SIDNEY COAL COMPANY, INC. v. PAUL DAVID OWENS; HON. JOHN B. COLEMAN, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION FUNDS (SUCCESSOR TO THE SPECIAL FUND); AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 3, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-000435-WC
SIDNEY COAL COMPANY, INC.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-83194
PAUL DAVID OWENS; HON. JOHN B.
COLEMAN, ADMINISTRATIVE
LAW JUDGE; WORKERS’ COMPENSATION
FUNDS (SUCCESSOR TO THE SPECIAL FUND);
AND WORKERS’ COMPENSATION BOARD
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BARBER, DYCHE, AND McANULTY, JUDGES.
McANULTY, JUDGE:
Sidney Coal Company, Inc. (Sidney Coal)
petitions for review from an opinion of the Workers’
Compensation Board (Board) affirming the opinion and award of
the Administrative Law Judge (ALJ) granting appellee Paul David
Owens’ motion to reopen his claim for workers’ compensation
benefits and awarding Owens additional benefits.
Sidney Coal
argues that Owens failed to demonstrate either a worsening of
his condition since the original award of benefits, or,
alternatively, that he failed to demonstrate that he suffered
from a permanent impairment as a result of the psychological
conditions upon which the ALJ based the additional award.
For
the reasons stated below we affirm.
In August 1996, Owens was working as a miner for
Sidney Coal Company.
On August 13, 1996, in a coal mine roof
accident, a piece of coal fell and struck Owens on the back of
the neck and lower back.
The blow shoved him forward, causing
injuries to his neck, back, right leg and right knee.
Sidney
Coal does not dispute that Owens sustained these work-related
injuries in the accident.
On October 30, 1998, Owens filed an Application for
Resolution of Injury Claim against Sidney Coal Company and the
Special Fund.
On August 24, 1999, ALJ Donald G. Smith rendered
an opinion and award determining that Owens incurred an
occupational disability of 40% as a result of the August 13,
1996 accident.
The disability rating was based upon a 30%
occupational disability for Owens’ back injury, while 10% was
due to the injuries relating to his right leg.
In the meantime, in March 1997, Owens returned to
employment with Sidney Coal.
In March 1998 an attempt was made
to remove the steel rod in his right femur.
The surgeons were
able to remove the screws, but not the rod.
Following the
surgery, Owens returned to work in May 1998.
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He moved to the
position of continuous miner operator in January, 1999.
Owens
stayed in that position until July, 1999.
After leaving Sidney Coal, Owens obtained employment
with Pike County Fiscal Court in the Solid Waste Department as a
member of its garbage pickup crew.
He initially worked as a
loader, but then moved to truck driver after receiving his CDL
license.
In February 2001, Owens began experiencing muscle
spasms and was hospitalized for depression and suicidal
tendencies the following month.
Owens received temporary total
disability benefits from February 11, 2001, through July 22,
2001.
In August 2001, Owens returned to work for Sidney
Coal.
Owens worked up until March 18, 2002, when he experienced
increased back pain while manually reeling up some cable wire.
He has not worked since March 18, 2002.
Temporary total
benefits were again instituted from March 19, 2002, through
October 28, 2002.
On November 21, 2002, Owens filed a motion to reopen
his claim for workers’ compensation benefits on the basis that
his occupational disability had worsened since the original
award.
The Chief Administrative Law Judge determined that Owens
had made out a prima facie case for reopening, and the case was
3
assigned to ALJ John B. Coleman.
A hearing on the reopening was
held on May 28, 2003, at which time Owens testified.
On August 8, 2003, the ALJ entered an opinion and
award determining that Owens had experienced a worsening of his
condition since the original opinion and award.
As determined
by the ALJ, the worsening was related to the onset of depression
and post-traumatic stress disorder brought about by the original
work-related physical injuries.
The ALJ determined that as a
result of his worsened condition, Owens had sustained a 75%
occupational disability.
The ALJ awarded benefits corresponding
to the increased occupational disability.
