MICHAEL HOSKINS v. LEECO, INC.; W. BRUCE COWDEN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: JUNE 14, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-002661-WC
MICHAEL HOSKINS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NOS. WC-00-89774 and WC-84-38210
v.
LEECO, INC.; W. BRUCE COWDEN,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI and HUDDLESTON, Judges.
HUDDLESTON,
Judge:
Michael
Hoskins
appeals
from
a
Workers’
Compensation Board opinion affirming an administrative law judge’s
decision finding that he failed to sustain his burden of proof to
establish an increase in his occupational disability as the result
of a worsening of his condition related to a work-related shoulder
injury he suffered in 1984.
The Board also affirmed the ALJ’s
finding that the injury to Hoskins’s anterior cruciate ligament
(ACL) is not related to a work event.
Hoskins, now 45 years of age, has a tenth grade education
with no specialized training. He began working for Leeco in August
1981.
Since that time, he has performed a variety of jobs, most
recently working as a supply man operating a motor.
employment
as
an
underground
coal
miner,
Hoskins
carpentry and manual labor for a brief period of time.
Prior to his
engaged
in
On November
28, 1984, while working “outside on a main line head drive” for
Leeco, he sustained an injury to his left shoulder.
As a result,
Hoskins filed a workers’ compensation claim which was resolved in
an opinion rendered on March 7, 1988, in which he was found to have
a 20% occupational disability.1
Initially, Hoskins missed work for approximately nine
months due to the injury.
Three weeks after he returned to work,
he reinjured the shoulder while “shoveling belt,” resulting in a
seven or eight month absence.
Upon returning the second time,
Hoskins was able to continue working despite his shoulder problem
until January 2000 although he purportedly experienced increasing
weakness, numbness and discomfort which significantly limited his
activities at both home and work.2
1
There is some discrepancy as to which one of Hoskins’s
shoulders was injured. While the ALJ refers to a “right shoulder
injury,” the Board says he “sustained an injury to his left
shoulder,” noting that, initially, the March 1988 opinion refers to
his left shoulder while a later discussion in the same opinion
refers to problems with his right shoulder.
We agree with the
Board, however, that this issue is not significant on appeal.
2
In the discharge summary prepared by Hoskins’s attending
physician, Dr. Phillip Corbett, upon his release after his third
hospital admission, Hoskins is described as initially suffering
from a dislocated right shoulder. Initially, Dr. Corbett performed
an evaluation (under anesthesia) of Hoskins’s shoulder along with
an arthroscopic examination and arthroscopic capsulorrhaphy (to
stabilize the anterior capsule of his shoulder). Because of
recurrent dislocations, Dr. Corbett performed arthroscopic surgery
with stapling in October 1985. Hoskins subsequently underwent a
procedure to have the staples removed due to continuing pain and
(continued...)
-2-
On January 24, 2000, Hoskins was operating a “mantrip”
when, as he describes it, he stepped on a slick rock and twisted
his knee.
Following that incident, Hoskins’s knee “locked up” and
wouldn’t straighten.3
According to Hoskins’s testimony, he is
limited in his movements as his knee hurts if he stands in one
position for too long, walks too quickly or walks on surfaces such
as concrete.
He also suffers from a constant tingling sensation
and numbness, even when trying to sleep.
Consequently, he has not
returned to work since the injury.
Hoskins acknowledges that he injured his left knee while
playing basketball with his daughter in 1997.
He subsequently
underwent surgery to repair a medial meniscus4 tear of his left
knee.
After recovering from that procedure, Hoskins returned to
work, albeit in a different capacity, and did not experience any
significant difficulties with his knees until the incident at work
in January 2000.
2
(...continued)
decreased range of motion.
In his deposition, Dr. Corbett
recognizes that Hoskins sustained a fractured right clavicle in
1984.
3
This was not Hoskins first work-related knee injury. He
twisted his right knee in 1987 during the course of his employment
and underwent arthroscopic repair of a right medial meniscal tear
in March 1989. In 1997, he injured his left knee while crawling in
the mines. He was subsequently placed on light duty for a period
of time before undergoing another arthroscopic procedure.
4
A crescent-shaped structure, as the fibrocartilage in
certain joints.
