PAUL E. DAVIDSON, II v. WHITAKER COAL CORPORATION; SHEILA C. LOWTHER, Chief Administrative Law Judge; ROBERT L. WHITTAKER, Director of WORKERS' COMPENSATION FUNDS, Successor to SPECIAL FUND; and WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000849-WC
PAUL E. DAVIDSON, II
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. WC-93-01043 & WC-94-34226
v.
WHITAKER COAL CORPORATION; SHEILA
C. LOWTHER, Chief Administrative Law
Judge; ROBERT L. WHITTAKER,
Director of WORKERS’ COMPENSATION FUNDS,
Successor to SPECIAL FUND; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS and DYCHE, Judges; and, JOHN WOODS POTTER1,
Special Judge.
COMBS, JUDGE:
Paul E. Davidson, II, petitions for review of an
opinion of April 3, 2002, of the Workers’ Compensation Board,
which affirmed the opinion of the Chief Administrative Law Judge
(CALJ) dismissing the motion to reopen his award.
On appeal,
Davidson contends that the CALJ ignored uncontradicted testimony
1
Senior Status Judge, John Woods Potter, sitting as Special
Judge by assignment of the Chief Justice pursuant to Section
110(5)(b) of the Kentucky Constitution.
and erred in failing to find him to be totally occupationally
disabled.
Our review of the record reveals that the Board did
not err in holding that the evidence before the CALJ did not
compel a finding of an increase in the amount of Davidson’s
occupational disability award.
Thus, we affirm.
Davidson sustained an injury to his lower back on April
21, 1994, while operating a rock truck for the appellee, Whitaker
Coal Corporation (Whitaker).
The seat of the truck
malfunctioned, causing Davidson to strike his head on the roof of
the cab and pinning his legs under the steering wheel.
On
November 26, 1996, Davidson was awarded workers’ compensation
benefits based on a 50% permanent occupational disability.
Davidson was only twenty-eight years of age at the time of the
award and had successfully completed training in welding,
computers, and heavy equipment.
Based on these factors, the ALJ
provided that Davidson be referred to the Department of
Vocational Rehabilitation for an evaluation at Whitaker’s
expense.
For reasons not entirely clear from the record,
Davidson did not obtain that evaluation until 2001 -- after he
had moved to reopen his claim.
On December 11, 2000, Davidson filed a motion to reopen
his award on the grounds that his physical condition had worsened
and that his pain had increased.
In support of his motion, he
submitted the deposition testimony of Dr. Jeffrey Prater and an
independent medical evaluation from Dr. James Templin.
Dr.
Prater testified that Davidson’s pain had increased since 1996
and that he could not return to the same type of work he had been
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performing at the time of the injury.
Dr. Templin, who testified
in the original proceeding and had then assigned a 10% functional
impairment, reported that Davidson’s subjective complaints were
greater and assigned an 11% functional impairment rating on
reopening.
The record also contains the deposition of Dr.
Timothy Lee Sexton, a chiropractor who treated Davidson, and the
vocational rehabilitation assessment, which indicated that
Davidson’s reading and math levels (1st and 2nd grade,
respectively) were far below his actual 9th grade formal
education.
The CALJ did not agree that Davidson’s occupational
disability had changed since the original award and found that he
failed to sustain his burden of proof.
The CALJ summarized the
evidence and concluded as follows:
[T]he ALJ finds [Davidson’s] own
testimony to be the most compelling evidence.
Mr. Davidson testified in the original
proceeding that he could not return to any
gainful employment. At no time since the
injury has he made any effort to obtain a
job. His vocational evaluation shows a
marked inconsistency between his formal
education and his test results. It also
indicates that he had no serious interests.
Essentially, [Davidson] is arguing that
although he always considered himself to be
totally disabled, his subjective complaints
are now worse. The ALJ is not persuaded that
this meets his burden of proof. In Central
City v. Anderson, Ky.App., 521 S.W.2d 246
(1975), the Court indicated that on
reopening, an additional award was not
justified where there was no showing that
[sic] was a greater burden on the employment
market now than at the time of the original
award. The ALJ believes that this is the
case with Mr. Davidson. Therefore, this
reopening is hereby dismissed.