On January 28, 2004, the Board entered an opinion
affirming the ALJ’s decision.
This petition for review
followed.
The ALJ determined that Owens had experienced a
worsening of his condition since the original opinion and award
because of the onset of depression and post-traumatic stress
disorder brought about by the original work-related physical
injuries.
Sidney argues that the ALJ’s decision was erroneous
because there was no evidence of permanent impairment from a
psychological standpoint.
Certain basic principles exist in a reopening of a
workers’ compensation claim.
First, the burden of proof falls
upon the party seeking reopening.
4
Griffith v. Blair, Ky., 430
S.W.2d 337, 339 (1968).
Here, that party is Owens.
Consequently, pursuant to KRS 342.125, it was Owens’ burden to
prove that the effects of the August 13, 1996 accident had
worsened since ALJ Smith’s opinion of August 24, 1999, so as to
cause an increase in vocational disability.
In ascertaining
whether there has been a change, it was the ALJ's obligation to
analyze not only the evidence presented at the time of
reopening, but also the evidence presented previously.
W.E.
Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453, 455
(1946).
Here, the comparison is to Owens’ condition at the time
of the August 1999 decision with his condition at the time of
reopening.
In support of his opinion and award the ALJ made the
following relevant findings of fact and conclusions of law:
The final decision to be made by the
Administrative Law Judge is the issue of
whether the plaintiff has an increase in
occupational disability attributable to his
work related injury as shown by objective
medical evidence. In this case, the
plaintiff complains that his symptoms from
his low back and leg have increased.
However, a review of the medical evidence
does not really show anything more than a
change in the plaintiff’s complaints in
regards to his level of pain from these
physical injuries. Although Dr. Rapier and
Dr. Craig have offered their opinions that
the plaintiff is now totally disabled, I am
more convinced by the opinions of Dr. Primm
and Dr. Wagner that there is no objective
evidence of a physical change. However, I
am firmly convinced that the plaintiff had
5
indeed developed major depression and posttraumatic stress disorder since his opinion
and award in 1999. A review of Dr. Cowell’s
testimony is very convincing that the
symptoms probably began in the summer or
fall of 1999 and manifested their disabling
reality in the episode of February and March
of 2001. In fact, the post-traumatic stress
disorder was undiagnosed until February 14,
2002. As for the plaintiff’s physical
injuries, he was able to return to
employment in the coal mining industry, but
Dr. Cowell has clearly set forth that the
plaintiff’s post-traumatic stress disorder
will not allow him to return to that work
environment. As such, the plaintiff has
shown an increase in his occupational
disability in that his manifested
psychological condition will no longer allow
him to perform work which he was able to
perform at the time of his opinion and
award. The Administrative Law Judge further
finds that there is objective evidence that
the plaintiff has developed this condition.
In Staples, Inc. v. Konvelski, Ky., 56
S.W.3d 412 (2001), the Court noted that
where a psychiatrist recorded events and
observations and rendered a diagnosis and
further testified that he had not performed
standardized testing as such tests were only
used in cases which were absolutely
bewildering, objective evidence existed to
award disability benefits. This is similar
to the testimony of Dr. Cowell who indicated
that he did perform standardized testing on
the plaintiff which revealed depression, but
that he did not need the standardized
testing to know that he was examining a
patient who was dejected, depressed,
demoralized and hopeless. Dr. Cowell went
on to note that through his direct
observations during his treatment of the
plaintiff that he eventually came to realize
that the plaintiff’s anxiousness was due to
post traumatic stress disorder by direct
observation. As such, I find that the
plaintiff’s increase in occupational
6
disability attributable to his onset of
psychiatric symptoms is indeed shown by
objective medical evidence. . . .
Considering the plaintiff’s age, education,
and past work experience along with his
physical and psychological restrictions and
impairment, I am convinced that he has
sustained a 75% occupational disability
under the principles set forth in Osborne v.