Williams & Wilkins, Stedman’s Concise Medical
Dictionary, p. 611 (2nd ed. 1994).
-3-
In March 2000, Dr. Garnett Sweeney, who had previously
treated Hoskins for his shoulder and knee problems,5 performed
arthroscopic surgery on Hoskins’s left knee.
Dr. Sweeney later
testified that Hoskins had a tear of the medial mensicus, a small
tear in the inner edge of the lateral mensicus and a slightly
attenuated, slightly positive drawer sign in the ACL.
In a June
2000 entry from Dr. Sweeney’s medical records, he reports that
Hoskins slipped on a piece of bacon at McDonald’s subsequent to the
surgery (May 2000) and felt a weakness in his left knee.
At that
time, Dr. Sweeney indicated that the anterior drawer of the knee
was more pronounced than it had been when he performed the surgery.
However, in his estimation, the slipping incident was of minor
importance, i.e., a “giving” in a slippery environment more than an
injury.
According to Dr. Sweeney’s testimony, Hoskins’s major
injuries are “the initial index injury which weakened his ACL and
the squatting injury which tore a cartilage further destabilizing
the knee and possibly injuring, to a greater extent, the ACL.”
He
further testified that Hoskins suffered from an attenuation of the
medial meniscus and the ACL after his most recent work-related
injury, opining that Hoskins had gradually destroyed his ACL and
5
Dr. Sweeney treated Hoskins on multiple occasions
beginning in 1989 for the injury to his right knee which is not the
subject of a reopening claim. After performing two arthroscopic
surgeries in connection with that injury, he released Hoskins to
work in January 1990. Dr. Sweeney later examined Hoskins after the
basketball injury.
Hoskins also saw him in January 1999 in
relation to pain in his right shoulder, but no specific injury was
documented. Dr. Sweeney next saw Hoskins in February 2000 at which
time he presented with left knee pain and a history of his knee
locking when he squatted at work.
-4-
medial mensicus. He reiterated his belief as to the insignificance
of the McDonald’s incident in a July 2000 entry6 and emphasized
that upon arthroscopy Hoskins had attenuation of the ACL due to the
mining injury and needs reconstruction of the ACL as a consequence.
Dr. Sweeney also acknowledged that he said Hoskins “may well need
ACL reconstruction” in October 1997 but qualified that statement by
explaining that his reference at that point was to the likelihood
that one would be needed given Hoskins’s age, occupation and
already damaged knee.
His prediction was correct, however, as he
has determined that Hoskins currently needs an ACL reconstruction.
Dr. Sweeney assessed Hoskins as having a 7% functional impairment
based on the meniscus removal and overall instability of the knee
with 4% attributable to torn cartilage.
Ultimately, Hoskins filed an application for resolution
of injury claim alleging that he suffered a work-related knee
injury while working in the mines on January 24, 2000, and also
moved the ALJ to reopen his claim based on the shoulder injury he
sustained while working in the course and scope of his employment
as a coal miner on November 28, 1984.
an ALJ for further adjudication.
The matter was assigned to
In an order entered on February
5, 2001, the presiding ALJ consolidated the two claims.
At the hearing before the ALJ, Hoskins introduced the
report of Dr. James Templin who evaluated Hoskins at the request of
his
counsel
on
March
16,
2001.
6
Dr.
Templin
made
multiple
“His Workman’s Comp carrier is claiming that he did all
this at McDonald’s but this is totally untrue.”
-5-
diagnoses,7 finding within reasonable medical probability that
Hoskins’s injury is the cause of his complaints.
Using the most
recent American Medical Association (AMA) Guides to Evaluation of
Permanent
Impairment,
he
arrived
impairment of 25% for Hoskins.
at
a
permanent
whole
body
In Dr. Templin’s opinion, Hoskins
is unable to return to activities requiring repetitive or extensive
use of the right arm for pushing, pulling, lifting, twisting,
turning or activities above shoulder level.
from
engaging
in
activities
requiring
kneeling, squatting and climbing.
He is also precluded
stooping,
crouching,
In sum, he lacks the physical
capacity to return to the type of work performed at the time of
injury.
In response, Leeco presented the medical report of Dr.
Daniel Primm who evaluated Hoskins on September 21, 2000.
