JERRY WELLS v. HAZARD APPALACHIAN REGIONAL HOSPITAL; HON. MARCEL SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION FUNDS, SUCCESSOR TO SPECIAL FUND; AND WORKERS' COMPENSATION BOARD
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RENDERED: AUGUST 5, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002367-WC
JERRY WELLS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-98-67464
v.
HAZARD APPALACHIAN REGIONAL HOSPITAL;
HON. MARCEL SMITH, ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION FUNDS, SUCCESSOR
TO SPECIAL FUND; AND WORKERS' COMPENSATION
BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HENRY, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Jerry Wells appeals from the decision of the
Workers Compensation Board affirming the denial of his claim for
reopening due to a worsening of a work-related injury.
The
Administrative Law Judge (ALJ) held that Wells had not
demonstrated by comparative evidence that his condition had
actually worsened.
Wells appeals, arguing that the ALJ's
conclusion was unreasonable in light of the evidence.
disagree, and affirm.
We
Wells injured his back three times while working for
appellee Hazard Appalachian Regional Hospital (ARH), once in
August 1997 and twice in August 1998, the last of which required
medical treatment which caused him to be off work until February
1999.
Wells filed a claim in which he was ultimately found to
have a 15% permanent impairment rating, which translated to an
18.75% permanent disability rating.
The initial award was
increased by a 1.5 multiplier based on his inability to return
to the same type of work, but reduced by a .5 multiplier based
on his return to work at modified duty earning equal or greater
than his pre-injury wage.
Wells first requested a reopening in December 2001,
alleging a worsening of his condition.
The claim was assigned
to an ALJ for further adjudication in January 2002.
Based on
the medical records and reports submitted, the ALJ found no
evidence of a greater level of occupational disability.
The
Board affirmed this decision, and a second motion to reopen was
filed in December 2003.
The matter was again assigned to an ALJ
for further proceedings, and again the ALJ found that there was
no evidence of a worsening.
The Board affirmed that decision,
holding that it could not substitute its judgment for that of
the ALJ in weighing the evidence, and that Wells had not shown
that the evidence was so overwhelming that it compelled a
contrary result.
Wells presents the same argument to this Court
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as he did to the Board, namely that the ALJ was obligated to
award increased benefits in light of the uncontradicted
testimony of Drs. Templin and Chaney.
We disagree that the
evidence compels the result urged by Wells.
On a reopening, the burden of proof and the risk of
non-persuasion falls on the party seeking reopening.
Stambaugh
v. Cedar Creek Mining Co., 488 S.W.2d 681 (Ky. 1972), Griffith
v. Blair, 430 S.W.2d 337 (Ky. 1968).
Where the decision of the
fact-finder is adverse to the party with the burden of proof,
that party bears the additional burden on appeal of showing that
the evidence compelled a contrary result.
Co., 968 S.W.2d 675 (Ky. App. 1998).
Mosely v. Ford Motor
A reviewing court may not
substitute its judgment for that of the finder of fact as to the
weight of the evidence.
The ALJ has the sole authority to
determine the quality, character and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
The fact
finder may reject any testimony and believe or disbelieve
various parts of the evidence, regardless of whether it comes
from the same witness or the same adversary party's total proof.
Magic Coal v. Fox, 19 S.W.3d 88 (Ky. 2000).
The ALJ is even
permitted to reject uncontroverted evidence, as long as a
reasonable basis for doing so is stated.
816 S.W.2d 643 (Ky. 1991).
-3-
Osborne v. Pepsi-Cola,
The essence of the Board's holding is that while two
doctors assigned a numerically higher impairment rating, 17%, to
Wells in 2003 assessments, the process is not so mechanical that
the ALJ must therefore award additional benefits.
The rejection
of Wells' claim was based on a lack of comparative evidence
which details how the condition worsened.
After a review of the
evidence, we agree with the Board's conclusion that the ALJ, who
clearly stated her reasons for rejecting the contention that the
2% increase documented in the reports of Templin and Chaney
represented a true worsening of his condition demonstrated by
objective medical evidence.
We adopt the following portion of
the Board's opinion as our summary of the reasons that the
evidence does not compel a contrary result:
Dr. Templin did not see Wells prior to the
original award issued in June 2000. Moreover, Dr.
Templin did not address the issue of permanent
impairment in his original evaluation of Wells in
2001. His 2003 report, produced in conjunction with
the current reopening, provides no expert opinion with
respect to a worsening of Wells’ condition from the
date of the original award. While the 17% rating
assessed by Dr. Templin is numerically higher than the
15% rating found in the original claim, there is
nothing within the report of Dr. Templin to suggest
that this difference represents a true worsening of
Wells’ condition, as opposed to a change in the AMA
Guides between the 4th and 5th editions or variability
in the methods of assessment utilized by the
examiners. It is noted that 3% of the rating assessed
by Dr. Templin was based on Chapter 18 of the 5th
Edition, which addresses pain-related impairment, a
value not available to examiners under the 4th Edition.
