DAVID RANDALL OUSLEY v. SUN GLOW COALS, INC.; HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE; SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED: MAY 10, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002395-WC
DAVID RANDALL OUSLEY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-88-05046
SUN GLOW COALS, INC.; HON. J. KEVIN
KING, ADMINISTRATIVE LAW JUDGE;
SPECIAL FUND; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, HUDDLESTON, AND McANULTY, JUDGES.
McANULTY, JUDGE: This matter is before us on a petition for
review of an opinion of the Workers’ Compensation Board (Board)
affirming an opinion and award of an Administrative Law Judge
(ALJ).
Appellant contends that the ALJ and the Board erred in
denying his reopening of a prior Opinion and Award awarding 60%
occupational disability.
We disagree.
Hence, we affirm.
The opinion filed by the Board carefully and thoroughly
analyzes the law and facts of this case.
We have examined said
opinion under the requirements of Western Baptist Hospital v.
Kelley, Ky., 827 S.W.2d 685, 687 (1992).
As we cannot improve
upon the Board’s written opinion we adopt their reasoning as our
own.
The Board stated in pertinent part:
Ousley filed a motion to reopen his
workers’ compensation claim on November 20,
2000. Ousley claimed that since the time of
his original award, his condition had
deteriorated and he suffered from an increase
in his occupational disability. In support
of his reopening, he relied on the medical
evidence of Dr. Christa Muckenhausen and Dr.
Rondal E. Goble, both treating physicians.
Sun Glow countered with medical evidence from
Dr. Robert P. Goodman and Dr. Russell Lee
Travis, both evaluating physicians. Also
contained in the record is the medical
evidence introduced in the original claim.
Ousley testified by deposition and
at his hearing on reopening. He testified he
had not worked since January 28, 1988, the
date of his work injury. He stated he sees
Dr. Goble twice a month for pain medication.
According to Ousley, his back pain is worse,
he takes more medication, and he cannot sleep
or do things he was normally able to do. He
testified he could not drive for more than
five miles and he can no longer participate
in sports. Ousley testified he has to have
help taking a shower. Ousley was questioned
concerning his capabilities at the time of
his original award. In the original claim he
testified he did not do much other than get
out of the chair when he was not in bed. He
testified he could not drive at all and could
not ride in a car for more than five to six
miles. He testified his wife had to help him
bathe and there were some nights where he had
trouble sleeping. Before his original award,
Ousley testified he did not know of any work
he could perform.
In a letter dated March 12, 1997,
Dr. Gobel opined that Ousley continued to
have significant problems with his lower back
with pain and stiffness, especially with pain
into his left hip. He was currently being
prescribed Elavil, Valium, and Loritab. Dr.
Goble opined Ousley had not progressed and
had actually regressed in some capacity. He
felt Ousley remained totally occupationally
disabled.
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Dr. Muckenhausen, in a report dated
September 26, 2000, rendered the following
diagnoses concerning Ousley’s back condition:
(1) status post low back injury, secondary to
work-related incident on 1/28/88, with
progressive degenerative disc disease and
osteoarthritis, as well as lumbosacral
radicular component, maximally left and (2)
sleep disturbance, anxiety, and depression in
context with chronic pain syndrome since
injury on 1/28/88. She recommended a repeat
MRI of the lumbar spine. She found
tenderness on palpation in the lower thoracic
and lumbosacral spine areas. She noted toe
and heel gait was difficult and balancing on
left leg was more difficult than on the
right. She further found tandem gait was
difficult.
In a supplemental report dated
April 20, 2001, Dr. Muckenhausen opined
Ousley’s condition had worsened since her
first evaluation because of (1) increased
complaints of low back pain radiating into
both legs, maximally left, with more flareups of severe pain and (2) objective findings
include increased muscle spasms and trigger
points, further decreased range of motion,
depressed reflexes and sensory changes. She
concluded he had a worsening of his condition
as a result of the January 28, 1988 injury
which resulted in greater occupational
disability since September 18, 1989. Dr.
Muckenhausen noted that an MRI taken April 3,
2001 revealed herniated discs at L4-5 and L5S1. She assessed a 15% to 16% impairment to
the body as a whole pursuant to the AMA
Guides and would limit Ousley to a maximum
ten pound lifting restriction with lifting
less than ten pounds frequently. She further
would limit him to standing or sitting less
than one to two hours per day. Attached to
Dr. Muckenhausen’s report was the April 3,
2001 MRI report from Lexington Diagnostic
Center signed by Dr. George Privett.
