UNITED STATES STEEL CORPORATION v. RANDALL WEBB; WORKERS' COMPENSATION FUNDS/SPECIAL FUND; WILLIAM BRUCE COWDEN, JR., Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: April 16, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court Of Appeals
NO. 2003-CA-001913-WC
UNITED STATES STEEL CORPORATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-77-14300
v.
RANDALL WEBB;
WORKERS’ COMPENSATION FUNDS/SPECIAL FUND;
WILLIAM BRUCE COWDEN, JR., Administrative Law Judge;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MINTON, and VANMETER, Judges.
MINTON, Judge:
United States Steel Corporation (US Steel)
seeks review of a Workers’ Compensation Board (Board) opinion
that affirmed the decision of an Administrative Law Judge (ALJ)
awarding
Randall
Webb
total
disability
benefits
for
a
related ankle injury and associated psychological overlay.
workThe
only issue on appeal concerns apportionment for that portion of
Webb’s disability due to his psychological problems.
Finding
that Webb’s psychological disability was caused by his physical
injury
and
previously
was
not
dormant
due
to
the
personality
or
arousal
of
a
psychological
preexisting,
disorder,
the
ALJ assigned all liability for it to Webb’s employer, US Steel.
US Steel asserts that all liability for Webb’s psychological
disability should be assigned to the Workers’ Compensation Funds
(WCF)1 and that the Board committed flagrant error in assessing
the evidence on the etiology of Webb’s psychological disability
and the issue of apportionment.
Webb
suffered
a
serious
work-related
injury
to
his
right ankle on February 19, 1977,2 when he was employed as a coal
miner.
He was twenty-seven years old at the time.
US Steel
began paying him temporary total disability (TTD) benefits on
February 20, 1977.
claim
concerning
He filed an application for adjustment of
his
ankle
injury
on
August
23,
1978.
On
October 9, 1978, the Board entered an order granting US Steel’s
motion to hold the case in abeyance until one of the parties
requested a hearing.
Pursuant to Webb’s request, a hearing was
conducted in this matter on July 24, 1981.
1
In August 1981, Webb
WCF is the statutory successor to the Special Fund.
2
The initial injury date has been stipulated in the record as
February 18, 1977, by US Steel, and as February 19, 1977, by Webb.
The ALJ found the date to be February 19, 1977, but the Board found
the date to be February 18, 1977.
We have settled on February 19,
1977. Regardless, the date of the injury does not affect our holding.
2
amended
his
application
for
adjustment
of
claim
to
include
traumatic neurosis and injury to his knee and back caused by
alteration of his gait and posture due to his ankle injury.
The
Board, on its own motion, then ordered that the Special Fund be
joined as a party.
However, the Board also granted another
motion by US Steel in August 1981 to hold the case in abeyance
until
the
termination
of
TTD
benefits
or
until
one
of
the
parties requested that it be removed from abeyance.
Throughout the 1980’s, Webb attempted, by counsel, to
have his case removed from abeyance based on evidence showing
that
he
had
reached
maximum
medical
successfully opposed these efforts.
improvement.
C.
Lowther,
Chief
ALJ,
Steel
Webb continued to receive
TTD benefits, but his case remained in stasis.
Shelia
US
ordered,
In July 2002,
pursuant
motion, that the case be removed from abeyance.
to
her
own
On May 5, 2003,
when Webb was fifty-two years old, William Bruce Cowden, Jr.,
ALJ,
entered
an
opinion,
order,
and
award
in
Webb’s
favor,
finding him to be totally disabled as a result of his ankle
injury and associated psychological problems caused by his ankle
injury.
The ALJ assigned all liability to Webb’s employer, US
Steel.
On appeal before the Board, US Steel argued that all
liability for Webb’s psychological disability should be assigned
to the WCF because his psychological disability was due entirely
to
a
preexisting,
previously
3
dormant
personality
or
psychological disorder, specifically bipolar disorder, which was
triggered into disabling reality by his ankle injury.
