CONKRIGHT CUSTOM SIDING v. RANDALL ROCK; ROBERT L. WHITAKER, DIRECTOR OF WORKERS' COMPENSATION FUNDS; R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: June 25, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001912-WC
CONKRIGHT CUSTOM SIDING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-93-29455
RANDALL ROCK; ROBERT L.
WHITAKER, DIRECTOR OF WORKERS'
COMPENSATION FUNDS; R. SCOTT
BORDERS, ADMINISTRATIVE LAW
JUDGE; AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON AND VANMETER, JUDGES.
VANMETER, JUDGE.
Conkright Custom Siding has petitioned for
review of an opinion of the Worker’s Compensation Board
(“Board”) entered on August 13, 2003, which affirmed the
Administrative Law Judge’s (“ALJ”) decision granting Randall
Rock’s motion to reopen his work-related injury claim and
awarding him benefits based upon a finding of a permanent, total
disability.
Having concluded that the Board did not err by
affirming the ALJ’s granting of Rock’s motion to reopen and
awarding him benefits based on an increase in occupational
disability, we affirm.
On July 12, 1993, Rock sustained a work-related injury
while lifting an extension ladder in the course of his
employment with Conkright.
Rock’s attending physician, Dr.
Patrick O’Neill, subsequently took him off work.
Upon
undergoing an MRI, which revealed a ruptured disc, Dr. O’Neill
referred Rock to Dr. David Eggers, a neurosurgeon.
On September
8, 1993, Dr. Eggers performed lumbar surgery to relieve Rock’s
right leg radiculopathy.
Following the surgery, Rock underwent
physical therapy until the pain in his left leg persisted and
revealed that Rock had developed left leg radiculopathy.
Rock
began seeing Dr. Randall Oliver, a pain specialist, for further
medical treatment.
Subsequently, Rock entered into a settlement agreement
for compensation with Conkright based on a forty percent (40%)
permanent partial disability, which was approved by an order
from the ALJ on May 26, 1994, and with the Special Fund,
approved on September 15, 1994.
In addition, the settlement
agreement provided that Rock received $2,000.00 in vocational
rehabilitation benefits.
Rock has not returned to any
employment since his July 1993 work-related injury.
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On December 11, 2000, Rock filed a motion to reopen
his injury claim under KRS 342.125.
In support of Rock’s motion
to reopen, he submitted medical proof consisting of a deposition
transcript of Dr. Oliver, a medical report from Dr. O’Neill and
the medical records of Dr. Eggers.
Rock also attached an
affidavit to the motion alleging that he had suffered a
significant increase of occupational disability due to his
worsening lumbar condition.
The medical report from Dr. O’Neill
concluded that Rock suffered from acute and chronic low back
pain due to a diffused disk bulge left at the L4-5 level, which
produced effacement of the ventral thecal sack.
Dr. O’Neill
further concluded that Rock was permanently and totally
disabled.
The basis for Rock’s motion to reopen was that his
condition continued to deteriorate, which resulted in greater
restrictions, more pain and irritation, and the need for
continued medical care.
On January 24, 2001, the ALJ granted
Rock’s motion to reopen based on KRS 342.125.
The merits of
Rock’s assertion that he was entitled to additional benefits was
decided in his favor on March 21, 2003, according to the
standard in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968).
The
ALJ awarded Rock $186.68 per week as permanent, total disability
benefits for so long as he is disabled.
In an opinion entered on August 13, 2003, in finding
that there was substantial evidence in the record to support the
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ALJ’s conclusion, the Board affirmed the ALJ’s permanent
disability benefits.
Conkright’s petition for review to this
court followed.
First, Conkright argues that Rock failed to meet his
burden of proof to succeed on a motion to reopen under KRS
342.125 and that no substantial evidence supports the finding
that Rock experienced an increase in occupational disability.
Under KRS 342.125, a motion to reopen is the
procedural device for invoking jurisdiction of the Department of
Workers’ Claims to reopen a final award.
