WOODLAND HILLS MINING, INC. v. FON McCOY, JR.; SPECIAL FUND; DONNA H. TERRY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: MAY 31, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002453-WC
WOODLAND HILLS MINING, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-95-46404
v.
FON McCOY, JR.; SPECIAL FUND;
DONNA H. TERRY, Administrative
Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, EMBERTON AND KNOPF, JUDGES.
EMBERTON, JUDGE: Two issues are presented in this appeal from an
opinion of the Workers’ Compensation Board: (1) whether the
Administrative Law Judge erred in failing to apply the December
12, 1996, amendments to KRS1 342.125 to the claimant’s motion to
reopen his claim; and (2) whether the evidence supported the
finding of a change in the claimant’s occupational disability.
We affirm.
1
Kentucky Revised Statutes.
In October 1994, Fon McCoy sustained a work-related
injury to his left arm and low back while employed by appellant,
Woodland Hills.
McCoy was awarded benefits for a 25%
occupational disability for these injuries in an award rendered
in 1996.
In that opinion and award, the ALJ also found the
psychiatric problems McCoy was experiencing were work related,
but relied upon testimony from appellant’s psychiatric expert in
concluding that the psychiatric condition was not causing
occupational disability.
On September 12, 2000, McCoy moved to reopen his claim
alleging that both his physical and mental condition had worsened
since the entry of the original award.
In support of his motion,
McCoy supplied records from his treating physician, Dr. D. N.
Patel, who noted increased back pain in stating his opinion that
McCoy’s condition had worsened since the 1996 award.
McCoy also
submitted records from his treating psychiatrist, Dr. David
Forester, who diagnosed a major depression and generalized
anxiety disorder.
Dr. Forester did not specifically address
impairment or change in condition since 1996.
Appellant Woodland Hills offered evidence from two
orthopedic surgeons, both of whom found evidence of symptom
magnification and rejected McCoy’s contention that his condition
had worsened since 1996.
The employer also submitted testimony
from a psychiatrist who was of the opinion that McCoy suffered no
impairment related to his injury and that his complaints were out
of proportion to the injury he had sustained.
Citing the fact
that she had had an opportunity to observe McCoy both in the
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original proceeding and on reopening, the ALJ found his current
claims of constant pain and of a worsened psychiatric condition
to be “entirely credible.”
The ALJ stated that her observation
was borne out by the treatment records of Dr. Forester which
“delineate ongoing treatment for symptoms of depression and
anxiety severe enough to interfere with his personal
relationships and certainly severe enough to prevent him from
functioning in any employment environment.”
Although she noted
that she was adopting Dr. Patel’s expert opinion of a worsening
in McCoy’s physical condition and pain level since 1996, the ALJ
stated that the “most striking” change over the past four years
was in his psychiatric condition.
As a result of these findings
the ALJ concluded that McCoy was now 100% occupationally
disabled.
Woodland Hills appealed the ALJ’s decision to the Board
alleging, as it does in this appeal, that she erred in failing to
apply the 1996 amendments to KRS 342.125 to McCoy’s claim.
The
employer asserted that application of the 1996 amendments would
have required McCoy to show a change in disability by objective
medical evidence and argued that this amendment was a remedial
change which should have been given retroactive effect.
Woodland
Hills also argued that the evidence did not support a finding of
change in McCoy’s occupational disability.
In upholding the
decision of the ALJ, the Board rejected appellant’s contention
that the 1996 amendments to the reopening statute were remedial
and stated that although the evidence of change in occupational
disability might be considered to be “somewhat slim,” the record
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did not contain sufficient evidence to support the findings of
the ALJ.
We find no error in the Board’s analysis.
First, as to the contention the 1996 amendments to KRS
342.125 were remedial, the Board correctly recognized the
distinction to be drawn between the purpose of the 1996
amendments and the 1987 amendments to the same statute addressed
in Peabody Coal v. Gossett.2
The Peabody court stated that the
purpose behind the 1987 amendment was to bring the standards for
reopening in line with the standards for original awards; in
words of the Board, “they were designed to correct imperfections
in the prior law.”
The Board noted that the 1996 amendments, on
the other hand, were part of a general overhaul of the benefits
system created by sweeping 1996 legislation and therefore could
not be considered remedial.
We are convinced that the Board’s conclusion as to
effect of the 1996 amendments to KRS 342.125 fully comports with
the Supreme Court’s analysis of the nature of the 1996 amendment
to KRS 342.732(1)(a), in Zielinski Construction Company v.
Burden,3 which provided the following guidance as to the purpose
of that enactment:
Unlike the 1994 amendment to KRS
342.732(1)(a) that was at issue in Thornsbury
v. Aero Energy, Ky., 908 S.W.2d 109 (1995),
the 1996 amendment changed the medical
criteria for awarding a RIB in addition to
changing the remedy, itself. We determined
that the amendment that was at issue in
Thornsbury was remedial because it adopted a
remedy that would more effectively accomplish
2
Ky., 819 S.W.2d 33 (1991).
3
Ky., 62 S.W.3d 14, 15 (2001).
-4-
the purpose of the RIB. Id. at 112.
Thornsbury is not persuasive authority for
the proposition that the 1996 amendment to
KRS 342.732(1)(a) was remedial.
We are convinced that the Board properly distinguished Gossett,
supra, on the same grounds.
Finally, we are in complete accord with the Board’s
discussion of the substance of the evidence before the ALJ and
her authority to determine the weight, credibility, substance,
and inferences to be drawn therefrom.4
We also agree with the
Board that the fact a claimant may overstate his case in the
original claim should not forever bar an increase in benefits if
his occupational disability in fact increases.
In sum, our
review of this record convinces us that the Board’s opinion is
not patently unreasonable nor flagrantly implausible, nor is
there any indication that the decision will result in a gross
injustice.5
The opinion of the Workers’ Compensation Board is
affirmed.
4
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418
(1985).
5
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685
(1992).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE FON McCOY,
JR.:
W. Barry Lewis
LEWIS AND LEWIS LAW OFFICES
Hazard, Kentucky
Thomas W. Moak
STUMBO, MOAK & NUNNERY, P.S.C.
Prestonsburg, Kentucky
BRIEF FOR APPELLEE SPECIAL
FUND:
John Burrell
Frankfort, Kentucky
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