Johnson, Ky., 432 S.W.2d 800 (1968) and KRS
342.0011(11). The Administrative Law Judge
further notes that this increase in
occupational disability is a direct result
of his inability to return to the work he
was performing at the time of his injury as
well as at the time of his opinion and award
and is due to his psychiatric state, which
is directly attributable to the injury
sustained in the work related accident of
August 13, 1996.
The fact-finder, the ALJ, rather than the reviewing
court, has the sole discretion to determine the weight,
credibility, quality, character, and substance of evidence and
the inference to be drawn from the evidence.
Paramount Foods,
Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985).
the discretion to choose whom and what to believe.
The ALJ has
Addington
Resources, Inc. v. Perkins, Ky. App., 947 S.W.2d 421, 422
(1997).
The ALJ may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether
it came from the same witness or the same adversary party's
total proof.
Caudill v. Maloney's Discount Stores, Ky., 560
S.W.2d 15, 16 (1977).
7
Although a party may note evidence which would have
supported a conclusion contrary to the ALJ's decision, such
evidence is not an adequate basis for reversal on appeal.
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974).
In
instances where the medical evidence is conflicting, the sole
authority to determine which witness to believe rests with the
ALJ.
Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123, 124 (1977).
Where the party with the burden of proof is successful
before the ALJ, the issue on appeal is whether substantial
evidence supports the ALJ's conclusion.
Special Fund v.
Francis, Ky., 708 S.W.2d 641, 643 (1986).
Substantial evidence
is evidence of substance and relevant consequence, having the
fitness to induce conviction in the minds of reasonable people.
Smyzer v. B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367, 369
(1971).
The relevant provision of the reopening statute, KRS
342.125,1 allows a reopening upon a showing of:
Change of disability as shown by
medical evidence of worsening or
of impairment due to a condition
the injury since the date of the
order.
objective
improvement
caused by
award or
KRS 342.125(1)(d).
1
KRS 342.0015 provides that the procedural provisions of the 1996 changes to
the Workers’ Compensation Act shall apply to all claims irrespective of the
date of injury or last exposure.
8
The findings of the ALJ in connection with whether
there had been a worsening of Owens’ condition as a result of
his August 1996 work-related injury was supported by substantial
evidence.
The evidence presented by Dr. Cowell squarely
addressed this issue.
Dr. Cowell diagnosed Owens with major
depressive disorder, single episode in partial remission, as
well as post-traumatic stress disorder.
Dr. Cowell’s testimony
further reflects that, sequentially, Owens’ psychological
problems did not become a disabling reality until February or
March 2001, and that the condition was not diagnosed until
February 14, 2002 – all subsequent to the original August, 1999
opinion and award.
Dr. Cowell further attributed Owens’
psychological condition to the original injuries he incurred in
August, 1996.
The medical records and testimony of Dr. Cowell
comprise substantial evidence supporting the decision of the ALJ
that there has been a worsening of Owens’ condition since the
original award as a result of his work-related injury.
In the alternative, Sidney Coal argues that the ALJ’s
decision was erroneous because none of the medical witnesses,
including Dr. Cowell, quantified Owens’ psychological diagnoses
as a percentage of impairment pursuant to the AMA Guidelines.
Sidney Coal argues that without an impairment rating for the
9
psychological condition under the AMA Guidelines, there could be
no award.
In a reopening case, the substantive rights and
obligations of the parties are governed by the law in effect on
the date of the injury.
Woodland Hills Mining, Inc. v. McCoy,
Ky., 105 S.W.3d 446, 448 (2003).
The version of KRS
342.730(1)(c) in effect on the date of Owens’ injury provided as
follows:
For permanent partial disability, except all
cases described in subsection (1)(b), sixtysix and two-thirds percent (66-2/3%) of the
employee's average weekly wage but not more
than seventy-five percent (75%) of the state
average weekly wage as determined by his
percentage of disability caused by the
injury or occupational disease as determined
by the “Guides to the Evaluation of
Permanent Impairment,” American Medical
Association, latest edition available, or
under KRS 342.0011(11), whichever is
greater. . . . (Emphasis added).