The Board
affirmed the ALJ’s decision in an opinion entered August 20,
2003.
US Steel then filed this petition for review.
The standard of review dictates that we correct the
Board
only
when
we
perceive
that
it
“has
overlooked
or
misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross
injustice.”3
The
only
issue
raised
by
US
concerns the assessment of the evidence.
Steel
on
appeal
US Steel essentially
reiterates its claims before the Board, arguing that the ALJ’s
determination that Webb’s psychological disability is not due to
the arousal of a preexisting, previously dormant, nondisabling
disease
or
discretion
condition
because
into
it
is
disabling
not
reality
supported
is
by
an
any
abuse
of
substantial
evidence.
Where
the
party
bearing
the
burden
of
proof
is
unsuccessful before the ALJ, the question on appeal is whether
the evidence compels a different result.4
Compelling evidence is
defined as evidence that is so overwhelming that no reasonable
3
Western
(1992).
4
Wolf
(1984).
Baptist
Creek
Hosp.
v.
Kelly,
Collieries
v.
Crum,
4
Ky.,
827
Ky.App.,
S.W.2d
673
685,
S.W.2d
687-88
735,
736
person could reach the same conclusion as the ALJ.5
It is not
enough for US Steel merely to show that there is some evidence
that would support a contrary conclusion.6
opinion
is
supported
by
any
evidence
of
So long as the ALJ’s
substance,
then
it
cannot be said that the evidence compels a different result.7
The authority to determine the weight, credibility, substance,
and inferences to be drawn from the evidence belongs solely to
the ALJ as fact finder.8
The ALJ may choose to believe parts of
the evidence and disbelieve other parts, even if it comes from
the same witness or the same party’s total proof.9
not
substitute
its
judgment
for
that
of
the
The Board may
ALJ
in
matters
involving the weight to be afforded the evidence on questions of
fact.10
Apportionment is governed by Kentucky Revised Statutes
(KRS) 342.120.
The relevant statute in effect in 1977 when Webb
was injured stated that the then Special Fund could be made a
party to a workers’ compensation proceeding when “[t]he employe
5
REO Mech. v. Barnes, Ky.App., 691 S.W.2d 224, 226 (1985).
6
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46, 47 (1974).
7
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
8
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
9
Caudill v. Maloney’s Disc. Stores, Ky., 560 S.W.2d 15, 16 (1977).
10
KRS 342.285(2).
5
[sic]
is
found
to
have
a
dormant
non-disabling
disease
or
condition which was aroused or brought into disabling reality by
reason
of
a
subsequent
occupational disease.”11
the
subsequent
compensable
injury
by
accident
or
an
Further, the statute provided that if
compensable
injury
or
occupational
disease
results in a permanent disability which is greater than that
which
would
have
resulted
from
the
subsequent
injury
or
occupational disease alone, the employer is responsible only for
the
disability
which
would
have
resulted
from
the
injury
or
occupational disease if there had been no preexisting dormant
disease or condition and the Special Fund is liable for the
remaining disability.12
not
matter
whether
the
For purposes of apportionment, it does
pre-existing
disease
or
condition
is
characterized as a physical condition or a mental condition.13
Both
parties
psychological
agree
that
disability
whether
should
any
be
liability
apportioned
for
to
Webb’s
WCF,
the
statutory successor to the Special Fund, depends on two things:
1) whether Webb had a preexisting, dormant, nondisabling disease
or condition which was brought into disabling reality by his
work-related
11
12
ankle
injury,
and
2)
whether
this
previously
KRS 342.120(1)(b) (emphasis in original).
KRS 342.120(3)-(4).
7 S.W.3d 363, 364 (1999).
See
also
13
Whittaker
v.
Troutman,
Ky.,
Whittaker, 7 S.W.3d at 364, citing Young v. Bear Branch Coal Co.,
Ky., 465 S.W.2d 41 (1971).
