leg problems appeared to be caused by
the degenerated disc condition at the L5-S1 level that could have
been exacerbated by the lifting incident on the job.
He felt that
Clayborn was unable to perform heavy manual labor in the coal
industry.
On January 29, 1999, Clayborn filed an application for
resolution of injury claim seeking permanent total disability
benefits.
While awaiting a benefit review conference before an
arbitrator, Clayborn was examined by Dr. Gary McAllister, an
orthopaedic specialist, who had an x-ray taken of his spine.
-3-
Clayborn told Dr. McAllister that he suffered constant back pain,
severe pain and weakness in his left leg.
A physical examination
indicated that Clayborn’s range of motion was 14 degrees of sacral
flexion, 14 degrees of true lumbar flexion, 8 degrees of extension,
and 10 degrees of lateral bending to either side.
His knee and
ankle jerks were one plus bilaterally. His straight leg raising in
the seated position was positive bilaterally, while straight leg
raising in the supine position caused pain at 40 degrees on the
right and left.
either leg.
Dr. McAllister found no decreased sensation in
Based on the x-ray and prior MRI and myelogram, Dr.
McAllister stated that Clayborn had disc herniations at the T12-L1
level, the L1-L2 level, and the L5-S1 level; degenerative disc
disease at the T12-L1 level, the L1-L2 level, the L2-L3 level, and
the L5-S1 level; and retrolisthesis.
Utilizing the AMA Guide for
Permanent Impairment range of motion model, Dr. McAllister assessed
Clayborn’s permanent medical impairment rating at 33% split evenly
(16.5%) between the April 1998 injury and his pre-existing dormant
spinal condition.
Dr. McAllister recommended that Clayborn not
return to his prior job and restrict his activities to lifting no
more than 10 pounds; standing, walking or sitting no more than 3
hours of over an 8 hour day; limited pushing or pulling; no
climbing, balancing or crawling; and only occasional stooping,
kneeling, crouching or bending.
On April 15, 1999, an arbitrator held a benefit review
conference.
The arbitrator found Clayborn permanently totally
-4-
disabled and recommended a vocational rehabilitation evaluation.
On June 1, 1999, R & R Mining requested a hearing before an ALJ.1
On October 6, 1999, the ALJ conducted a hearing with
Clayborn as the only witness. Clayborn testified that he continues
to suffer constant pain and weakness in his lower back and left
leg.
He said that he can sit or stand only approximately 10-15
minutes before experiencing severe pain and has trouble sleeping.
The parties also submitted medical documents from Drs. Bean and
McAllister, Dr. Beans’s deposition and Clayborn’s prior deposition.
The ALJ held that Clayborn was entitled to benefits based on a
permanent
partial
342.730(1)(c)(1).2
disability
He
found
of
Dr.
5.625%
Bean’s
pursuant
testimony
to
KRS
the
most
persuasive on the issue of the appropriate AMA Guidelines medical
impairment rating, and therefore utilized his rating of 5%.
The
ALJ also found that while Clayborn was unable to return to work in
the underground coal mining industry, he was capable of performing
some form of gainful employment within the restrictions recommended
by Dr. Bean.
Finally, the ALJ held that the award should not be
reduced based on the impact of Clayborn’s pre-existing spinal
condition related to the natural aging process.3
On December 20, 1999, Clayborn appealed the decision to
the Board contending the ALJ erred by failing to find that he was
totally occupationally disabled.
On April 14, 2000, the Board
1
See 803 Kentucky Administrative Regulation (KAR) 25:010
Section 12 (1999).
2
The ALJ’s calculation under the statutory formula was 5%
x 75 x 1.5 = 5.625%.
3
See KRS 342.0011(1).
-5-
rendered an opinion affirming the ALJ after concluding that his
decision was supported by substantial evidence.
The Board stated
that the evidence did not compel a finding that Clayborn was unable
to perform any type of work as defined in KRS 342.0011(34).
This
appeal followed.
In a workers’ compensation action, the employee bears the
burden of proving every essential element of a claim.4
As the
fact-finder, the ALJ has the authority to determine the quality,
character, and substance of the evidence.5
Similarly, the ALJ has
the sole authority to determine the weight and inferences to be
drawn from the evidence.6
The fact-finder also may reject any
testimony and believe or disbelieve various parts of the evidence
even if it came from the same witness.7
When the decision of the
fact-finder is against the party with the burden of proof, that
party bears the additional burden on appeal of showing that the
evidence was so overwhelming that it compels a finding in his
favor.8
Compelling evidence has been defined as evidence so
4
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000);
Jones v. Newberg, Ky., 890 S.W.2d 284, 285 (1994); Snawder v.
Stice, Ky. App., 576 S.W.2d 276, 279 (1979).
5
Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993);
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
6
Miller v. East Kentucky Beverage/ Pepsico, Inc., Ky.,
951 S.W.2d 329, 331 (1997); Luttrell v. Cardinal Aluminum Co., Ky.
App., 909 S.W.2d 334, 336 (1995).
