CHARLES CLEARING CONTRACTORS v. HANSEL WEBB; SPECIAL FUND; DONNA TERRY, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 20, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000644-WC
CHARLES CLEARING CONTRACTORS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-24202
ACTION NO. WC-92-24206
v.
HANSEL WEBB; SPECIAL FUND;
DONNA TERRY, ADMINISTRATIVE
LAW JUDGE; WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON AND MILLER, JUDGES.
BARBER, JUDGE:
The Appellant, Charles Clearing Contractors (“the
employer”), seeks review of a Workers’ Compensation Board opinion
affirming the Administrative Law Judge’s award of increased
benefits upon reopening.
The Board concluded that the
Administrative Law Judge (ALJ) had thoroughly analyzed the
evidence pertaining to both the original injury and the
reopening, and that her decision was based upon substantial
evidence.
We affirm.
The Appellee, Hansel Webb (“Webb”), originally settled
his claim for a June 11, 1990 low back injury and noise-induced
hearing loss for 62.5% occupational disability.
On December 15,
1992, an ALJ approved the settlement agreement.
In 1999, Webb
underwent back surgery.
On December 8, 2000, Webb filed a motion
to reopen, which was granted to the extent that the case was
assigned to an ALJ for proof taking and further adjudication
On October 8, 2001, the ALJ rendered an Opinion and
Award in the reopening, concluding that the 1992 settlement for
62.5% occupational disability accurately reflected Webb’s
disability at that time; further, that “[i]n contrast, Mr. Webb
is now permanently totally disabled.”
The ALJ summarized the
evidence, including the vocational evaluation of Dr. William
Weikel, who stated that “assuming Mr. Webb’s credibility, he is
100% disabled from all work.”
The ALJ relied upon Dr. Rapier,
whose report established that Webb’s condition had worsened over
the years.
The employer appealed to the Board, and argued that the
substantial evidence of record did not support the ALJ’s finding
that the 1992 settlement for 62.5% permanent partial disability
accurately reflected Webb’s occupational disability at that time.
The employer asserted that “there is no possible way ... Webb
could not have been deemed permanently and totally occupationally
disabled” all along, so his condition could not have worsened.
The Board disagreed, and affirmed the ALJ’s decision, in a
unanimous opinion rendered February 27, 2002.
On March 29, 2002, the employer filed a petition for
review in this Court.
On appeal, the employer complains that,
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instead of addressing the issue of whether Webb was totally
disabled when he settled his case in 1992, the Board “continued
by rehashing portions of Appellant’s argument, ... [and] began to
cite case law identifying the burden of proof in proving an
increase in occupational disability.”
The employer repeatedly
reminds us that the issue raised is not whether the finding of
increased disability is supported by substantial evidence;
rather, that “an individual cannot become more than 100%
occupationally disabled.”
We do not believe that the Board
failed to address the employer’s argument -- it simply was not
persuaded by it:
We agree with Contractors that Webb’s case at
all times was governed by the factors
contained in Osborne v. Johnson,.1 .... These
factors include consideration of claimant’s
age, education and work experience. While it
may be true that Webb’s education and work
experience have remained static over the
years, the ALJ is not restricted to a
comparison of those two factors. First, Webb
has testified to significantly increased pain
and symptomatology in his left leg as well as
new pain and symptomatology in his right leg.
Additionally, he has testified as to
increased restrictions and
limitations....
The ALJ was further buttressed in her opinion by the
increased impairment rating and restrictions assigned
by Dr. Rapier....
The ALJ thoroughly analyzed the entirety of the record and the
totality of the evidence, including evidence upon which the
original claim was settled....
(Emphasis added).
Further, we note, as did the ALJ, a medical report from
Dr. Eugene Q. Parr, filed by notice on May 31, 2001.
1
Ky., 432 S.W .2d 800 (1968).
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Dr. Parr
had examined Webb in the original proceeding on December 13,
1991, and assigned a 13% functional impairment, body as a whole,
based upon the 3d Edition of the AMA Guidelines.
Dr. Parr
believed that Webb would benefit from a lumbar discecktomy, and
that “he would improve significantly from this surgery....”
In
fact, Dr. Parr saw “no reason why he could not return to his
usual and customary work responsibilities as a heavy equipment
operator subsequently.”
Thus, contrary to the employer’s
assertions, Dr. Parr’s 1991 evaluation provides a substantial
evidentiary foundation for the ALJ’s determination that Webb was
not totally and permanently disabled at the time of the original
settlement.
We affirm the February 27, 2001 Opinion of the Workers’
Compensation Board.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE HANSEL
WEBB:
Kamp T. Purdy
Lexington, Kentucky
Jeffery Hinkle
Inez, Kentucky
BRIEF FOR SPECIAL FUND:
Joel D. Zakem
Frankfort, Kentucky
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