SIDNEY COAL COMPANY v. CHARLES FINLEY; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: SEPTEMBER 20, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000968-WC
SIDNEY COAL COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-00-85213
v.
CHARLES FINLEY; HON. DONALD G.
SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, JOHNSON AND McANULTY, JUDGES.
JOHNSON, JUDGE:
Sidney Coal Company has petitioned this Court
for review of the Workers’ Compensation Board’s opinion affirming
in part, reversing in part and remanding the Administrative Law
Judge’s opinion and award.
Specifically, Sidney Coal is
appealing the Board’s holding that the ALJ, pursuant to KRS1
342.730(1)(c)(1), properly enhanced Charles Finley’s award for
his leg injury by the multiplier of three.2
Having concluded
1
Kentucky Revised Statutes.
2
In this appeal, Sidney Coal only contests the ALJ’s
(continued...)
that the Board has not overlooked or misconstrued controlling
statutes or precedent or committed an error in assessing the
evidence so flagrant as to cause gross injustice, we affirm.
Finley is currently a 43 year-old resident of Belfry,
Kentucky.
He completed high school, but has no specialized or
vocational job training.
Finley’s work history consists
primarily of employment in the coal mining industry.
was certified as a mine foreman.
In 1996 he
Finley began his employment
with Sidney Coal in August 1999 first as a roof bolter and then
as a section foreman.
From 1995 to 2000, Finley injured his back three times
while working in the coal mining industry.
None of these prior
back injuries were severe enough for Finley to receive any type
of benefits.
On April 3, 2000, during the course and scope of
his employment with Sidney Coal, Finley re-injured his back while
lifting a roof bolt.
Sidney Coal immediately placed Finley on
light duty until he was taken off work on April 25, 2002.
Finley
received temporary total disability benefits from April 25, 2000,
until he was released to return to full duty on June 18, 2000.
On September 14, 2000, while carrying coal samples at
Sidney Coal’s Peg Branch mine, Finley slipped on some rock,
resulting in a broken left leg.
He was immediately transported
to the emergency room of a local hospital where his left leg and
2
(...continued)
application of the three multiplier concerning Finley’s leg
injury. The portion of the Board’s opinion reversing Finley’s
claim for additional fact-finding concerning the ALJ’s
application of the .5 modifier pursuant to KRS 342.730(1)(c)(2)
was not brought before us by any party herein.
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ankle were placed in a cast for six weeks.
Finley received
temporary total disability benefits from September 14, 2000, to
January 3, 2001.
Thereafter, Finley attempted to return to his
employment with Sidney Coal, but was informed that he had been
replaced.
At no time after January 3, 2001, did Sidney Coal re-
employ Finley.
In April 2001 Finley became employed by J.H. Taylor
Mining Company.
The next month, however, he was laid off.
Finley obtained unemployment benefits for 26 weeks until recalled
by this employer.
Finley, citing the effects of his back and leg
injuries sustained during his employment with Sidney Coal,
refused to return to his employment with J.H. Taylor Mining
Company.
On June 5, 2001, Finley filed a workers’ compensation
claim.
In his application, Finley initially alleged that he was
entitled to disability benefits as a result of his April and
September 2000 injuries only.
During the litigation of his
claim, however, Finley amended his application to include a
September 1999 back injury.
ALJ Smith was assigned Finley’s claim for final
adjudication.
In addition to Finley’s testimony at the hearing
and by deposition, evidence submitted for the ALJ’s consideration
consisted of medical records and reports from Dr. Joseph Rapier,
Jr., Dr. John Iaquinto, Dr. Designu Raja3, Dr. Timothy Wagner and
Dr. Daniel Primm.
The ALJ also received a vocational evaluation
3
Dr. Raja was Finley’s treating physician with regard to the
left ankle fracture. Dr. Raja’s medical records as included in
the record were handwritten and illegible.
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report submitted by Dr. Ralph Crystal.
Dr. Crystal also
testified by deposition.
Dr. Rapier performed an independent medical examination
of Finley on April 17, 2001.
During this examination, Dr. Rapier
interpreted x-rays of Finley’s leg and ankle as showing a nondisplaced spiral fracture of the distal fibula in good position
and alignment.
The x-rays also showed that the fracture had
completely healed.
Dr. Rapier’s review of x-rays, taken April 2,
2000, of Finley’s lumbar spine showed the vertebral bodies and
appendages to be intact and in normal alignment.
Some mild
degenerative changes of the spine were present, manifested mostly
by vertebral body spurring.
Dr. Rapier’s physical examination
further revealed Finley had mild muscle spasms in his lumbar
spine, a 3/4 inch atrophy of the left calf and a 1/4 inch atrophy
of the left thigh.
Based upon his overall examination, Dr. Rapier
diagnosed Finley as suffering from a history of multiple strains
to his back, aggravating pre-existing dormant degenerative
changes without radiculopathy, and a sustaining fracture of the
distal fibula that has healed.