6
dormant disease or condition resulted in a greater disability
than
the
ankle
injury
alone
otherwise
would
have.
In
this
instance, the Board correctly applied the governing law, and the
Court
perceives
no
error
in
its
assessment
of
the
evidence.
There was substantial evidence to support the ALJ’s decision
that
Webb’s
psychological
condition
was
not
due
to
a
preexisting, previously dormant condition and his decision to
assign
all
liability
for
Webb’s
psychological
disability
to
US Steel.
To place the evidence concerning Webb’s psychological
disability into perspective, it is helpful to understand his
physical disability.
Despite multiple surgeries on his right
ankle, Webb continues to experience ankle pain.
Even with the
assistance of a leg brace and a cane, he walks with a severe
limp and is unable to walk or stand for more than brief periods
of time.
The changes in his gait and posture due to his ankle
injury have caused secondary pain in his back and knee.
Since
his work-related injury, Webb has also experienced psychological
problems severe enough to require hospitalization.
concedes
that
as
a
result
of
his
combined
US Steel
physical
psychological conditions, Webb is totally disabled.
issues
on
appeal
concern
the
exact
etiology
and
The only
of
Webb’s
psychological problems and the significance of that etiology on
the issue of apportionment.
The evidence before the ALJ on the
7
Webb’s psychological condition came primarily from the medical
report
of
Robert
Noelker,
Ph.D.,
a
licensed
clinical
psychologist, and the medical report and deposition of O. M.
Patrick, M.D., a general surgeon.
Noelker
performed
included
a
evaluated
comprehensive
administering
performing
Webb
a
a
diagnostic
extensive history.
on
August
psychological
battery
clinical
of
7,
1981.
evaluation,
psychological
interview,
and
He
which
tests,
obtaining
an
In his medical report dated August 24, 1981,
Noelker noted that Webb’s IQ fell within the “bright, average
range
of
skills,”
development”
which
and
that
combined
to
he
had
indicate
“good
basic
significant
academic
academic
rehabilitation potential.
However, Noelker concluded that Webb
would
“multiple
have
to
overcome
psychological
factors
of
serious consequence” before he could attempt any occupational or
vocational rehabilitation.
He estimated that overcoming these
psychological factors would require a minimum of two to three
years
work,
including
extensive
and
intensive
psychotherapy.
Noelker diagnosed Webb with severe reactive depression, severe
post-traumatic
anxiety,
and
severe
somatization
disorder.
Regarding the etiology of these conditions, Noelker stated as
follows:
“The
obviously
related
cause
to
in
his
these
particular
industrial
8
accident,
instances
his
seem
subsequent
disability, and those psychological characteristics have arisen
out of his inability to perform productively.”
Patrick
examined
Webb
on
November
16,
2002.
His
examination included obtaining a patient history, performing a
physical examination, and reviewing x-rays.
medical
report,
Patrick
diagnosed
Webb
In his Form 107-I
with
the
following:
“(1) Ankylosis of the right ankle with arthritis of the ankle
mortis producing pain, gait disturbance, secondary back pain,
and
(2)
manic
depression
reaction
(bipolar
state
phase) and post traumatic stress syndrome.”
Webb
as
having
68%
whole
body
impairment14
depressive
Patrick assessed
for
his
physical
condition due to his February 19, 1977, work-related injury.
However,
he
also
noted
that
“[t]he
patient
has
additional
significant impairment due to bipolar reaction depressive phase
preventing gainful employment.”
Regarding the causation of Webb’s complaints, Patrick
indicated
that,
within
reasonable
medical
probability,
the
“[i]njury that occurred on February 19, 1977,” was the cause of
Webb’s complaints.
He also checked the box on the Form 107-I
indicating that Webb did not have an active impairment prior to
this injury.
However, Patrick did not address the issue of
14
Based on the American Medical Association’s
Evaluation of Permanent Impairment, Fifth Edition.
