JAMES TRACEY DEATON v. NALLY & HAYDON, LLC; HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 12, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000807-WC
JAMES TRACEY DEATON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-69968
NALLY & HAYDON, LLC;
HON. ROGER D. RIGGS, ADMINISTRATIVE
LAW JUDGE; AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JOHNSON, GUIDUGLI AND HUDDLESTON, JUDGES.
JOHNSON, JUDGE:
James Tracey Deaton has filed a petition for
review from an opinion by the Kentucky Workers’ Compensation
Board entered on March 14, 2001.
The Board affirmed an opinion
and award rendered by the Hon. Roger D. Riggs, Administrative Law
Judge, that found Deaton to have a five percent permanent partial
occupational disability and awarded Deaton $20.33 for 425 weeks;
ordered Deaton to be evaluated for occupational rehabilitation
and awarded medical benefits for injuries suffered while employed
by Nally & Haydon, LLC.
Having concluded that the Board has not
overlooked or misconstrued controlling law or committed an error
in assessing the evidence so flagrant as to cause gross
injustice,1 we affirm.
In July 1993, Nally, which operates several rock
quarries, hired Deaton as a haul back truck driver and a welder.
Subsequently, Nally promoted Deaton to the position of crusher
operator.
As part of his duties, Deaton performed routine
maintenance, including welding, on Nally’s equipment.
On July
26, 1999, while he was using a cutting torch on a piece of steel,
Deaton tripped over an I-beam, fell backwards approximately three
feet and landed on the left side of his lower back and buttocks.
Deaton reported this accident to his immediate supervisor.
He
also claimed that he immediately experienced pain in his low back
and left leg.
Deaton left work that day and never returned.
After his injury, Deaton immediately sought medical
treatment from his family physician, Dr. William Collins.
Dr.
Collins referred Deaton to Dr. G. Christopher Stephens for
treatment.
Dr. Stephens treated Deaton from September 14, 1999,
to January 7, 2000.
Dr. Stephens diagnosed Deaton with
degenerative disc disease at L4-L5 and L5-S1 and mid-line annular
tear at L4-L5.
Dr. Stephens assessed Deaton to have a five
percent whole body impairment, according to the American Medical
Association Guides to Evaluation or Permanent Impairment (AMA
Guides), although he opined that half of that was due to a preexisting degenerative disc disease, a condition of natural aging.
On January 7, 2000, Dr. Stephens released Deaton to return to
work with no restrictions.
1
Daniel v. Armco Steel Co., Ky.App., 913 S.W.2d 797, 798
(1995).
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On September 27, 1999, at the request of Dr. Stephens,
Dr. Robert A. Davis performed a magnetic resonance imaging (MRI)
examination upon Deaton.
As a result of the MRI, Dr. Davis found
that Deaton had a mild degenerative disc at L3-L4 and L4-L5; the
L4-L5 disc space narrowed by facet overgrowth on the left side
and there was a very slight central protrusion at L4-L5.
Dr.
Davis did not assess an impairment rating in accordance with the
AMA Guides.
On May 18, 2000, at the request of Dr. Collins, Dr.
Thomas Sweasy examined Deaton.
Dr. Sweasy reviewed the results
of the MRI and the results of a CT scan and diagnosed Deaton with
low back pain and lower extremity pain.
Dr. Sweasy assessed
Deaton under the AMA Guides to have a five percent permanent
whole body impairment.
Dr. Sweasy opined that Deaton could
return to the work he performed prior to his injury with the
restrictions of no lifting greater that 30 pounds and no repeated
bending or lifting.
On June 8, 2000, at the request of Deaton’s attorney,
Dr. James Templin examined Deaton.
Dr. Templin diagnosed Deaton
with chronic low back pain syndrome; left leg radiculopathy;
lumbar disc tear at L4-L5; degenerative lumbar disc disease; disc
herniation at L4-L5; recess stenosis at L4-L5 and lumbar facet
disease.
Dr. Templin assessed Deaton to have a 20 percent
permanent whole body impairment, and opined that he was unable to
return to the type of work he performed prior to his injury.
Templin suggested work restrictions of no activities requiring
Dr.
prolonged walking, standing, bending, stooping, kneeling,
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lifting, carrying, climbing or riding in vibratory vehicles for
extended time or distance.
Deaton filed a workers’ compensation claim against
Nally that proceeded to hearing on August 28, 2000, in front of
ALJ Riggs.
On October 26, 2000, the ALJ handed down his opinion
and award.
The ALJ found Deaton to have a five percent permanent
partial occupational disability and awarded Deaton $20.33 per
week for 425 weeks.
The ALJ found that Deaton was unable to
perform the work for which he had prior training or experience
and ordered Deaton to be evaluated for occupational
rehabilitation.
Deaton appealed the ALJ’s opinion and award to
the Workers’ Compensation Board.
The Board affirmed the ALJ, and
this petition followed.