Dr.
Primm diagnosed Hoskins as having medial meniscal tears of the
right knee, status post partial medial meniscectomy of both knees
and a left knee injury secondary to a sports-related injury with
ACL and meniscal tears.
Although Dr. Primm agreed that Hoskins
would benefit from a left ACL reconsruction, he was not convinced
from a review of the medical records that the need for it is
secondary to a work-related injury.
By way of explanation, Dr.
Primm referred to Dr. Sweeney’s postoperative notes following the
basketball injury, observing that the first mention of ACL laxity
was made at that time and such an injury is more likely to produce
7
Chronic low back pain syndrome, chronic bilateral knee
pain, chronic right shoulder pain, s/p (status post) right shoulder
surgery, history of left foot fracture, s/p right knee total medial
meniscectomy, s/p left knee total medial meniscectomy, left knee
ACL tear.
-6-
an ACL tear.
that
3%
Based on the history of meniscectomy, he determined
is
the
appropriate
functional
impairment,
with
a
impairment to the body as a whole based on ligament laxity.
7%
Dr.
Primm also recommended that Hoskins avoid work requiring regular
squatting, kneeling or crawling.
However, he felt that Hoskins
could return to modified work operating the shuttle car.
In a
supplemental report, Dr. Primm indicated that, upon reviewing Dr.
Sweeney’s records, he concluded that the slip at McDonald’s did
have “at least some effect on the previous ACL tear,” ultimately
finding that the ACL tear originated as a result of the basketball
injury
and
was
further
aggravated
by
the
slip
and
fall
at
McDonald’s.
In addition to the above medical evidence, the ALJ also
considered the medical report of Dr. Richard Sheridan who evaluated
Hoskins in March 2001.
After reviewing the medical reports and
depositions documenting Hoskins’s history, Dr. Sheridan determined
that Hoskins incurred an acute dislocation of the right shoulder
from
the
work
event
of
1984
and
subsequently
underwent
reconstructive surgery for multiple recurrent dislocations of the
right shoulder.
Based on the AMA Guides, he arrived at a 14%
whole-man impairment based on the right shoulder injury.
In Dr.
Sheridan’s opinion, Hoskins is at maximum medical improvement (MMI)
for his shoulder and no restrictions are necessary in reference to
that problem.
main
Dr. Sheridan found that Hoskins merits a 1% whole-
impairment
attributable
to
the
medial
and
lateral
meniscectomies and removal from his left knee secondary to the
previous work event.
Consistent with Dr. Primm’s diagnosis, Dr.
-7-
Sheridan
was
of
the
opinion
that
Hoskins’s
need
for
ACL
reconstruction is most likely related to the basketball injury as
that “is a very common mechanism for a tear in the ACL and indeed
his ACL was noted to be attenuated at the time of his arthroscopy
by Dr. Sweeney.”
He also felt that Hoskins has reached MMI for his
knees and no restrictions are warranted.
Leeco also introduced the medical report of Dr. Robert
Goodman who evaluated Hoskins in March 2001 at its request.
With
respect to the left knee, Dr. Goodman felt that Hoskins suffers an
impairment of 8% with half attributable to the work injury and the
other
half
due
to
“outside
injuries.”
As
to
causation,
he
concluded that both the basketball injury and the work injuries,
along with the “injury” at McDonald’s contributed to the cruciate
laxity.
Like
the
other
doctors,
reconstruction is probably necessary.
he
found
that
the
ACL
He also expressed doubt as
to Hoskins’s ability to do underground mining.
In a supplemental
report, Dr. Goodman indicated that his examination showed a full
range of motion and no instability for Hoskins’s shoulder with no
objective evidence of worsening over the 7% impairment previously
assigned.
Upon reviewing all of the medical reports and testimony,
the ALJ placed emphasis on the report of Dr. Sheridan, relying on
his determination that no restrictions are appropriate with regard
to
Hoskins’s
shoulder
injury.
The
ALJ
also
focused
on
Dr.
Goodman’s opinion that Hoskins’s condition as it relates to his
shoulder has not worsened since the initial examination, ultimately
denying Hoskins’s motion to reopen.