9
Guides
to
the
apportionment in his Form 107-I medical report.15
He did not
check the appropriate box to indicate whether Webb’s condition
was
due
in
part
to
arousal
of
a
preexisting,
nondisabling condition or congenital abnormality.
dormant,
However, in a
deposition, Patrick elaborated further on the etiology of Webb’s
psychological
disorder
or
depression,
condition.
bipolar
with
He
first
reaction
bipolar
is
US Steel’s
counsel,
Patrick
the
disorder
preferred, current nomenclature.
explained
same
or
that
thing
reaction
bipolar
as
manic
being
the
In response to questions by
explained
the
etiology
of
Webb’s
bipolar reaction or manic depression and its connection to his
physical injury:
Q.
Doctor, isn’t it true that physical
trauma does not in and of itself cause manic
depression?
A.
It can.
Q.
Sir?
A.
It can.
It can cause the onset of it.
Q.
Well, but the trauma in and of itself,
does that cause manic depression?
A.
I don’t think the trauma itself, but it
can bring it into activity.
15
The instructions under the section entitled “APPORTIONMENT” on
Patrick’s Form 107-I report read as follows:
“Answer only if injury
occurred before December 12, 1996. (NOT APPLICABLE).” The Court notes
that these instructions may have given the erroneous impression that
apportionment would not be available in Webb’s case under any
circumstances.
10
Q.
That brings me to the next question,
isn’t it also true that where there is
bipolar
reaction
or
manic
depressive
reaction to physical trauma, that reaction
occurs because of a psychiatric or personality disorder that preexisted the physical
trauma but was dormant and nondisabling
prior to the physical trauma?
A.
That’s true.
Q.
In your opinion, did this man have a
preexisting dormant nondisabling psychiatric
or personality disorder in the form of manic
depression by the 1977 trauma?
A.
I think
the
triggered it, yes.
1977
trauma
is
what
Q.
Was that preexisting psychiatric or
personality disorder a departure from the
normal state of health even though it was
dormant and nondisabling and even though no
one would have ever known plaintiff had that
psychiatric or personality disorder but for
the trauma that brought it into disturbing
reality?
A.
I think it was dormant before
injury which brought it into reality.
the
Q.
And that is a departure from the normal
state
of
health
even
though
it’s
not
manifest?
A.
Well, in retrospect looking at it it
[sic] is. At the time you wouldn’t know it
before, but in retrospect I would say yes,
it is.
Q.
But
for
the
preexisting
dormant
nondisabling
psychiatric
or
personality
disorder, would the 1977 trauma have caused
the manic depression?
11
A.
I think in this case it would not have
caused it had there not been that potential
for it to be there to trigger it.16
US Steel’s counsel also elicited Patrick’s testimony that he had
treated “a lot of patients” with manic depression or bipolar
reaction and had witnessed the disorder’s affect upon a person
with whom he had a thirty-year partnership.
When US Steel’s
counsel asked Patrick to address Webb’s aggregate impairment and
the
appropriate
apportionment,
the
following
exchange
place:
Q.
....How would you apportion the percentage of this man’s overall aggregate
disability between the physical condition of
his right ankle and the manic depression?
A.
I
give
him
a
68-percent
partial
permanent
functional
impairment
rating
according to the impairment that he had from
the injury to the ankle, and I feel that he
has another 32-percent impairment as a
result of the disability from the bipolar
[sic].
Q.
So
from
your
standpoint
if
you
apportioned the total aggregate disability
that he has, which is we agree total
disability, you would apportion 68 percent
of that to the physical condition of the
ankle from the injury and 32 percent to the
traumatic arousal of the psychiatric or
dormant [sic] personality disorder?
A.
I think that’s a reasonable assumption,
yes.17
16
Patrick Deposition at 7-9.
17
Id. at 10.
12
took
The
ALJ
ultimately
disability
was
not
previously
dormant,
due
to
found
the
psychological
that
Webb’s
psychological
arousal
of
preexisting,
disease
a
or
disorder
into
disabling reality, as described by Patrick, but rather evolved
from his ankle injury, as described by Noelker.