7
Magic Coal, 19 S.W.3d at 96; Whittacker v. Rowland,
Ky., 998 S.W.2d 479, 481 (1999); Halls Hardwood Floor Co. v.
Stapleton, Ky. App., 16 S.W.3d 327, 329 (2000).
8
Bullock v. Peabody Coal Co., Ky., 882 S.W.2d 676, 678
(1994); Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986);
(continued...)
-6-
overwhelming that no reasonable person would have failed to be
persuaded by it.9
A claimant with the burden of proof and an
unfavorable decision must do more than show there is some evidence
to support his position.10
As long as the ALJ’s opinion is
supported by any evidence that is not patently unreasonable or
flagrantly
implausible,
different result.11
it
cannot
be
said
that
it
compels
a
Upon review of the Board’s decision, the
appellate court’s function is limited to correcting the Board "only
where the the [sic] 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.12
Clayborn argues on appeal that the ALJ erred in failing
to award him benefits based on a total permanent occupational
disability.
While acknowledging the legal standards of review as
set forth above, he contends that the Board failed to fully
consider
the
differences
between
occupational
disability
and
8
(...continued)
Mosely v. Ford Motor Co., Ky. App., 968 S.W.2d 675, 679 (1998).
9
Bullock, 882 S.W.2d at 678; Neace v. Adena Processing,
Ky. App., 7 S.W.3d 382, 385 (1999); REO Mechanical v. Barnes, Ky.
App., 691 S.W.2d 224, 226 (1985).
10
Special Fund v. Francis, 708 S.W.2d at 643.
11
Whittaker v. Rowland, 998 S.W.2d at 482; Western Baptist
Hospital v. Kelly, 827 S.W.2d 685, 688 (1992).
12
Western Baptist Hospital, 827 S.W.2d at 687. See also
Huff Contracting v. Sark, Ky. App., 12 S.W.3d 704, 707 (2000); Duff
Truck Lines, Inc. v. Vezolles, Ky. App., 999 S.W.2d 224, 227
(1999).
-7-
functional disability. Relying on the case of Osborne v. Johnson,13
Clayborn asserts that the appropriate standard for determining
compensable occupational disability is not solely whether the
claimant is unable to perform any kind of regular employment, but
it also includes the situation where the regular employment in the
kind of jobs claimant is physically capable of performing are
unavailable on the labor market.
Clayborn argues that the severe
restrictions placed on his activities prevent him from being able
to perform any regular employment in the local job market.
suggests
that
his
limited
education,
absence
of
He
vocational
training, and past work history of heavy manual labor in a single
industry (coal) constitute additional limitations on his ability to
find employment.
Both
suffered
Drs.
Bean
some
physical
and
McAllister
impairment
experiencing in his back and leg.
due
found
to
the
that
pain
Clayborn
he
was
Both placed him under some
restrictions on his ability to lift, carry, sit, stand, etc.
Nevertheless, the ALJ stated that he was convinced that Clayborn
could find some form of gainful employment.
Although both Drs.
Bean and McAllister opined that Clayborn was unable to return to
his prior occupation in heavy labor as an underground coal miner,
neither
indicated
that
he
was
incapable
of
performing
less
physically demanding jobs. The ALJ enhanced the award according to
the formula in KRS 342.730(1)(c)(1) based on Clayborn’s inability
to return to his previous employment.
13
Ky., 432 S.W.2d 800 (1968).
-8-
As the Board noted, under the 1996 amendments to the
workers’ compensation statutes in order to establish permanent
total disability, a claimant must prove his condition is due to a
work-related injury, he has a permanent disability rating, and he
has "a complete inability to perform any type of work as a result
of an injury . . . ."14
"Work" is defined as "providing services
to another in return for remuneration on a regular and sustained
basis in a competitive economy."15
Dr. Bean assessed Clayborn’s
condition as a 5% medical impairment utilizing the DRE model under
the AMA Guides, while Dr. McAllister assigned a 33% impairment
rating using a range of motion model.
The DRE model is the
preferred ratings method, and Dr. McAllister did not explain why he
chose to use another method.
Simply stated, the ALJ has discretion in weighing the
evidence and determining the extent of an occupational disability.
Clayborn has failed to show that the evidence compelled a finding
of total disability. His reliance on Osborne v. Johnson, supra, is
misplaced in light of the statutory standards and would not require
a different result in any event.
We conclude that the ALJ did not
misconstrue controlling statutory or case law or err in assessing
the evidence in so flagrant a manner as to cause gross injustice.
Accordingly, the Board did not err in affirming the ALJ’s decision
awarding Clayborn benefits based on a finding of permanent partial
disability, rather than permanent total disability.
14
KRS 342.0011(11)(c).
15
KRS 342.0011(34).
-9-
The
opinion
of
the
Workers’
Compensation
Board
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Otis Doan, Jr.
Harlan, Kentucky
Amanda Anderson Young
HARNED, BACHERT & DENTON
Bowling Green, Kentucky
-10-
is
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