To prevail, the movant
must offer prima facie evidence of one of the grounds for
reopening under KRS 342.125(1).
Stambaurgh v. Cedar Creek
Mining Co., Ky., 488 S.W.2d 681 (1972).
Upon granting the
motion to reopen, the movant then proceeds to litigate the
merits of an assertion that he or she is entitled to additional
income benefits under KRS 342.730.
Id.
In Woodland Hills Mining, Inc. v. McCoy, Ky., 105
S.W.3d 446, 448 (2003), the Court held that where a claim had
arisen and had been settled prior to the 1996 amendments to KRS
342.125,1 the date of the injury controlled which version of KRS
342.125 would govern the evidentiary standard on a motion to
1
Effective December 12, 1996, KRS 342.125(1) was amended to change the
relevant ground for reopening from “a change in occupational disability” to
“a change of disability as shown by objective medical evidence of worsening
or improvement of impairment . . . .”
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reopen.
See also Dingo Coal Co., Inc. v. Tolliver, Ky., 129
S.W.3d 367, 370-71 (2004).2
In the present case, the requirement
for reopening that existed on the date of Rock’s injury
controlled the rights and obligations of the parties, even
though Rock’s motion to reopen was filed after the enactment of
the 1996 amendment.
Woodland Hills Mining, Inc., 105 S.W.3d at
448.
Thus, the burden was on Rock to prove that his
occupational disability increased between the date of the award
and the date of his motion to reopen.
Rock succeeded in
persuading the ALJ that he experienced an increase in
occupational disability and that he was totally disabled.3
On
appeal to the Board, Rock had the burden to prove that the ALJ’s
conclusion was supported by substantial evidence.
Special Fund
v. Francis, Ky., 708 S.W.2d 641, 643 (1986); Wolf Creek
Collieries v, Crum, Ky. App., 673 S.W.2d 735, 736 (1984).
Substantial evidence is defined as “evidence of
substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.”
Smyzer v. B.F.
2
In Dingo Coal Co., 129 S.W.3d at 370, the court held that reliance on
Peabody Coal Co. v. Gossett, Ky., 819 S.W.2d 33 (1991), “is misplaced where
an appeal concerns the decision on the merits of a reopening for additional
benefits under KRS 342.730.”
3
In McNutt Construction/First General Services v. Scott, Ky., 40 S.W.3d 854,
859-60 (2001) the court concluded: “[D]etermining whether a particular worker
has sustained a partial or total occupational disability as defined by KRS
342.011(11) clearly requires a weighing of the evidence concerning whether
the worker will be able to earn an income by providing services on a regular
and sustained basis in a competitive economy.”
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Goodrich Chemical Co., Ky., 474 S.W.2d 367, 369 (1971).
As a
fact-finder, the ALJ has the authority to determine the quality,
character, and substance of all the evidence.
Square D Co. v.
Tipton, Ky., 862 S.W.2d 308, 309 (1993); Paramount Foods, Inc.
v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985).
The ALJ is the
sole judge of the weight of and inferences to be drawn from the
evidence.
Miller v. East Ky. Beverage/Pepsico, Inc., Ky., 951
S.W.2d 329, 331 (1997).
Also, the ALJ may reject any testimony
and believe or disbelieve various parts of the evidence,
regardless of whether it was presented by the same witness or
the same adversary party’s total proof.
Ky., 19 S.W.3d 88, 96 (2000).
Magic Coal Co. v. Fox,
The mere fact that there was
evidence contrary to the ALJ’s conclusion upon reopening is
insufficient to support a reversal on appeal.
Whittaker v.
Rowland, Ky., 998 S.W.2d 479, 482 (1999).
On petition for our review, “the Court of Appeals is
to correct the Board only where the Court perceives the Board
has overlooked or misconstrued controlling statues 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, 687-88 (1992).
Based on the foregoing, we
conclude that the Board did not err, as there was substantial
evidence to support the ALJ’s finding that Rock had an increase
in occupational disability.