In reaching
this conclusion, the ALJ engaged in an explicit weighing of the
evidence as follows:
The Administrative Law Judge notes for the
record that Dr. Patrick indicates that his
specialty is that of General Surgeon.
The
Administrative
Law
Judge
finds
that
Dr. Patrick’s expertise is not in the field
of psychiatry and, therefore, any opinion he
renders
as
to
the
etiology
of
the
Plaintiff’s mental condition is suspect.
Assuming arguendo that Dr. Patrick does have
the expertise to render an opinion on
apportionment
as
it
applies
to
the
Plaintiff’s mental condition, the Administrative Law Judge must adopt Dr. Noelker’s
opinion
as
to
the
etiology
of
the
Plaintiff’s mental condition and will find
that this opinion has more credibility.
In
particular, the Administrative Law Judge
cites to the medical report of Dr. Noelker
dated August 24, 1981 who opined that the
etiology of the Plaintiff’s severe reaction
depression, severe post traumatic anxiety
and
severe
somatization
disorder
is
obviously
related
to
the
industrial
accident,
his
subsequent
disability
and
those psychological characteristics arising
out of his inability to perform productively.
The
Administrative
Law
Judge
interprets this language so as to attribute
the entirety of the Plaintiff’s psychiatric
impairment to the work-related injury in
question.
13
US Steel asserts that it was an abuse of discretion
for the ALJ to rely upon the medical report of Noelker because
Noelker did not establish his qualifications in compliance with
803 Kentucky Administrative Regulation (KAR) 25:010, § 10(4).18
Indeed, Noelker’s report does not appear to contain a statement
of his medical qualifications as required by that administrative
regulation.
The only information about Noelker’s academic or
professional qualifications is found in his letterhead, where he
refers to his Ph.D. degree, and his typed signature which reads
“Robert W. Noelker, Ph.D. / Licensed Clinical Psychologist.”
the
medical
report,
significant
academic
individuals
who
Noelker
also
rehabilitation
[sic]
I
see
with
states
that
potential,
In
Webb
has
“[u]nlike
many
significant
work
related
injuries or personal injuries,” suggesting that Noelker has some
experience
US Steel
with
did
not
evaluating
timely
injured
object
to
patients.
the
filing
Even
of
though
Noelker’s
medical report, it argues that it was an abuse of discretion for
the ALJ to consider the report because of the omission of a
statement of qualifications.
US Steel analogizes that this is
comparable to the ALJ considering a medical report prepared by
18
803 KAR 25:010 § 10(4) states in relevant part as follows:
“Medical reports shall include, within the body of the report or as an
attachment, a statement of qualifications of the person making the
report.”
14
Charles Manson, Saddam Hussein, or Osama Bin Laden.19
If, as
US Steel claims, 803 KAR 25:010 § 10(4) applies to Noelker’s
report,20 then it must be interpreted in conjunction with 803 KAR
25:010
§
10(6)(b).
803
KAR
25:010
§
10(6)(b)
states
that
“[o]bjection to the filing of a medical report shall be filed
within ten (10) days of the filing of the notice or the motion
for
admission.”
Significantly,
the
administrative
regulation
uses the obligatory “shall” rather than the permissive “may.”
US Steel admits that Noelker’s August 24, 1981, medical report
was first filed in the administrative record on March 5, 1982,
as an exhibit to a motion by Webb.
On November 18, 2002, Webb,
by counsel, filed a document entitled Statement of Notice of
Filing of Additional Medical Evidence in Behalf of Plaintiff in
which he designated Noelker’s August 24, 1981, medical report as
evidence
to
be
considered
by
the
ALJ.
Based
on
the
plain
meaning of 803 KAR 25:010 § 10(6)(b), US Steel had ten days from
November 18, 2002, to file any objection to the admission of
Noelker’s
report
into
evidence.