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In its review, the Board thoroughly analyzed the
evidence presented to the CALJ.
As we have no basis to depart
from the meticulous reasoning of that opinion, we adopt the
following portion of the Board’s opinion as our own:
On appeal, Davidson first argues
the CALJ used the wrong standard in
determining whether or not a change of
occupational disability had taken place.
Davidson contends the CALJ focused on change
of condition instead of change in
occupational disability. He argues the CALJ
essentially looked at the case backwards
beginning with his condition in 1996 and
working forward. He contends the CALJ should
have looked at his condition in 2001 and
worked backwards. Davidson believes the CALJ
has, in effect, changed the 50% occupational
disability rendered in 1996 to a 100%
occupational disability.
Next, Davidson argues that there is
on [sic] evidence to overcome the proposition
that he is 100% occupationally disabled.
While the CALJ has wide discretion in
choosing which evidence to rely upon, she
must follow uncontradicted medical evidence.
Davidson believes the CALJ has “gone behind”
the physicians’ testimony and second-guessed
their opinion.
Finally, Davidson argues the CALJ
failed to make any findings of fact regarding
his pain. He contends it is uncontradicted
that he was suffering from severe pain.
For Davidson’s injury, the statute
provided that an award may be reopened upon a
showing of a change in occupational
disability. That change in occupational
disability may be supported by evidence of
both physical changes and economic changes
when those economic changes are not brought
on by the willful intent of the employee not
by mere changes in economic conditions, such
as recession or plant closing. The claimant
moving for reopening has the burden of
showing that the decrease of wage earning
capacity, whether the result of physical
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deterioration or subsequent unemployability
without a physical change, is due to the
effects of the injury in order for an award
to be increased. Peabody Coal Company vs.
Gossett, Ky., 819 SW2d 33 (1991). Since
Davidson had the burden of proof before the
CALJ, and was unsuccessful, the question on
appeal is whether the evidence compelled a
different result. Wolf Creek Collieries vs.
Crum, Ky.App., 673 SW2d 735 (1984).
Compelling evidence is defined as evidence
that is so overwhelming that no reasonable
person could reach the same conclusion as the
CALJ. Reo Mechanical vs. Barnes, Ky.App.,
691 SW2d 224 (1985). It is not enough for
Davidson to show there is merely some
evidence that would support a contrary
conclusion. McCloud vs. Beth-Elkhorn Corp.,
Ky., 514 SW2d 46 (1974). The CALJ, as fact
finder, has the sole authority to determine
the weight, credibility, substance and
inferences to be drawn from the evidence.
Paramount Foods, Inc., vs. Burkhardt, Ky.,
595 SW2d 418 (1985). This Board may not
substitute its judgment for that of the CALJ
on matters involving the weight to be
accorded the evidence in questions of fact.
KRS2 342.285(2).
We are of the opinion the CALJ
applied the correct standard. In this case,
Davidson offered no basis for the reopening
other than an alleged change in his physical
condition and resulting increase in pain.
The evidence, as summarized above, indicates
essentially the same diagnosis and the same
type of complaints at the time the claim was
originally decided at on reopening. The
claim turns upon Davidson’s own testimony
that his pain in now worse. The CALJ is free
to assign little credibility to self-serving
testimony. Paramount Foods vs. Burkhardt,
supra. Here, it is evident that the CALJ did
not find Davidson’s testimony that he was
unable to work any more credible now than he
believed himself to be totally disabled at
that time. The CALJ clearly considered the
evidence in light of an occupational
disability standard and did not believe
Davidson’s evidence was sufficient to
establish he was a greater burden on the
2
Kentucky Revised Statutes.
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employment market now than at the time of the
original Award.