Dr. Robert Goodman evaluated
Ousley, both prior to the original award and
on reopening. He made the same diagnosis on
reopening as before the original award of
pre-existing aging, degeneration, with
arousal. He found that since the injury
Ousley still had symptoms of magnification
and nothing really objective. Dr. Goodman
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thought his present complaints were related
to aging and deconditioning, rather than to
his injury twelve years ago. He could not
note any objective evidence of worsening.
His opinion remained the same, either under
the third or fourth edition of the Guides,
believing Ousley had a maximum impairment of
5%, half due to arousal. He felt Ousley’s
only restriction would be a fifty pound
lifting limitation.
Dr. Russell Travis evaluated Ousley
on February 2, 2001. He also reviewed both
the medical evidence presented in the
original claim and on reopening. His
impression was chronic low back pain and left
lower extremity pain since January 28, 1988.
He found absolutely no objective findings on
examination and thought there was evidence of
overt and gross symptom magnification.
Likewise, he found absolutely no imaging
studies on which to base any objective
findings as to whether or not Ousley’s
condition had progressed. He found that by
Ousley’s own description, there was
absolutely no change in his pain and
disability since 1988. Dr. Travis itemized
the indicators of what he found to be gross
symptom magnification. Dr. Travis concluded
there was absolutely no evidence on
examination of objective findings that would
indicate any reason for worsening. He was
astonished that Ousley received a 60%
occupational disability when he never had a
lumbar MRI. He noted the previous award was
based on simple bulging disc at L5-S1 and
apparently some mild degenerative changes at
L5-S1. Dr. Travis strongly recommended
Ousley have a lumbar MRI to see if there were
any significant degenerative changes and
progression. Based on the Fifth Edition of
the AMA Guides, he assessed a 5% impairment
to the body as a whole.
A lumbar MRI was performed on April
3, 2001 and after reviewing the MRI, Dr.
Travis rendered an addendum to his original
report dated May 15, 2001. It is the filing
of this addendum to which Ousley objects and
has filed a motion to strike. In any event
after reviewing the MRI, Dr. Travis opined it
was essentially normal. He found no evidence
of a herniated disc or nerve root entrapment
either on examination or by recent lumbar
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MRI. The MRI made no change in his initial
impairment rating of 5%. In fact, Dr. Travis
opined there was a strong argument that
Ousley fit the 0% impairment rating.
The procedure concerning the
introduction of the addendum to Dr. Travis’
report is as follows: The April 3, 2001 MRI
report was attached to the April 30th
supplemental report of Dr. Muckenhausen. The
benefit review conference was held on May 7,
2001. Apparently, there was an oral motion
by Sun Glow at the benefit review conference
for an extension of proof time in which to
obtain the actual film of the MRI scan
referred in Dr. Muckenhausen’s report and to
have the same interpreted by Dr. Travis. At
any rate, at the final hearing held on May
22, 2001, there was further discussion
concerning extensions of time for obtaining
the report of Dr. Travis. The ALJ indicated
the record would be left open for update of
Dr. Travis’ report, at least to the date of
the June 14, 2001 submission. Attorney for
Ousley stated that if he had a specific
problem with the report, he would file a
written objection at that time. Dr. Travis’
report was filed May 31, 2001. Ousley filed
a motion to strike on June 4, 2001 wherein he
averred that the ALJ gave no leave to
supplement the record after the final hearing
and therefore Dr. Travis’ report should be
stricken from the record. He requested, in
the alternative, that the ALJ should note the
radiologist who read the MRI film read the
test as abnormal. He argued that Dr. Travis’
opinion that everyone has an abnormal MRI
represents an obvious bias against injured
workers. The ALJ overruled the motion to
strike in an order rendered June 20, 2001.
The ALJ, in an opinion rendered
June 20, 2001, dismissed Ousley’s reopening.
In his opinion, he reviewed the lay and
medical testimony on reopening, as well as
evidence from the original claim. He noted
specifically the May 15, 2001 addendum to Dr.
Travis’ report. He reviewed Dr. Travis’
findings as follows:
Dr. Travis stated that he reviewed
Ousley’s 4/3/01 MRI film, which
revealed no nerve root compromise,
no evidence of decreased disc
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space, and a small central bulge at
L4-5 and L5-S1. Based on these
findings, Dr. Travis stated that
Ousley’s condition has not changed
and that the limited abnormal
findings are of no significance.
He reiterated that Ousley has, at
most, a 5% impairment, and stated
that ‘there is a strong argument
that (Ousley) fits in the DRE
Lumbosacral Category I with 0%
impairment in the absolute absence
of objective findings.’