US
objections within the ten-day time period.
Steel
filed
no
such
Its failure to do so
19
The Court notes with disapproval the questionable nature of this
analogy which compares a licensed clinical psychologist to infamous
criminals or terrorists.
20
We make no decision concerning whether this administrative
regulation applies to a medical report taken in 1981 and filed in 1982
concerning a worker injured in 1977 whose claim was adjudicated by the
ALJ in 2003 because, for the reasons noted infra, the result is the
same either way.
15
would presumably constitute a waiver of any error.
However, we
decide this issue on the fact that US Steel did not raise the
issue of Noelker’s omitted statement of medical qualifications
until the appeal before the Board.
previously
within
waived
pursuant
ten
days
to
803
by
US
after
KAR
Steel’s
the
25:010
Even if this issue were not
failure
filing
§
of
to
file
notice
10(6)(b),
it
objections
for
was
admission
waived
US Steel’s failure to raise this issue before the ALJ.
by
As the
Kentucky Supreme Court stated in Urella v. Kentucky Board of
Medical Licensure, “[i]t is well settled that failure to raise
an issue before an administrative body precludes the assertion
of that issue in an action for judicial review....”21
US Steel takes issue with the ALJ’s statement that he
placed more credence in Noelker’s testimony than in Patrick’s on
the
etiology
of
Webb’s
mental
condition
in
part
because
“Dr. Patrick’s expertise is not in the field of psychiatry.”
US Steel correctly points out that Noelker’s field of expertise
is also not psychiatry.
Psychiatry is “the branch of medicine
concerned with the study, diagnosis, and treatment of mental
disorders.”22
Noelker is not a medical doctor and, therefore,
not a psychiatrist.
21
Instead, he is a clinical psychologist with
939 S.W.2d 869, 873 (1997).
22
Random House Webster’s College Dictionary 1089 (McGraw Hill ed.
1991).
16
a Ph.D.
Psychology has been defined as “the science of the mind
and mental states and processes.”23
is
qualified
to
give
a
However, as a psychologist
medical
report
as
well
as
psychiatrist,24 this is a distinction without a difference.
is
not
a
case
Noelker’s
in
status
which
and
the
ALJ
believed
him
was
somehow
to
be
a
confused
medical
a
This
about
doctor.
Notwithstanding this one minute error in terminology, the ALJ’s
opinion makes it clear that he knew and understood Noelker to be
a
licensed
clinical
psychologist.
Moreover,
the
reasoning of the ALJ’s decision is still sound.
apparent
It is well
within the ALJ’s discretion to decide to accord more weight to
the
testimony
of
a
clinical
psychologist,
an
expert
in
the
science of the mind and mental states and processes, than to
that of a general surgeon on an issue involving the etiology of
a mental disease or disorder.
This falls within the matters of
weight and credibility to be determined by the ALJ.
US Steel also seems to assert that a licensed clinical
psychologist is not qualified to give medical testimony; and,
therefore, it was unreasonable and an abuse of discretion for
the ALJ to have placed any weight in Noelker’s testimony.
its
brief,
US
Steel
states
that
that
ALJ
“has
In
essentially
accorded” Noelker the status of a physician, as if that were
23
Id. at 1090.
24
See infra.
17
somehow suspect behavior on the part of the ALJ.
However, the
definition of “[p]hysician” for purposes of the workers compensation act specifically includes “psychologists...acting within
the scope of their license issued by the Commonwealth.”25
Steel
presents
no
evidence
to
show
that
Noelker
is
US
anything
other than a licensed clinical psychologist acting within the
scope of his license.
that
the
evidence
Therefore, US Steel has failed to show
compels
a
result
contrary
to
the
ALJ’s
decision to accept the medical report of Noelker as a licensed
clinical psychologist.
On a related matter, the Court notes with disapproval
Footnote 1 of US Steel’s brief.