Deaton presents one issue on appeal: whether the ALJ
erred as a matter of law by not finding him permanently and
totally disabled.2
Deaton argues that the ALJ’s findings are
inconsistent with the evidence presented and that the evidence
compels that he should have been found permanently and totally
disabled.
Deaton contends that since the ALJ agreed with Dr.
Templin that he was unable to return to the type of work he
performed prior to his injury, the ALJ erred by failing to find
that Deaton was permanently and totally disabled.
Deaton also
contends that since the ALJ ordered him to be evaluated for
occupational rehabilitation, then he must be permanently and
2
Deaton also argued in his petition that the ALJ erred by
failing to award a disability higher than five percent. However,
this issue has not been preserved for our review since the only
issue Deaton argued before the Board was that the ALJ erred by
not awarding him a total permanent disability.
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totally disabled at least until he has been successfully
rehabilitated.
We disagree.
As the claimant, Deaton bore the burden of proof before
the fact-finder, the ALJ.3
Since Deaton, as the claimant,
appealed from both the ALJ and the Board, our standard of review
is whether the evidence was so overwhelming, upon review of the
entire record, to have compelled a finding in the claimant’s
favor.4
Further, the ALJ, not the Board and not this Court, had
the sole discretion "to determine the quality, character, and
substance of evidence."5
As fact-finder, the ALJ may choose to
believe or disbelieve any part of the evidence presented,
regardless of its source.6
According to the record provided, Dr. Stephens, who
provided the majority of Deaton’s treatment, opined that under
the AMA Guides Deaton was only five percent whole body impaired.
Further, Dr. Stephens concluded that one half of Deaton’s
impairment was due to a pre-existing degenerative disc disease
caused by the natural aging process.
Also, Dr. Sweasy, who also
examined Deaton at the request of his family physician, opined
that Deaton was only five percent permanent whole body impaired.
Only Dr. Templin, who examined Deaton at the request of his
3
Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735
(1984); see Whittaker v. Rowland, Ky., 998 S.W.2d 479 (1999).
4
Id.; see Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985); Special Fund v. Francis, Ky., 708 S.W.2d 641
(1986); and Snawder v. Stice, Ky.App., 576 S.W.2d 276 (1979).
5
Whittaker, supra at 481 (quoting Paramount Foods supra);
see Snawder, supra.
6
Whittaker, supra at 481 (quoting Caudill v. Maloney’s
Discount Stores, Ky., 560 S.W.2d 15, 16 (1977)).
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attorney but did not treat him, opined a different and greater
impairment rating.
To prevail on appeal, Deaton must show that the
evidence presented to the fact-finder, the ALJ, was so
overwhelming that the ALJ’s finding against him was unreasonable,
and the evidence compelled a finding in his favor.7
As fact-
finder, the ALJ had sole discretion to weigh all the evidence
presented.
Further, the ALJ has the sole responsibility to take
the medical evidence as to percentage of impairment and translate
it into percentage of disability.8
As stated above, the ALJ can
choose to believe or disbelieve all or part of any witness’
testimony.
After reviewing the record, the ALJ obviously found Dr.
Stephens and Dr. Sweasy more credible than Dr. Templin and relied
upon their opinion as to Deaton’s percentage of impairment.
The
fact that the ALJ agreed with Dr. Templin regarding Deaton’s
inability to return to his prior work does not mean that the ALJ
endorsed Dr. Templin’s opinion as to percentage of impairment.
Also, we agree with Nally and the Board that under the current
definition of “permanent total disability” no special weight is
given to the claimant’s former employment.9
Given the evidence,
the ALJ’s opinion and award was reasonable and was supported by
substantial evidence.
Furthermore, while Deaton presented
evidence that may support a contrary conclusion, he presented no
7
Francis, supra at 643.
8
Kilgore v. Goose Creek Coal Company, Ky., 392 S.W.2d 78, 79
(1965).
9
KRS 342.001(11)(c).
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evidence that overwhelmingly compelled a contrary conclusion.
Absent such evidence, we cannot and will not substitute our
judgment for that of the ALJ’s regarding the weight and character
of the evidence as to questions of fact.10
Deaton also argues that since the ALJ ordered him to be
evaluated for occupational rehabilitation, he must have been
permanently and totally disabled, at least until he has been
successfully rehabilitated.
We disagree.
To be entitled to
occupational rehabilitation, Deaton must be unable to perform his
prior work; but there is no requirement that he be permanently
and totally disabled.11
Finding that Deaton was unable to return
to his prior work, the ALJ appropriately ordered Deaton to submit
to occupational rehabilitation.
The ALJ acted within the scope
of KRS 342.710 and within his discretion.
Since Deaton presented no evidence that compelled a
contrary conclusion, we cannot substitute our judgment for the
ALJ’s; therefore, we are compelled to affirm the opinion of the
Board which affirmed the opinion and award of the ALJ.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald G. Polly
Whitesburg, Kentucky
John S. Harrison
Louisville, Kentucky
10
Whittaker, supra.
11
Edwards v. Bluegrass Containers Division of Dura
Containers, Inc., Ky.App., 594 S.W.2d 900, 902 (1980).
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