We do not believe the CALJ erred in
not relying on Dr. Prater’s opinion that
Davidson’s condition was worse. Where a
physician’s opinion is based upon the history
and complaints provided by a patient, the
history and complaints are not necessarily
entitled to any greater weight simply because
they have been provided to the physician. If
the fact finder does not find the claimant’s
testimony regarding pain to be credible, she
may disregard the physicians’ opinions based
upon that same testimony. If the history
given to a physician is sufficiently
impeached, the CALJ need not follow that
doctor’s medical opinion even if
uncontradicted. Osborne vs. Pepsi Cola, Ky.,
816 SW2d 643 (1991).
Finally, in this instance, we do
not believe it was necessary for the CALJ to
make a specific finding of fact regarding
Davidson’s pain. The CALJ was clearly aware
of Davidson’s testimony regarding his pain
but was not convinced by that testimony. In
our opinion, the evidence presented falls far
short of compelling a finding in Davidson’s
favor.
In his appellate brief, Davidson is quite candid and
does not allege any error in the Board’s reasoning nor does he
challenge any of the legal authorities cited by the Board.
His
brief is nearly identical to the one he filed before the Board
and assigns the same instances of error allegedly committed by
the CALJ.
He highlights the evidence which he believes reveals
an arbitrary decision by the CALJ and argues that the injury of
1994 has left him totally and permanently disabled.
Our role is to determine whether “the Board has
overlooked or misconstrued controlling statutes or precedent, or
committed error in assessing the evidence so flagrant as to cause
gross injustice.”
Western Baptist Hospital v. Kelly, Ky., 827
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S.W.2d 685, 687-88 (1992).
In reviewing the record under the
dictates of that rather strict standard, we observe that Davidson
has not worked nor attempted to work since his 1994 injury; he
has been drawing Social Security Disability prior to and since
the date of the original award.
While the evidence indeed could
support a finding that Davidson will never return to the work
force, the evidence is conflicting and — in the words of the
Board — falls “far short” of compelling a conclusion that his
degree of occupational disability has changed.
A comparison of
the work restrictions placed on Davidson by Dr. Templin — both
before the original award and again upon reopening -- reveals no
change.
Dr. Templin’s increase of 1% in the impairment rating on
reopening also supports the finding that Davidson’s occupational
disability has not changed significantly.
In 1995, Dr. Templin
stated:
Mr. Davidson is unable to set [sic] for any
extended period of time or ride in or on
vibratory vehicles. He is also unable to
lift items weighing greater than 20 pounds or
carry same for any extended distance or
prolonged time. Additionally, he is unable
to do any repetitive bending, stooping,
crouching, kneeling, walking, standing, or
climbing.
In 2001, Dr. Templin reported the following restrictions:
Mr. Davidson is unable to stand and walk for
periods greater than 20 to 30 minutes at one
time or 2 hours per 8 hour timeframe. He is
unable to sit for periods greater than 1 hour
at one time or 4 to 5 hours per 8 hour
timeframe. He is unable to lift items
weighing greater than 20 pounds from waist
level with no repetitive or frequent lifting
of items weighing from floor level. He is
unable to be put in an environment where he
is required to do frequent bending, stooping,
kneeling, squatting, crouching, climbing, for
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periods greater than 30 minutes per 8 hours
timeframe. He is unable to repetitively
operate foot controls and should avoid
working in cold, damp environments. He is
unable to ride in or on vibratory vehicles
for any extended distance or time.
There is no doubt that Mr. Davidson is plagued with great pain,
that his employment limitations remain severe, and that his
prospects of future employment are grim.
Despite the fact that
we may have found differently had we been filling the role of the
CALJ or the Board, we are carefully circumscribed by the standard
of Western Baptist, supra.
We cannot find any clear error or
gross departure from precedent in the Board’s assessment of the
evidence as being less than compelling.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE WHITAKER
COAL CORPORATION:
James D. Holliday
Hazard, Kentucky
Charles W. Berger
Harlan, Kentucky
BRIEF FOR APPELLEE WORKERS’
COMPENSATION FUND:
Joel D. Zakem
Frankfort, KY
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