In this footnote, counsel for
US Steel recounts an unfortunate tale of the alleged failure of
a
clinical
psychologist,
who
has
no
apparent
connection
to
Noelker, to properly diagnose counsel’s son as suffering from
bipolar disorder.
This footnote could be viewed as an attempt
to skirt the prohibition on introducing new evidence on appeal.26
However, even if this matter were not raised for the first time
on appeal, “evidence” of this type violates Rule 3.130-3.4(e) of
the Rules of the Supreme Court (SCR).
SCR 3.130-3.4(e) states,
in relevant part, that no lawyer shall “[i]n trial, knowingly or
intentionally
allude
to
any
matter
that
the
lawyer
25
KRS 342.0011(32).
26
See White v. White, Ky.App., 883 S.W.2d 502, 505 (1994).
18
does
not
reasonably believe is relevant or that will not be supported by
admissible evidence” or
issue
except
when
“assert personal knowledge of facts in
testifying
as
a
witness.”27
Counsel
for
US Steel virtually conceded that this evidence, which was based
on his personal knowledge, was not relevant, stating that the
facts
concerning
his
son’s
misdiagnosis
“do
evidence and are included out of frustration.”
included these facts in his brief.
not
constitute
Nevertheless, he
A brief is not the proper
place to vent one’s frustration.
US Steel also implies that it was unreasonable of the
ALJ
to
give
more
credence
to
Noelker’s
medical
Patrick’s because the latter was much more recent.
report
than
Noelker’s
evaluation was performed in 1981 while Patrick’s was performed
in 2002.
However, US Steel does not present any evidence to
suggest that Webb’s psychological condition has changed between
1981 and 2002 in any relevant way.
US Steel speculates that
there have been advances in the understanding of psychological
diseases and disorders between 1981 and 2002 but fails to show
any specific advances and how they might undermine Noelker’s
report.
In any event, this matter goes toward the weight of the
evidence, which is a matter to be decided by the ALJ.
27
When an attorney may testify in a case in which he is also acting
as an advocate is further restricted by SCR 3.130-3.7.
19
Finally,
US
Steel
asserts
that
it
was
an
abuse
of
discretion for the ALJ not to find, in accordance with Patrick’s
testimony, that Webb’s psychological disability was due entirely
to
a
preexisting,
previously
dormant
condition,
bipolar
disorder, and that liability for the psychological disability
should be apportioned to WCF.
US Steel asserts that this was an
abuse of discretion because Patrick’s testimony on the etiology
of Webb’s psychological disability was uncontradicted.
US Steel
claims that Noelker simply never addressed the possibility of a
preexisting psychological condition or predisposition and hence
the issue of apportionment.
Noelker did not expressly address
the issue of apportionment.
However, he did state the cause of
Webb’s
multiple
obviously
related
psychological
to
his
diseases
industrial
or
disorders
accident,
his
“seem
subsequent
disability, and those psychological characteristics have arisen
out of his inability to perform productively.”
As the Board
noted:
[Noelker’s]
opinion
that
Webb’s
current
psychological profile has ‘arisen out of his
inability to perform productively’ provides
more than a substantial basis for the ALJ to
conclude that Webb’s condition evolved from
the injury and was not an aroused preexisting, dormant condition.
Based on the
medical evidence of record, we cannot say as
a matter of law the ALJ’s opinion is wholly
unreasonable.
20
We agree with the Board’s reasoning on this matter and adopt it
as our own.
For the foregoing reasons, the opinion of the Worker’s
Compensation Board entered August 20, 2003, is affirmed.
ALL CONCUR
BRIEF FOR APPELLANT:
William A. Rice
RICE & HENDRICKSON
Harlan, Kentucky
BRIEF
FOR
APPELLEE
WORKERS’
COMPENSATION FUNDS / SPECIAL
FUND:
David W. Barr
Frankfort, Kentucky
NO BRIEF
WEBB
21
FOR
APPELLEE
RANDALL
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