As noted by the emphasized portion of the statute, the
version of KRS 342.730(1)(c) in effect on the date of the
original injury expressly provided for an alternative
calculation of income benefits under KRS 342.0011(11).
In turn,
the version of KRS 342.0011(11) on the date of the original
injury provided as follows:
“Disability” means a decrease of wage
earning capacity due to injury or loss of
ability to compete to obtain the kind of
work the employee is customarily able to do,
in the area where he lives, taking into
10
consideration his age, occupation,
education, effect upon employee’s general
health in continuing in the kind of work he
is customarily able to do, and impairment or
disfigurement.
Clearly, in combination, the relevant versions of KRS
342.730(1)(c) and KRS 342.0011(11) provided a means for an
awarding of workers’ compensation benefits without the
assignment of an AMA disability rating under the guidelines.
In
fact, KRS 342.730(1)(c) specifically provided that the award
should be based upon whichever calculation produced the greater
result, and so Sidney Coal could not have been prejudiced by the
failure of the medical witnesses to assign an AMA Guidelines
disability rating to Owens.
In addition, we adopt the Board’s
discussion regarding this issue:
The record contains substantial evidence
upon which the ALJ could conclude Owens had
a decrease of wage earning capacity due to
the injury. As noted by Dr. Cowell, Owens
could not return to jobs in the mining
industry. Owens’ testimony indicated he
earned a much higher wage in the mining
industry than he earned in his employment
with the Fiscal Court. As noted in KRS
342.0011(11) as set out above, a decrease of
wage earning capacity due to an injury is
one of the definitions of disability. The
other portion of the definition of
disability is a loss of ability to compete
to obtain the kind of work the employee is
customarily able to do, in the area where he
lives, taking into consideration his age,
occupation, education, effect upon
employee’s general health of continuing in
the kind of work he is customarily able to
do, and impairment or disfigurement. Mining
11
work was the type of work Owens was
customarily able to do. Clearly, Dr.
Cowell’s testimony indicates there would be
a negative effect upon Owens’ general health
if he continued in that kind of work.
Contrary to Sidney’s assertion, the
definition in KRS 342.0011(11) does not
require a showing of an impairment rating,
but rather it allows for impairment or
disfigurement as a consideration in
determining if there is a disability.
The facts in the present claim are
strikingly similar to those in Woodland
Hills Mining, Inc. v. McCoy[,Ky., 105 S.W.3d
446 (2003)]. In that case, the Supreme
Court applied the pre-December 12, 1996
substantive proof requirement of KRS
342.730, and upheld a finding of an increase
in occupational disability to a total
disability even though the claimant only
produced evidence of increased levels of
pain and depression and produced no evidence
of increased impairment ratings.
Finally, we believe the record would
actually support a finding that Owens had an
impairment rating from the psychological
condition. While Dr. Grancher indicated
that he did not believe Owens had any
percentage of impairment as a result of the
work injury, he did indicate that Owens was
entitled to an impairment rating of about
10% due to residual depressive symptoms.
Dr. Cowell believed Owens continued to have
depressive symptoms as well. The ALJ, had
he felt it necessary, could certainly have
accepted Dr. Granacher’s opinion regarding
impairment rating and rejected Dr.
Granacher’s opinion as to causation.
Caudill v. Maloney’s Discount Store[, Ky.,
560 S.W.2d 15 (1977)].
The function of this Court in reviewing the Board “is
to correct the Board only where the . . . Court perceives the
12
Board has overlooked or misconstrued controlling statutes 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).
This did not
occur in the present case.
For the foregoing reasons the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
A. Stuart Bennett
Jackson Kelly PLLC
Lexington, Kentucky
BRIEF FOR APPELLEE PAUL DAVID
OWENS:
Randy G. Clark
Clark & Johnson
Pikeville, Kentucky
BRIEF FOR APPELLEE WORKERS’
COMPENSATION FUNDS:
David W. Barr
Frankfort, Kentucky
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