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The merits of Rock’s motion to reopen were decided in
his favor and, relying on the standard in Osborne v. Johnson,
Ky. App., 432 S.W.2d 800 (1968),4 the ALJ concluded:
[T]he medical records chronicle the
increased symptoms and worsening of Mr.
Rock’s condition over the years including
the increased restrictions that would limit
him to less than sedentary type of work.
After careful consideration of Mr. Rock’s
age, limited education, academic skills, and
prior work history consisting solely of
manual labor positions, and the medical
evidence of record, the Administrative Law
Judge finds that Mr. Rock is permanently and
totally disabled.5
Finding that the ALJ’s decision was based on substantial
evidence, the Board held on appeal as follows:
Conkright points to the evidence that Rock
never returned to work and was never
symptom-free following his settlement. It
emphasizes the medical evidence in the
record that Rock was unqualified to perform
his past jobs in 1994, and his physical and
occupational impairment has not worsened
since that time.6 It relies in part on the
4
In Dingo Coal Co., 129 S.W.3d at 371, the court ultimately held: “[t]he
claimant’s injury and award both occurred before December 12, 1996. His
subsequent motion to reopen was granted, and the merits of his assertion that
he was entitled to additional benefits were decided in his favor under the
Osborne v. Johnson standard. As we have explained, that was the appropriate
standard for considering the merits of a motion to reopen a pre-December 12,
1996, award.” (Citation omitted.) Here, Rock’s award was entered in 1994.
5
The ALJ specifically considered the fact that Rock failed to graduate from
high school, failed to earn a GED, had a work history of only manual labor
and his restrictions increased, which precluded him from jobs involving
manual labor.
6
Conkright makes a similar argument for our review; however, we find no error
in the Board’s analysis.
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fact Rock never participated in vocational
rehabilitation.
While the evidence in the record might very
well have supported the finding Conkright
seeks, there remains substantial evidence to
support a finding of an increase in
occupational disability. Special Fund v.
Francis, Ky., 708 S.W.2d 641 (1986). Here,
Rock testified that he is now capable of
less activity than at the time of the
original settlement. While he may not have
returned to work following the injury, that
fact does not preclude a finding of total
disability on reopening. Rock’s testimony
concerning his physical capabilities and
ability to labor is relative and probative
regarding the extent of occupational
disability. See McNutt Construction Co. v.
Scott, Ky., 40 S.W.3d 854 (2001); Hush v.
Abrams, Ky., 584 S.W.2d 48 (1979).
Contrary to Conkright’s arguments, there is
medical evidence that Rock is now more
restricted than at the time of the original
settlement. As noted by the ALJ, Dr. Eggers
increased Rock’s restrictions and Dr.
O’Neill believed Rock to be totally
occupationally disabled in 1995.7 The fact
that Rock did not undergo vocational
rehabilitation has no bearing on the issue
on appeal since a claimant need not be
totally occupationally disabled to be
awarded rehabilitation benefits. Haddock v.
Hopkinsville Coating Corp., Ky., 62 S.W.3d
387 (2001).
See also McNutt Construction, 40 S.W.3d at 860.
7
Specifically, after Rock’s surgery and prior to the settlement in 1994, Dr.
Eggers restricted Rock to a twenty-five (25) pound limit and no stooping, no
bending, no squatting, no climbing, as well as recognizing his ability to sit
for an hour and a half and walk for about one mile. In 1995, Dr. Eggers
increased Rock’s restrictions to a ten (10) pound weight limit and only
thirty (30) minutes of walking, standing and sitting. In April 1995, Dr.
O’Neill stated in his medical report that Rock had suffered irreversible
damage to his back and that he will never be gainfully employed again.
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Even so, Conkright argues that Dr. O’Neill’s medical
report was “only a different expression” of opinion concerning
Rock’s disability, which should not have been considered as a
controlling factor in finding that Rock had an increase in
occupational disability.
