JAMES LESTER CARR v. HARLAN-CUMBERLAND COAL COMPANY; DONALD G. SMITH, Administrative Law Judge; and WORKER'S COMPENSATION BOARD
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RENDERED:
DECEMBER 28, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-000497-WC
JAMES LESTER CARR
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-70623
v.
HARLAN-CUMBERLAND COAL COMPANY;
DONALD G. SMITH,
Administrative Law Judge; and
WORKER’S COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI, HUDDLESTON and JOHNSON, Judges.
HUDDLESTON, Judge:
James Lester Carr appeals from a Workers’
Compensation
opinion
Board
Administrative
Law
Judge
that
affirmed
granting
Carr
a
a
decision
20%
by
an
occupational
disability award as the result of injuries he sustained on November
20, 1996, while working for Harlan-Cumberland Coal Company.
Carr was working in his capacity as a continuous miner
operator when a severe explosion occurred in the section of the
mine in which he was working.
He sustained multiple injuries and
was also marked permanently when small pieces of coal from the
explosion lodged under his skin.
After being buried for nearly an
hour, Carr was rescued by emergency technicians and was transported
to a hospital where he underwent a number of medical procedures,
including extensive surgery to his left knee and right leg.
Carr
was transferred to Holston Valley Hospital in Holston Valley,
Tennessee, the following day.
Although he was no longer physically capable of working
underground in his previous capacity, Carr returned to work in a
position outside of the mines on January 7, 1997.
His new duties
included ordering parts, answering the telephone and keeping track
of the reports prepared by mine inspectors.
Since August 1997,
Carr has worked in the repair shop, primarily repairing continuous
miners.
Carr does not believe he can return to the same working
activities since he has a loss of grip strength and fine motor use
of his right hand and, as a result of the injuries to his lower
extremities, has difficulty squatting, climbing, walking, standing
and lifting.
According to the medical evidence, Carr suffered an
injury to the right medial epicondyle as well as an open fracture
of the right fibula.
He also sustained a fractured nose, a
concussion and extensive soft tissue damage to both legs with a
right lateral meniscal tear, and endured skin grafts on both legs
and the left elbow.
Due to the extent of his injuries, Carr is
limited in his activities, particularly those involving the lower
extremities and right arm.
Dr. Templin assigned a 10% impairment
to the body as a whole (5% due to the bilateral skin grafts),
estimating that Carr suffers from a chronic pain condition 50% to
-2-
75% of the time which would ultimately interfere with his ability
to engage in daily activities.
Consistent with this finding, Dr.
Klinar determined that an 11% impairment was appropriate, stating
that Carr continues to suffer from knee pain primarily in the
patella
and
femur,
and
concluded
that
additional
intervention would be unlikely to benefit Carr.
operative
Both physicians
concluded that Carr would be unable to return to any activity which
would require crouching, kneeling, stooping, bending, squatting,
lifting, carrying or any activities which would require repetitive
use of the right arm for pushing, pulling, lifting, twisting and
turning.
Dr. Morfesis was neither asked nor gave an impairment
rating.
On May 9, 1997, Carr filed an application for resolution
of an injury claim alleging disability as a result of the explosion
on November 20, 1996.
The case was assigned to an arbitrator.
After a benefit review determination on August 29, 1997, the
arbitrator awarded Carr a 20% occupational disability noting that
Carr had returned to work at the same or greater wage than he had
at the time of his injury, and, accordingly, his percentage of
disability
was
governed
by
Kentucky
Revised
Statutes
342.730
(1)(b).
Multiple issues were presented to the ALJ, only one of
which, the percentage of occupational disability, is pertinent at
this stage.
After considering the evidence presented, the ALJ
concluded that Carr had a 20% occupational disability as a result
of the injury.
The ALJ noted Carr’s testimony that although he
continues to work at an equal or greater wage, he works less
-3-
overtime and no longer receives a production bonus due to the
change in his job classification.
The ALJ indicated that despite
Carr’s testimony, he failed to present evidence of his post-injury
earnings, making a determination of his post-injury average weekly
wage impossible.
The ALJ further concluded that Carr had the
burden of proof to establish his post-injury wage and he failed to
show that he was earning less now than he was at the time of his
injury.
Therefore, Carr was limited to no more than twice the
impairment rating pursuant to the then existing Kentucky Revised
Statutes (KRS) 342.730.
Accordingly, the ALJ ordered that Carr
receive permanent partial disability benefits in the amount of
$62.39 a week beginning January 9, 1997, and continuing for a
period of no more than 425 weeks.
Carr was also awarded total
disability benefits in the amount of $415.94 per week for the
period from November 21, 1996, through January 7, 1997.