-8-
In addition, the ALJ found
that the need for ACL reconstruction is not due to the work injury
and, as such, relieved Leeco of responsibility for the surgery. In
so doing, the ALJ concentrated on the entry from Dr. Sweeney’s
medical records dated October 10, 1997, (following the basketball
injury and preceding the work-related injury to the same knee),
wherein
he
indicated
that
Hoskins
continued
to
experience
discomfort and swelling in the knee and commented that Hoskins had
a hint of a drawer and might need an ACL reconstruction in the
future.
The ALJ specifically found that the opinions of Dr. Primm
and Dr. Sheridan were more credible as to the origin of the ACL
tear.
However, the ALJ also found that a new injury occurred to
the meniscus of the left knee as a result of the continual
squatting that was inherent in Hoskins’s job duties based on the
findings of Dr. Sweeney.8
Because the new injury happened after
December 12, 1996, the ALJ found that the income benefits are
controlled by Kentucky Revised Statutes (KRS) 342.730 as amended by
the 1996 General Assembly.
As such, the 4% functional impairment
rating translated to a grid factor of .75 which equated to an
occupational disability of 3%.
Pursuant to the findings of Dr.
Goodman and Dr. Templin, the ALJ further concluded that Hoskins
does not possess the physical capacity to return to the type of
work he performed at the time of injury and awarded income benefits
for permanent partial disability according to KRS 342.730(1)(c)(1)
(one and a half times as otherwise determined).
8
In addition, the ALJ found that Hoskins had no
preexisting active disability in relation to the meniscus injury.
-9-
In a workers’ compensation claim, the claimant bears the
burden of proving each of the essential elements of her claim.9
Where the party that bears the burden of proof before the ALJ is
unsuccessful, the question on appeal is whether the evidence
compels a different result.10
Compelling evidence is defined as
evidence that is so overwhelming no reasonable person could reach
the same conclusion as the ALJ.11
It is not enough for Hoskins to
show there is merely some evidence that would support a contrary
conclusion.12
As long as the ALJ’s opinion is supported by any
evidence of substance, it cannot be said that the evidence compels
a different result.13
The
ALJ,
as
factfinder,
has
the
sole
authority
to
determine the weight, credibility, substance and inferences to be
drawn from the evidence.14
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.15
Furthermore,
the Board may not substitute its judgment for that of the ALJ in
9
Snawder v. Stice, Ky. App., 576 S.W.2d 276, 280 (1979).
10
Wolf Creek Collieries v. Crum, Ky. App., 673 S.W.2d 735,
736 (1984).
11
REO Mechanical v. Barnes, Ky. App., 691 S.W.2d 224, 226
(1985).
12
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46, 47
(1974).
13
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
14
419
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418,
(1985).
15
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15,
16 (1977).
-10-
matters
involving
the
questions of fact.16
weight
to
be
afforded
the
evidence
on
The function of the Court of Appeals when
reviewing the Board’s decision is to correct it only where the
Court
perceives
controlling
the
Board
statutes
or
has
“overlooked
precedent,
or
or
committed
misconstrued
an
error
in
assessing the evidence so flagrant as to cause gross injustice.”17
Here, the ALJ specifically relied upon the testimony of
Dr. Sheridan and Dr. Goodman in denying the reopening as to
Hoskins’s shoulder injury. As is frequently the case, the evidence
upon reopening is conflicting.
Dr. Templin and Dr. Sweeney are
both of the opinion that Hoskins’s physiological condition has
deteriorated in relation to the shoulder, resulting in a decreased
vocational capacity.
In addition, they cite the fact that Hoskins
has developed post-traumatic arthritis as further evidence of his
increased symptomatology, noting that it limits his ability to use
his upper extremities.
In contrast, Dr. Sheridan and Dr. Goodman,
while acknowledging the development of the arthritis, did not
believe that it justified additional restrictions or an alteration
in the physiological impairment.
When, as is the case here, there
is conflicting evidence, it is the function of the ALJ and only the
ALJ to assess the weight and credibility to be given to the
evidence.
While Hoskins’s testimony relating to the difficulties
he has experienced with his shoulder is probative, it does not
16
Ky. Rev. Stat. (KRS) 342.285(2).
17
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-688 (1992).