Of course, it was the 4th Edition of the AMA Guides
used by Dr. Chaney to assess the 15% impairment rating
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upon which benefits were awarded in Wells’ original
claim.
Looking beyond the numbers to the substance
of Dr. Templin’s report, it may be seen that his
physical findings from one examination to the next are
virtually identical. Indeed, it would be easy enough
to conclude that Dr. Templin simply plugged in
different values for the results of strength and range
of motion testing. Notably, range of motion testing
in 2003 revealed improvement over Wells’ range of
motion in 2001. Strength testing revealed no change in
the average on the left and a modest decrease in
strength on the right. Overall, it may not be said
that the objective medical evidence reflected in Dr.
Templin’s reports of 2001 and 2003 compel a finding
that Wells’ condition worsened during that interval.
We have acknowledged, however, that Dr.
Templin’s first report came after the original award,
and it was Wells’ position in his previous claim on
reopening that his condition had in fact worsened in
the interval between the 2000 award and Dr. Templin’s
2001 evaluation. Thus, we turn to the records of Dr.
Chaney, who has treated Wells since 1998. Unlike Dr.
Templin, Dr. Chaney did in fact address the issue of
permanent impairment during both the original
litigation and on reopening. Moreover, the rating
offered by Dr. Chaney in 2004 was 2% higher than the
rating assessed by him in 1999.
As Hazard ARH has pointed out in its
briefing, however, the impairment rating espoused by
Dr. Chaney in 2004 appears to be simply a carbon copy
of the report of Dr. Templin. One might reasonably
conjecture that the 17% rating is not the product of
an independent comparative analysis by Dr. Chaney at
all. On the other hand, it is not necessarily
inappropriate for Dr. Chaney to adopt the rating
assessed by Dr. Templin, if he believes it to be an
accurate appraisal under the AMA Guides. However,
without some further explanation or elaboration on the
difference between his opinion in 1999 and 2004, we
cannot conclude that Dr. Chaney’s report compels the
outcome urged by Wells.
In both 1999 and 2004, Dr. Chaney assessed a
5% rating under category II of the [Diagnosis Related
Estimate (DRE)] Model for Wells’ lumbar spine
impairment. In 1999, he added to this a 10% rating
for personal neuropathy in the right lower extremity,
-5-
to arrive at a 15% permanent impairment rating. In
2004, Dr. Chaney, like Dr. Templin, added to the 5%
lumbar spine impairment an additional 9% for gait
disorder and 3% for pain. Dr. Chaney offered no
explanation as to why he utilized a different method
of assessment of impairment for the lower extremity.
We note, however, that the AMA Guides direct the
examiner to evaluate impairment in an extremity caused
by [Reflex Sympathetic Dystrophy (RSD)] according to
the method described in Chapter 13, from which the 9%
rating for gait disorder was derived. Thus, one might
reasonably infer that Dr. Chaney, like Dr. Templin,
believed it appropriate to rate Wells’ lower extremity
impairment under that chapter of the AMA Guides in
light of the RSD diagnosis that had been made
subsequent to his 1999 report. However, a review of
Dr. Chaney’s records just prior to issuance of the
original award reveals that he suspected RSD in early
2000, being at a loss to explain otherwise Wells’
right lower extremity symptoms. In other words, the
fact that Dr. Chaney had not definitively diagnosed
RSD at the time of the original award does not mean
the criteria for impairment resulting from that
condition were not present.
Notably, in his office record dated February
7, 2000, Dr. Chaney observed, “He walks with an
antalgic gait and drags his right leg” Straight leg
raising on the right was positive at 30 degrees.
Wells reported that his right leg felt cold at times
and that he experienced numbness, tingling and pain in
the extremity continuously. He continued to complain
of back pain and tenderness over the lower lumbar
spine. These are the same findings upon which the 17%
rating was assessed by Dr. Chaney and Dr. Templin in
the reopening now before us.
In his brief before this Board, Wells
suggests that the evidence of a 17% impairment rating
alone was sufficient to compel an increase in the
award of permanent income benefits. While we
acknowledge the integral role of AMA impairment
ratings in permanent partial disability claims after
1996, we do not believe the matter is so mechanical as
Wells suggests. That is, the ALJ nevertheless retains
the discretion to weigh the evidence and judge the
credibility of the witnesses. In the case sub judice
the ALJ clearly stated the basis for her rejection of
the higher impairment rating that had been assessed.
-6-
In looking at the record as a whole, the ALJ was not
persuaded the 2% increase represented a worsening of
Wells’ condition that had been shown by objective
medical evidence. Because this conclusion is based
upon substantial evidence in the record and reflects
an accurate application of the reopening provisions of
KRS 342.125(1), it may not be disturbed on appeal.
Special Fund v. Francis, supra.
Accordingly, the decision of the Workers' Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Phyllis L. Robinson
Manchester, Kentucky
BRIEF FOR APPELLEE, HAZARD
APPALACHIAN REGIONAL HOSPITAL:
Mark P. Niemi
Lexington, Kentucky
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