Carr filed a petition for reconsideration pursuant to KRS
342.281 noting that 803 Kentucky Administrative Regulations (KAR)
25:010 Sec.19 establishes that whenever wages are at issue the
employer is required to file an AWW-1 (average weekly wage form).
Subsequently, the ALJ entered an order sustaining the petition for
reconsideration to the extent that Carr was awarded occupational
disability benefits in the amount of 20% without considering the
limits of KRS 342.730 (1)(b).
Carr filed a notice of appeal to the Board.
His appeal
was held in abeyance while the case was remanded to the ALJ for
consideration of an outstanding petition for reconsideration.
In
the interim, Harlan-Cumberland filed a motion to reopen and an
-4-
amended
motion
to
reopen
in
order
to
contest
medical
associated with Carr’s treatment for a back condition.
bills
The ALJ
denied the motions finding that the contested medical expenses were
work-related. In due course, the Board affirmed the ALJ’s decision
and Carr appealed to this Court.
The only issue on appeal to the Board related to the
limitation
of
the
award
to
a
20%
occupational
disability.
Initially, the Board observed that Carr inadvertently misstated in
his brief that the ALJ erred in reducing his benefits by one half.
Since the ALJ did not reduce Carr’s benefits by half, we join in
the Board’s assessment of this contention.
Likewise, the Board is
correct in its evaluation of the applicability of KRS 342.730
(1)(c).
Carr’s injury occurred before December 12, 1996, thereby
rendering that section inapplicable as it was not in effect at the
time.
The Board went on to note that the ALJ did not apply that
provision.
Although the ALJ did seem to indicate in one part of
his opinion that he was applying the twice functional impairment
factor, the Board correctly stated that any question derived from
that
finding
was
resolved
by
the
ALJ
upon
petition
for
reconsideration.
In Millers Lane Concrete Co., Inc. v. Dennis,1 this Court
held that if there is any evidence of substance to support the
ALJ’s findings, we must sustain them. If, however, there is no
evidence of substance to support the findings, they are arbitrary
and must be reversed.
In this case, there was evidence of
substance to support the ALJ’s findings.
1
Ky. App., 599 S.W.2d 464, 465-66 (1980).
-5-
The claimant in a workers’ compensation claim has the
burden of proof and risk of persuasion, and if unsuccessful, the
question on appeal is whether the evidence is so overwhelming upon
consideration of the record as a whole as to compel a finding in
favor.2
claimant’s
Compelling
evidence
is
that
which
is
so
overwhelming that no reasonable person could reach the conclusion
reached by the ALJ.3
The ALJ clarified the basis for his holding
following the filing of the petition for reconsideration when he
unequivocally stated that the limitations of KRS 342.730 (1)(b) did
not play a part in his decision.
It is beyond dispute that fact finding authority and the
assessment of occupational disability in accordance with the record
rests solely with the ALJ.4
In support of its belief that the ALJ
reached his ultimate conclusion without regard to the pre- and
post-injury wage question, the Board refers to the discussion of
the standard the ALJ used in determining Carr’s occupational
disability in the original claim.
The record reveals that the ALJ
reviewed the evidence and took into account Carr’s age, education
and physical limitations, relying upon Osborne v. Johnson,5 to
conclude that Carr had a 20% occupational disability.
For this
reason, the Board did not feel that a genuine issue existed in the
appeal before it.
2
See Wolf Creek Collieries v. Crum, Ky. App., 673 S.W.2d 735
(1984); Snawder v. Stice, Ky. App., 576 S.W.2d 276 (1979).
3
REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224 (1985).
4
See Wolf Creek Collieries, Inc., supra; Millers Lane
Concrete Co., Inc., supra; KRS 342.285.
5
Ky., 432 S.W.2d 800 (1968).
-6-
The
Board
gave
appropriate
deference
resolution as required by relevant case law.
finder,
has
credibility,
evidence.6
the
sole
substance
authority
and
to
inferences
the
ALJ’s
The ALJ, as fact-
determine
to
to
be
the
drawn
weight,
from
the
The ALJ may choose to believe parts of the evidence and
disbelieve other parts, even when it comes from the same witness or
the same party’s total proof.7
It is intentionally difficult to
meet this standard and, while the Board went on to elaborate on the
reasons which further support its affirmation of the ALJ’s decision
with which we are inclined to agree, the discussion is unnecessary
as we cannot say that the ALJ was presented with evidence which
compelled a different result.
Accordingly, the Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christy L. Muncy
LAW OFFICE OF KENNETH A.
BUCKLE
Hyden, Kentucky
Denise M. Davidson
BARRET, HAYNES, MAY, CARTER &
ROARK, P.S.C.
Hazard, Kentucky
6
Paramount Foods, Inc., v. Burkhardt, Ky., 695 S.W.2d 418
(1985).
7
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15
(1977).
-7-
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