However, “[i]t is among the functions
of the ALJ to translate the lay and medical evidence into a
finding of occupational disability,” McNutt Construction, 40
S.W.3d at 860, and, as the ultimate fact-finder, the ALJ has the
sole discretion to determine the quality, character and
substance of the evidence presented.
Whittaker, 998 S.W.2d at
481-81; Square D Co., 862 S.W.2d at 309; Paramount Foods, Inc.,
695 S.W.2d at 419.
As such, we are not persuaded that the ALJ
overlooked or misunderstood any relevant evidence with respect
to Rock’s permanent disability or that the Board’s review of the
evidence was erroneous.8
Finally, Conkright argues that the Board erred since
the evidence compelled a finding of a pre-existing active
disability based on a 1987 work-related injury, which Rock
8
Conkright cites Gro-Green Chemical Co. v. Allen, Ky. App., 746 S.W.2d 69
(1987), for the proposition that a change of physical condition, by itself,
is insufficient to support a finding of increased occupational disability.
Unlike the present case, the evidence in Gro-Green consisted only of an
increase in functional impairment. Additionally, both Gro-Green and Central
City v. Anderson, Ky. App., 521 S.W.2d 246 (1975), were decided prior to the
1987 amendment to KRS 342.125, which permitted reopening upon evidence of
increased occupational disability due to a “change of condition” that was
interpreted by the courts as a change of physical condition. See Continental
Air Filter Co. v. Blair, Ky., 681 S.W.2d 427, 428 (1984). In 1987, KRS
342.125(1) was amended and the phrase “change of condition” was replaced with
“change of occupational disability.”
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settled for in the amount of 16.9%.
Conkright cites Wells v.
Bunch, Ky., 692 S.W.2d 806, 808 (1985), quoting Griffin v. Booth
Memorial Hospital, Ky., 467 S.W.2d 789, 790 (1971), for the
following rule:
“The test is not whether the employe [sic]
is working, but how much, if any,
occupational disability, by the standards
employed in determining allowance for
workmen’s compensation benefits, the
employe’s [sic] condition evidenced
immediately before he received the second
injury.”
Conkright contends that since Rock had a pre-existing active
disability, Rock’s weekly benefits for experiencing total
occupational disability are erroneous.
However, the ALJ
rejected this argument and concluded:
The parties are the ones obligated to raise
said issues not the Administrative Law
Judge. A Benefit Review Conference was held
on January 22, 2003 and an Order and
Memorandum was signed and agreed to by all
parties indicating that the sole contested
issue was whether or not Plaintiff had an
increase in occupational disability.
Further the Administrative Law Judge was in
fact well
. . . [aware] of the preexisting settlement and finds that the
Defendant/Employer failed to meet their
burden of proving that the Plaintiff
suffered from any pre-existing active
occupational disability.
On appeal, the Board held:
While there was evidence in the record to
indicate that Rock may have sustained an
occupationally disabling injury in 1987,
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there was also testimony from Rock that he
was able to perform all his job functions
prior to the 1993 injury with Conkright.
This testimony, standing alone, is
sufficient to support the award without any
carve out for a preexisting condition.9
Accordingly, we find that the Board’s review of the evidence was
not erroneous, as the ALJ’s decision was based on substantial
evidence.
Based on the foregoing, the opinion of the Worker’s
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Ronald M. Sullivan
Sullivan, Mountjoy,
Stainback & Miller, P.S.C.
Owensboro, Kentucky
BRIEF FOR APPELLEE RANDALL
ROCK:
Daniel Caslin
Caslin Law Offices, P.S.C.
Owensboro, Kentucky
BRIEF FOR APPELLEE ROBERT L.
WHITAKER, DIRECTOR OF
WORKERS’COMPENSATION FUNDS:
David W. Barr
Frankfort, Kentucky
9
“A worker’s testimony is competent evidence of his physical condition and of
his ability to perform various activities both before and after being
injured.” McNutt Construction, 40 S.W.3d at 860. See also Hush v. Abrams,
Ky., 584 S.W.2d 48 (1979).
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