-11-
dictate the outcome as the ALJ is not required to rely upon it.18
While deterioration is to be anticipated when a traumatic injury is
coupled with years of additional manual labor, the evidence falls
short of compelling a contrary conclusion. Equally problematic for
Hoskins as it relates to the reopening is that benefits are not
available for anything short of a permanent total disability as a
result of the shoulder injury.
As observed by the Board:
While an individual may reopen at any time in which
benefits might be accessible as a result of a 1984
injury, permanent partial disability benefits would only
extend for a period of 425 weeks, which has long since
expired.
Hoskins’[s]
only
opportunity
to
receive
benefits upon reopening would be to establish that the
shoulder injury by itself had deteriorated to such a
point that it was totally disabling.
We believe that
even the testimony of Hoskins himself would make it
difficult for a fact finder to conclude that absent the
additional problems that the shoulder alone was totally
disabling.
Ultimately, it is rare that the evidence
compels a finding of a greater or lesser degree of
occupational disability.19
As we agree with the Board’s analysis of the reopening
issue,
the
significant
question
becomes
whether
the
ALJ
was
compelled to conclude that the damage to Hoskins’s ACL and the
18
See Caudill, supra, n. 15.
19
Citations omitted.
-12-
recommended reconstruction are connected to the work event of
January 2000.
testimony.
As with the shoulder injury, there is conflicting
Dr.
Goodman
believes
the
work
contributed at least 50% to the ACL problems.
event
at
issue
Similarly, Dr.
Sweeney, the treating physician, is of the opinion that Hoskins’s
primary ACL problem is attributable to the “mine accident.”
Dr.
Sweeney also made an effort to explain the October 1997 note in
which he predicted that an ACL reconstruction would be necessary in
the future, characterizing it as a recognition of minor laxity in
the ACL at the time and an observation that the ongoing stress
being placed on the knee would likely lead to the need for further
surgery.
In his opinion, the removal of the meniscus, which was
necessitated by the mining accident, was more likely to cause ACL
instability as opposed to the repair of the meniscus that took
place in 1997. Although there were minor “drawer” changes in 1997,
he believes they were noticeably worse after the 2000 injury.
Dr.
Sweeney also believes that the slip at McDonald’s was a result of
the ACL laxity rather than the cause of it.
In conflict with this
assessment is the evidence from Dr. Sheridan and Dr. Primm, both of
whom are of the opinion that any ACL tear and/or laxity is more
consistent with the 1997 basketball injury or the slip and fall
than the squatting activities at work.
Neither doctor believes
that there is a causal connection between the work activities and
the ACL problems.
On appeal, Hoskins is faced with the difficult task of
establishing that the evidence compelled a contrary result.
As
Hoskins’s treating physician, Dr. Sweeney was arguably in the best
-13-
position to evaluate his condition and he addressed the interaction
of all of the events in his opinion.
However, the ALJ is not
obligated to afford greater deference to the treating physician
than the examining physician when the two physicians rely on
basically the same information for their evaluation.20
As implied
by the ALJ, the mere aggravation of an already existing condition
does not necessarily constitute a work-related compensable injury.21
As to the ultimate determination regarding the causation
of the knee injury, we agree with the Board and adopt the following
reasoning as our own:
Certainly there was evidence that would have supported a
causal connection and would have supported a finding of
a greater degree of occupational disability than was
found by the ALJ.
However, there was equally credible
and significant evidence to support the ALJ’s ultimate
conclusion that the ACL problems were unrelated to the
work event of January 2000.
So long as the evidence
supports the conclusion of the ALJ, even if another
reasonable conclusion could have been made, his decision
may not be disturbed on appeal.
Because
the
Board
did
not
misconstrue
controlling
statutes or precedent or “commit an error in assessing the evidence
so flagrant as to cause gross injustice,” its opinion is affirmed.
20
See Yocom v. Emerson Elec. Co., Ky. App., 584 S.W.2d 744
(1979).
21
See Calloway County Fiscal Court v. Winchester, Ky. App.,
557 S.W.2d 216 (1977).
-14-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Phillip Lewis
Hyden, Kentucky
Jeffrey D. Damron
Baird & Baird
Pikeville, Kentucky
-15-
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.
