LARRY SMITH v. BATTLE RIDGE COMPANIES; ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 23, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000325-WC
LARRY SMITH
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-93-18538
BATTLE RIDGE COMPANIES;
ROBERT WHITTAKER, DIRECTOR OF SPECIAL FUND;
HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, McANULTY, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is a petition for review of a decision of
the Workers’ Compensation Board reversing an opinion and award of
the Administrative Law Judge finding that the claimant upon
reopening had shown a worsening of occupational disability
warranting an award of total occupational disability.
We agree
with the Workers’ Compensation Board that the Administrative Law
Judge’s finding was not supported by substantial evidence.
Hence, we affirm.
In an opinion and award rendered in 1995, an
Administrative Law Judge (“ALJ”) found Larry Smith to be 65%
occupationally disabled due to work-related cervical injuries he
sustained on December 31, 1992 and January 26, 1993, in his
employment with Battle Ridge Companies (“Battle Ridge”).
The
first injury occurred when Smith was driving a drill machine and
was jolted as it went over a rock.
The second injury occurred
when Smith and two co-employees were in the process of lifting a
three-hundred-pound drill part into a truck.
The award was based
on an impairment rating of 10% to 18% and restrictions that
precluded him from lifting more than twenty pounds on a frequent
basis, working above shoulder level, constantly looking down, or
using his left hand for handling or fingering.
Smith was born on
February 6, 1954, has an eighth grade education, and no
vocational training.
On December 11, 2000, Smith filed a motion to reopen,
alleging an increase in disability.
A hearing on the motion was
held on June 18, 2001, in which Smith testified.
Smith also
submitted the deposition testimony of himself, his wife,
Elizabeth Smith, and Dr. James Adams, Smith’s treating physician.
Battle Ridge presented the medical report of Dr. Robert Goodman,
who examined Smith on behalf of Battle Ridge in the original
claim and on reopening.
Proof from the original claim was also
considered in evidence.
On August 2, 2001, the ALJ rendered its opinion and
award finding that Smith had suffered an increase in occupational
disability and that he was now 100% occupationally disabled.
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On
appeal to the Workers’ Compensation Board (“the Board”), the
Board reversed the ALJ, determining that the ALJ’s finding of a
worsening of occupational disability was not supported by
substantial evidence.
This petition for review by Smith
followed.
Smith argues that the Board erred in adjudging that
there was not substantial evidence to support the ALJ’s decision.
As fact finder, the ALJ has the discretion “to determine the
degree of functional disability on the basis of conflicting
medical evidence and to translate functional impairment into
occupational disability.”
Kentucky Carbon Corp. v. Dotson,
Ky.App., 573 S.W.2d 368, 370 (1978).
The ALJ has the sole
authority to judge the weight, credibility, and inferences to be
drawn from the record.
Miller v. East Kentucky Beverage/Pepsico
Inc., Ky., 951 S.W.2d 329 (1997).
When the party with the burden
of proof is successful before the ALJ, the question on appeal is
whether there is substantial evidence to support the ALJ’s
conclusion.
Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d
735 (1984).
Substantial evidence is defined as evidence of
substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable people.
Smyzer v. B.F.
Goodrich Chemical Co., Ky., 474 S.W.2d 367 (1971).
This Court
may reverse the Board only where “it 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.”
Western Baptist Hospital v. Kelly, Ky.,
827 S.W.2d 685, 687-688 (1992).
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Smith’s injuries occurred in 1992 and 1993, and the
Board ruled in Smith’s favor in determining that the pre-1996
version of KRS 342.125 applied as to the standard for reopening.1
The Court in Peabody Coal Co. v. Gossett, Ky., 819 S.W.2d 33, 36
(1991), interpreted that standard as follows:
When a claimant seeks an increase in
compensation because of a change in
occupational disability in a reopening
proceeding, he or she must prove by competent
evidence that a significant change in
occupational disability in fact exists, and
that the disability is the result of the
injury or disease which was the subject of
the original award.
Since the 1996 version of KRS 342.125 does not apply, there is no
requirement that the change in occupational disability be shown
by objective medical evidence.
Smith has not worked since his injury in 1993.
At his
original hearing in 1994, Smith testified that he had constant
pain in his neck and shoulders that went up his neck, down his
arms and back and into his legs.
