ISLAND CREEK COAL COMPANY v. ELVA SMITH; SPECIAL FUND; DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
JANUARY 18, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002384-WC
ISLAND CREEK COAL COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-48639
v.
ELVA SMITH; SPECIAL FUND;
DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF AND MILLER, JUDGES.
JOHNSON, JUDGE:
Island Creek Coal Company has petitioned this
Court for review of a Workers’ Compensation Board opinion which
affirmed the Administrative Law Judge’s opinion and award on the
claimant Elva Smith’s motion to reopen his disability claim.
Having concluded that the ALJ’s determination that Smith’s
condition had worsened since his original award in 1993 is
supported by substantial evidence, we affirm.
Smith was employed by Island Creek and suffered a workrelated injury to his back on December 11, 1990.
worked for Island Creek in February of 1991.
Smith last
On December 9,
1992, Smith filed an Application for Adjustment of Claim against
Island Creek and the Special Fund.
On July 13, 1993, the ALJ
rendered an opinion and award in favor of Smith, adjudging him to
be 65% occupationally disabled.
On April 29, 1999, Smith filed a
motion to reopen pursuant to KRS1 342.1252.
On October 11, 1999,
the claim was assigned to an arbitrator who made a Benefit Review
Determination.
On October 19, 1999, Smith filed a request for a
hearing before an ALJ.
The evidence before the ALJ included the
testimony of Smith and the medical reports of Dr. James W.
Templin, Dr. Robert W. Lowe, Dr. Timothy R. Wagner, and Dr.
Dennis H. Halbert.
On April, 24, 2000, the ALJ found in favor of
Smith, and ordered that his monthly award paid by Island Creek
and the Special Fund be increased to a 100% disability.3
On
September 13, 2000, the Workers’ Compensation Board entered an
opinion affirming the ALJ’s award.
This petition for review
followed.
1
Kentucky Revised Statutes.
2
KRS 342.125 reads in pertinent part:
(1)
Upon motion by any party or upon an
arbitrator’s or administrative law
judge’s own motion, an arbitrator or
administrative law judge may reopen and
review any award or order on any of the
following grounds:
. . .
(d)
3
Change 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.
Island Creek and the Special Fund split the payment 50/50.
-2-
A finding of the ALJ on a question of fact will not be
disturbed on appeal if there is substantial evidence to support
it.4 “Substantial evidence has been conclusively defined by
Kentucky courts as that which, when taken alone or in light of
all the evidence, has probative value to induce conviction in the
mind of a reasonable person.”5
This Court’s function in
reviewing the Board’s decision is “to correct the Board only
where the [ ] 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.”6
The issue before this Court is whether there is
substantial evidence to support the finding of the ALJ that
Smith’s condition worsened since his original award in 1993.
Island Creek argues that the ALJ’s finding that Smith’s condition
worsened since 1993 was based solely on the testimony of Dr.
Templin.
Island Creek argues that after reexamining Smith in
1999, Dr. Templin made essentially the same medical finding and
long-term prognosis, thus there was no evidence that Smith’s
condition was worse in 1999 than it was in 1993.
With respect to Dr. Templin’s testimony, the ALJ found:
4
Jackson v. General Refractories Co., Ky., 581 S.W.2d 10, 11
(1979).
5
Bowling v. Natural Resources, Ky.App., 891 S.W.2d 406, 409
(1994)(citing Kentucky State Racing Commission v. Fuller, Ky.,
481 S.W.2d 298, 308 (1972); and Blankenship v. Lloyd Blankenship
Coal Co., Inc., Ky., 463 S.W.2d 62 (1970)).
6
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
-3-
Dr. Templin again examined the Plaintiff on
September 24, 1999. Plaintiff complained of
chronic low back pain with radiation to the
left leg. Physical examination revealed
midline tenderness in the lower lumbar region
and over the left SI joint, reduced range of
motion, and positive straight leg raising.
He diagnosed the Plaintiff with chronic low
back pain syndrome; degenerative lumbar disc
disease; atherosclerotic coronary vascular
disease; peripheral vascular disease;
atypical angina; history of lumbar facet
disease; degenerative lumbar disc disease;
history of BPH; status post TURT; status post
tib/fib pinning; and history of left tip/fib
fracture. He assessed a 10% impairment under
the AMA Guides based upon Plaintiff’s back
condition. Plaintiff had a multiplicity of
additional problems including carpal tunnel
syndrome, angina pectoris, atherosclerotic
coronary vascular disease, atypical angina,
and degenerative lumbar disc disease.