With this diagnosis, Dr. Rapier
assessed Finley as suffering from a nine percent whole body
impairment based upon the American Medical Association
Guidelines.
Five percent of this amount was attributed to the
back injuries, with four percent attributed to the healed ankle
fracture, which produced atrophy in the left calf and thigh.
Dr.
Finley recommended that Finley be restricted from any lifting in
excess of 20 pounds and that Finley not engage in employment
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requiring frequent bending, lifting, turning and twisting.
Dr.
Rapier also opined that Finley was no longer physically capable
of returning to work as a coal miner.
Finley’s treating physician was Dr. Iaquinto.
Dr.
Iaquinto diagnosed Finley as suffering from recurrent lumbosacral
strain.
Dr. Iaquinto interpreted x-rays as showing mild
degenerative changes to Finley’s spine, with loss of normal
lumbar lordosis.
Dr. Iaquinto concluded that Finley experienced
a complete resolution of his lower back problems and released him
to return to work with no restrictions.
Dr. Wagner evaluated Finley on August 16, 2000.
From
his evaluation, Dr. Wagner diagnosed Finley as suffering from
complaints of lower back pain, but he found no evidence of any
permanent impairment as a result of Finley’s work injuries.
Dr. Primm diagnosed Finley as suffering from a status
post healed distal left fibula fracture and lumbar strain
superimposed upon early pre-existing degenerative changes.
Dr.
Primm believed that Finley could return to work and, based only
upon Finley’s lower back complaints, assessed a functional
impairment rating of zero to five percent.
In his report, Dr.
Primm disagreed with Dr. Rapier’s four percent assessment for the
left leg and ankle.
This disagreement stemmed from Dr. Primm’s
opinion that atrophy was not a permanent condition.
Finally, Dr.
Primm indicated that Finley retained the physical capacity to
return to his prior employment.
Dr. Crystal, a vocational expert, evaluated Finley on
August 31, 2001.
In his report and testimony, Dr. Crystal opined
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that Finley was physically able to return to the eastern Kentucky
work force in a wide variety of jobs.
The ALJ, in an opinion and award rendered on December
20, 2001, found Finley’s ankle and low back conditions to be
compensable.
The ALJ further determined that Finley no longer
retained the ability to return to his normal and customary
employment in the coal mining industry, thus entitling Finley to
the 1.5 modifier under the 1996 version of KRS 342.730(1)(c)(1),
with respect to Finley’s lower back condition.
Further, the ALJ
opined that Finley was also entitled to the three modifier as
provided in the 2000 version of KRS 342.730(1)(c)(1),4 for the
ankle injury.
In obtaining this result, the ALJ stated as
follows:
The Administrative Law Judge must
determine the extent and duration of
Plaintiff’s disability as a result of the
work-related back injury, including the
computation of such benefits. In doing so,
the Administrative Law Judge must first
determine whether the Plaintiff retains the
physical capacity to return to the type of
work performed at the time of the injury.
Dr. Rapier placed significant restrictions on
the Plaintiff due to the back injury that
would prevent him [sic] returning to his past
work. Plaintiff’s testimony was credible
regarding his pain and restrictions. Based
on this evidence, the Administrative Law
Judge does not believe that Plaintiff could
return to his prior work because of the back
condition. However, the Administrative Law
Judge is not convinced that the Plaintiff is
totally disabled at this time. It is noted
that Dr. Rapier is the most persuasive doctor
4
KRS 342.730(1)(c)(1) provides that if an employee, because
of an injury, does not retain the physical capacity to return to
the type of work undertaken at the time of the injury, the
benefit for permanent partial disability as determined by the
statutory formula shall be multiplied by three.
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to give an impairment rating under the AMA
Guides, and therefore Plaintiff is found to
have a 5% impairment rating for the back.
Therefore it appears that the Plaintiff’s
benefits would be calculated as follows:
$381.77 [average weekly wage multiplied by
two-thirds, but limited to 75% of the state
average weekly wage] x 5% [impairment rating]
x .75 [factor under KRS 342.730(1)(b)] x 1.5
[multiplier under KRS 342.730(1)(c)(1) when
Plaintiff does not retain the physical
capacity to return to prior work] = $21.47.
It is noted that Dr. Rapier is also the most
persuasive doctor to give an impairment
rating under the AMA Guides for the leg, and
therefore Plaintiff is found to have a 4%
impairment rating. Therefore it appears that
the Plaintiff’s benefits would be calculated
as follows: $381.77 [average weekly wage
multiplied by two-thirds, but limited to 75%
of the state average weekly wage] x 4%
[impairment rating] x .65% [factor under KRS
342.730(1)(b)] x 3.0 [multiplier under KRS
342.730(1)(c)(1) when Plaintiff does not
retain the physical capacity to return to
prior work] = $29.78. Those are the amounts
Plaintiff would be entitled to an a weekly
basis in this claim.
Sidney Coal filed a petition for reconsideration
arguing that the ALJ should not have applied the three multiplier
with regard to Finley’s ankle injury.