He stated that he spent his
days walking, sitting, and lying down and that he could drive no
more than 18 miles because of pain in his legs, arms, and back.
On reopening, Smith complained of pain in his arms,
back, and constant pain in his shoulders.
Smith testified that
his pain had worsened because he now had pain in both legs, down
his hips, and into both arms and his neck was stiffer.
He
further testified that he spends his time walking around and
sitting watching television.
He admitted that he is still able
to drive 18 miles.
1
Battle Ridge did not appeal this ruling.
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Elizabeth Smith testified that her husband complains
more of pain and wakes up more often at night than he did at the
time of the original award.
She also confirmed that he is still
able to drive.
Dr. Adams reported that Smith’s condition had worsened
since the original award and that his functional impairment
rating was now 75%.
However, Dr. Adams conceded that this rating
was not made in accordance with the AMA Guidelines.
Dr. Adams
testified that Smith’s pain was not better and opined that it was
probably worse.
When asked about Smith’s functional limitations,
Dr. Adams stated that they had not changed since 1995.
Dr. Adams
testified that in his view, Smith was totally incapacitated at
the time of the original award and that he remained about the
same.
Dr. Adams’s treatment of Smith at the time of reopening
was the same as in 1993, except for changes in some of Smith’s
medications to newer drugs.
Dr. Goodman indicated in his report that when he
examined Smith in 2001, his condition was the same as in 1993
except for some slight loss of range of motion in the lumbar
spine.
Dr. Goodman noted that his diagnosis and cervical spine
range of motion remained identical.
He assessed a 25% impairment
rating to Smith’s body as a whole due to the cervical spine in
2001, compared to a 10% impairment rating he assessed in 1993.
Dr. Goodman explained in his report that the change in impairment
rating was due solely to application of the Fifth Edition of the
AMA Guidelines in 2001, whereas in 1993 the Third Edition of the
Guidelines was used.
Finally, Dr. Goodman stated that in
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reviewing his reports, the original award, and the report of Dr.
Phillip Tibbs, the neurosurgeon who performed the discectomy and
cervical fusion on Smith, he was “unable to document any
objective change in condition or restrictions.”
Although Smith maintained that his pain had worsened,
by his own admission he was able to engage in the same level of
activity as in 1993 - sitting, walking, and driving relatively
short distances.
Likewise, his treatment and functional
limitations imposed by Dr. Adams remained the same as in 1993.
Although Dr. Adams opined that Smith’s functional impairment
rating had increased to 75%, that rating was not based on the AMA
Guidelines.
Dr. Goodman reported that Smith’s condition was
essentially the same as in 1993 and specifically noted that he
could not document any objective change.
Further, the impairment
rating he assessed for 2001 would have been the same as in 1993,
but for the application of the more recent edition of the AMA
Guidelines.
From the above evidence, we cannot say the Board
committed flagrant error in assessing the evidence.
Baptist Hospital, 827 S.W.2d at 687-688.
See Western
The ALJ’s finding of a
worsening of occupational disability was simply not supported by
substantial evidence.
While Smith and his wife testified that he
experienced more pain now and that he woke up more frequently in
the night, those subjective complaints alone do not translate
into any increase in occupational disability.
For the reasons stated above, the decision of the
Workers’ Compensation Board is affirmed.
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McANULTY, JUDGE, CONCURS.
COMBS, JUDGE, DISSENTS AND FURNISHES SEPARATE OPINION.
COMBS, JUDGE, DISSENTING:
From my review of this case,
I cannot agree with the Board that the ALJ’s decision was not
adequately founded upon substantial evidence.
The ALJ had the
best opportunity to evaluate the compelling evidence of worsening
of Smith’s condition.
He apparently believed the direct
testimony of Smith over medical reports refuting his claims of
increased pain.
The ALJ properly exercised his considerable
discretion in electing to believe Smith despite conflicting
medical evidence.
Therefore, I would reverse the Board and
reinstate the decision of the ALJ in this matter.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, BATTLE
RIDGE COMPANIES:
Randy G. Slone
Hindman, Kentucky
Bonnie Hoskins
Lexington, Kentucky
BRIEF FOR APPELLEE, WORKERS’
COMPENSATION BOARD:
Joel D. Zakem
Frankfort, Kentucky
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