The ALJ found most persuasive the
opinions of Drs. Goodman and Travis and, as
stated, therefore dismissed Ousley’s
reopening.
On appeal, Ousley first argues the
ALJ committed an abuse of discretion by
allowing the filing of Dr. Travis’
supplemental report after the date of the
hearing. He contends the record shows the
employer was allowed up to the date of the
final hearing to supplement the report of Dr.
Travis. Ousley contends that Dr. Travis’
opinion that there was no objective medical
evidence is inconsistent and highly
prejudicial. He argues the record contains
no specific motion for extension of time, no
order allowing for the extension of time, and
no order allowing rebuttal on his part.
As pointed out by Sun Glow, the ALJ
actually gave the employer up to the date of
submission, June 15, 2001, in which to
supplement the record. This was discussed at
the hearing held on May 22, 2001. Dr.
Travis’ supplemental report was filed May 31,
2001. Ousley filed a motion to strike June
4, 2001 that was overruled by the ALJ in an
order rendered June 20, 2001.
Having reviewed the procedures,
arguments of counsel, and applicable case
law, we disagree with Ousley that the ALJ
abused his discretion by allowing the filing
of the supplemental report of Dr. Travis. As
pointed out by Sun Glow, it was agreed at the
hearing that the employer would have until
the date of submission to file Dr. Travis’
supplemental report. It was not until Ousley
had a chance to read the report that he
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objected to the filing of it. Clearly,
Ousley could have objected to the extension
of time for evidence at the hearing, but he
failed to do so. As argued by Sun Glow, this
constituted a waiver of the objection of the
extension. See, Department of Highways v.
Porter, Ky., 388 S.W.2d 366 (1965).
Notwithstanding the fact that
Ousley has, in effect, waived any objection
to the introduction of Dr. Travis’ records,
we believe the ALJ did not commit an abuse of
discretion in allowing the introduction of
the supplemental report into evidence. It is
well settled that the ALJ has the authority
to control the taking of evidence before him.
Searcy v. Three Point Coal Co., Ky., 134
S.W.2d 228 (1939). The ALJ, within his
discretionary powers, could have denied the
introduction of the medical report, however,
there is a substantial difference between
what the ALJ may do and what he is required
to do by law. See, Cornett v. Corbin
Materials, Inc., Ky., 807 S.W.2d 56 (1971)
and Snawder v. Stice, Ky. App., 576 S.W.2d
276 (1979). In this case, the ALJ’s decision
to allow the introduction of the evidence
does not constitute an abuse of discretion
and it was not an arbitrary action, nor a
capricious disposition under the
circumstances. See, Kentucky Nat. Park Com’n
v. Russell, 301 Ky. 187, 191 S.W.2d 214
(1945). Rather, we believe the consideration
of Dr. Travis’ report simply goes to the
weight of evidence. That brings us to
Ousley’s second argument that the ALJ’s
dismissal of his reopening was not based on
substantial evidence. The ALJ, in his
opinion, noted Dr. Travis’ opinion in his
addendum that the MRI revealed no root
compromise and no evidence of decreased disc
space. Instead Dr. Travis found a small
central bulge at L4-5 and L5-S1. As argued
by Ousley, the MRI report, as well as Dr.
Muckenhausen’s findings characterize the
findings as herniated discs. In any event,
it is well established that it is within the
discretion of the ALJ to believe or
disbelieve the medical evidence of his choice
when it is conflicting. Pruitt v. Bugg
Brothers, Ky., 547 S.W.2d 123 (1977) and
Caudill v. Maloney’s Discount Stores, Ky.,
560 S.W.2d 15 (1977). Clearly, Dr. Travis’
evidence, along with Dr. Goodman’s evidence,
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as well as that of the claimant himself
indicating that his complaints are much the
same now as they were before the original
award, constitutes substantial evidence upon
which the ALJ could base his decision.
Therefore, we are without authority to find
otherwise. Special Fund v. Francis, Ky., 708
S.W.2d 641 (1986).
Accordingly, the decision by Hon.
J. Kevin King, Administrative Law Judge, is
hereby AFFIRMED and the appeal by David
Randall Ousley is DISMISSED.
The Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE SUN GLOW
COALS, INC.:
Thomas W. Moak
Stumbo, Moak & Nunnery, P.S.C.
Prestonsburg, Kentucky
J. Gregory Allen
Riley & Allen, P.S.C.
Prestonsburg, Kentucky
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel D. Zakem
Frankfort, Kentucky
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