The ALJ overruled the
petition for reconsideration and clarified his opinion and award
as follows:
The Administrative Law Judge continues to
find Dr. Rapier to be persuasive. He related
that the Plaintiff’s condition was due to the
injury, from which it is inferred that both
the back and leg injuries were involved.
Plaintiff’s impairment rating was given for
both such injuries. Likewise, the
restrictions given by Dr. Rapier was [sic]
based upon these injuries. Therefore, the
Administrative Law Judge does find that the
multipliers contained in the opinion and
award was [sic] correct.
-7-
Sidney Coal appealed the ALJ’s adverse ruling on this
issue to the Workers’ Compensation Board.
The Board found the
ALJ’s ruling that applied the three multiplier to be appropriate
and to be supported by substantial evidence in the record.
In
support of its conclusion, the Board stated:
Dr. Rapier stated that as a result of his
injuries, Finley could no longer perform his
job duties at Sidney. The ALJ reasonably
interpreted Dr. Rapier’s finding to mean that
the residuals from Finley’s left ankle
injury, at least in part, contributed to his
inability to return to the type of work he
was performing on September 14, 2000. We
remind Sidney that an Administrative Law
Judge is granted broad discretion as a matter
of law to make such inferences. Jackson v.
General Refractories Co., Ky. 581 S.W.2d 10
(1979).
Sidney Coal now petitions this Court for review on the
issue as to whether the award for the leg fracture was improperly
enhanced by the multiplier of three, as required by KRS
342.730(1)(c)(1).
Sidney Coal argues that the ALJ’s decision to
apply the multiplier of three to the award for the left leg
fracture was not supported by substantial evidence.
Particularly, Sidney Coal submits that the three multiplier
should be applied only if the residuals of Finley’s left leg
fracture had, in any way, contributed to Finley’s decision to
stop working.
In support of its argument, Sidney Coal points to
Finley’s deposition testimony where Finley stated that he
intended to abandon his employment with J. H. Taylor Mining
because of his back injury.
In fact, the record is devoid of any
references to Finley’s left leg complaints contributing to his
-8-
decision to stop working.
Thus, Sidney Coal argues that because
Finley failed to specifically point out that his leg fracture
contributed to his decision to stop working, the ALJ’s
enhancement of Finley’s award for the left leg fracture was not
supported by substantial evidence.
As the fact-finder, the ALJ has the sole authority to
determine the weight, credibility, substance and inferences to be
drawn from the evidence.5
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.6
Furthermore,
the Board may not substitute its judgment for that of the ALJ in
matters involving the weight to be afforded the evidence in
questions of fact.7
And, a finding of fact cannot be disturbed
on appeal if there is substantial evidence to support it.8
Substantial evidence has been conclusively defined by Kentucky
courts as that which, when taken alone or in light of all the
evidence, has probative value to induce conviction in the mind of
a reasonable person.9
5
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418,
419 (1985).
6
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15,
16 (1977).
7
See KRS 342.285(2).
8
Jackson, supra at 11.
9
Bowling v. Natural Resources & Environmental Protection
Cabinet, Ky.App., 891 S.W.2d 406, 409 (1994) (citing Kentucky
State Racing Commission v. Fuller, Ky., 481 S.W.2d 298, 308
(1972). See also Blankenship v. Lloyd Blankenship Coal Co.,
Inc., Ky., 463 S.W.2d 62 (1970).
-9-
This Court’s function in reviewing the Board’s decision
is “to correct the Board only where [we perceive that] 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.”10
Guided by these legal principles, our
analysis will focus on whether the ALJ’s actions were
impermissible, and the affirmance thereof by the Board amounted
to an error so flagrant as to cause gross injustice.
As explained by the Board, there was evidence from Dr.
Rapier’s report to support the ultimate conclusion reached by the
ALJ.
Dr. Rapier assessed a four percent impairment rating
directly attributable to the Finley’s ankle injury.
This
physician also found evidence of atrophy in Finley’s left calf
and thigh.
Dr. Rapier also states in his report that he is aware
of the physical requirements of Finley’s employment activities
and that, due to Finley’s medical conditions, Finley no longer
retains the physical capacity to return to the coal mining
occupation.
We believe that this evidence is sufficient to
support the ALJ’s decision to utilize the three multiplier.
Additionally, the ALJ considered the entire record and simply
determined that Dr. Rapier’s medical report was the most credible
evidence concerning Finley’s medical condition.
The ALJ acted
well within his discretion as fact-finder by determining that
Finley’s inability to return to coal mining was caused by both
10
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
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his back and leg injuries.
Therefore, the Board’s affirmance of
that decision in no way caused an injustice.
Accordingly, the decision by the Board upholding the
ALJ’s application of the three multiplier with regard to Charles
Finley’s ankle injury is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. Stuart Bennett
Lexington, Kentucky
Randy G. Clark
Pikeville, Kentucky
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