Plaintiff’s condition had substantially
deteriorated since an earlier examination on
February 22, 1993. He restricted the
Plaintiff from any activity requiring
repetitive lifting or carrying; frequent
bending, twisting, kneeling, lifting,
carrying, or climbing; unable to walk and/or
stand for periods greater than one and a half
hours in an eight hour time frame; unable to
sit for periods greater than four hours for
an eight hour time frame; unable to sit for
periods greater than one hour without being
able to change positions and move to the
standing, walking, or lying position; must be
able to lie down for extended periods of time
to reduce pain. Plaintiff is unable to
return to any work at this time.
Island Creek argues that the only medical evidence of
Smith’s condition worsening involved Smith’s non-work-related
ailments: carpal tunnel syndrome, angina pectoris,
atherosclerotic coronary vascular disease, atypical angina, and
degenerative lumbar disc disease.
We believe that the evidence
before the ALJ was sufficient to support his finding that Smith’s
work-related condition had worsened in 1999 from his condition in
1993.
Island Creek places great emphasis on the fact that in
-4-
1993 Dr. Templin assessed Smith at a 15% impairment under the AMA
guidelines whereas his 1999 assessment was a 10% impairment under
the AMA guidelines.
However, in his report, Dr. Templin states:
While I have not seen the Workers’
Compensation settlement, I believe that 65%
is clearly indicative of the functional
impairment rating together with vocational
implications. I believe, in light of that
fact, that Mr. Smith’s condition has
substantially deteriorated at this point. I
believe his vocational impairment is 100%.
In light of this fact, his overall impairment
would be closer to 100% than to the 65%
previously provided.
Thus, the evidence from Dr. Templin was that Smith’s
condition had deteriorated from the 1993 award of a 65%
vocational impairment.
Moreover, the evidence from Dr. Templin
was not the sole basis for the ALJ’s findings.
In his opinion,
the ALJ stated that Smith’s testimony was “very credible
regarding both his pain and restrictions.”
We have reviewed the record and Smith’s testimony.
We
cannot hold that there is not substantial evidence to support the
ALJ’s finding that Smith’s pain had increased significantly since
1993.
We believe of particular importance was Smith’s testimony
that due to his back injury and the numbness it caused in his
legs, he is no longer able to participate in activities with his
family and cannot drive an automobile.
Smith’s level of pain is
something that cannot be measured by reviewing and comparing Dr.
Templin’s reports.
It is clear that the ALJ believed Smith’s
testimony that his pain had increased since 1993 due to the
condition related to his work injury becoming worse.
The Board affirmed this finding and stated:
-5-
In its brief before this Board, Island
Creek sets forth a comparison of the
objective medical findings in the original
claim compared with those on reopening.
While certainly the evidence pointed to by
Island Creek would have supported a dismissal
of the reopening before the ALJ as reviewed
above, that is not the issue on appeal. Dr.
Templin, in his supplemental report,
indicates that Smith is now placed under
greater restrictions than at the time of the
original claim. As found by the ALJ, Smith
himself testified as to his worsening
condition. We must remember that while
medical evidence may be probative on the
issue of occupational disability, it is not
determinative and it is the ALJ’s function to
look at the totality of the circumstances and
the factors of occupational disability
[citations omitted].
We agree with the Board’s conclusion that there is
evidence of record to support both positions.
While a different
ALJ may have made a different finding concerning the degree of
Smith’s occupational disability, as long as the findings of this
ALJ are supported by substantial evidence, the Board and this
Court cannot set those findings aside.7
The ALJ was in the best
position to judge the credibility of Smith and to make a
determination as to whether his increase in pain was due to a
worsening of the original back injury or the other non-workrelated injuries.
As stated in his opinion, the ALJ found Smith
to be persuasive and credible.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
7
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
-6-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, ELVA
SMITH:
Eileen M. O’Brien
Lexington, Kentucky
Glenn M. Hammond
Pikeville, Kentucky
-7-
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.
