RANDALL STUMP v. MOUNTAIN EDGE MINING, INC., HON. MARCEL SMITH, ADMINISTRATIVE LAW JUDGE, and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: JULY 21, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-002393-WC
RANDALL STUMP
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-89345
.
MOUNTAIN EDGE MINING, INC.,
HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE, and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
Randall Stump appeals from an opinion
of the Workers’ Compensation Board affirming a decision rendered
by an Administrative Law Judge denying future knee replacement
surgery and an increase in income benefits against Mountain Edge
Mining, Inc.
Finding no error, we affirm.
On May 9, 2000, Stump suffered a work related injury
to his left knee.
1
He continued to work until April 19, 2001, at
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
which time he had knee surgery and missed one work shift.
When
he returned to work he was assigned to light duty but eventually
returned to his position as a maintenance foreman for Mountain
Edge.
On April 27, 2002, Stump left his employment with
Mountain Edge because his knee had allegedly deteriorated and he
could no longer perform his work duties.
Stump settled his workers’ compensation claim based on
a 3% impairment rating for a lump sum payment of $2,290.37 and
reserved his right to receive future medical treatment for his
work related condition.
The agreement was approved by the ALJ
on May 15, 2002.
In July 2004, Stump filed a motion to reopen pursuant
to KRS 342.125 alleging a worsening of his physical condition
and an increase in occupational disability.
The claim was
subsequently assigned to an ALJ for further adjudication.
Stump testified that his knee condition had grown
progressively worse stating that it “catches” and “locks up”,
and he now experiences lower back pain.
Since 2002, Stump has
gained approximately 55 pounds and now weighs 315 pounds.
Dr. Nadar, Stump’s treating orthopedic surgeon, first
treated Stump for his work-related injury on November 13, 2000.
He originally diagnosed a sprained medial collateral ligament in
the left knee.
After Stump continued to have difficulty, he
performed an arthroscopy and partial medial meniscectomy of the
-2-
left knee on April 19, 2001, and released Stump to return to
full duty on July 9, 2001.
3% impairment rating.
22, 2003.
In August 2001, Dr. Nadar assessed a
He did not see Stump again until April
Stump complained of increased problems with
persistent pain, popping, and catching of the knee.
Dr. Nadar
continued to treat Stump with analgesics and anti-inflammatory
medication.
Dr. Nadar testified that within a reasonable degree
of medical probability, since August 2001, Stump’s condition has
progressed and worsened and that he now has at least a ten
percent impairment to the body as a whole.
Fifty percent of
that impairment, he opined, is due to pre-existing conditions
and the remainder to the 2000 injury.
included Synvisc injections.
His treatment plan
If that treatment did not have
positive results, however, Dr. Nadar recommended knee
replacement surgery.
Although he found Stump’s condition had
worsened, Dr. Nadar did not place additional restrictions on
Stump’s activities.
Dr. Wagner performed an independent medical evaluation
on October 28, 2004.
He found Stump to have a 1% impairment to
the body as a whole which he attributed to pre-existing
degenerative changes to the knee.
As treatment, he did not
believe knee replacement was necessary and recommended antiinflammatory medication and a dramatic weight reduction.
-3-
Dr. Lowe, an orthopedic surgeon, performed an
independent medical examination on October 8, 2004.
He
testified that Stump’s impairment now exceeded 3% to the body as
a whole.
Because of his objective findings and with Stump’s
reliance on a cane, he would rate his impairment as high as 20%.
Even without factoring in Stump’s use of the cane, which Dr.
Lowe admitted could be exaggerated by the patient, he would
still assess a 13% impairment.
As the first option of treatment
he recommended Synvisc injections to the left knee and, if
unsuccessful in relieving Stump’s symptoms, knee replacement
surgery.
He further stated that Stump no longer had the
physical capacity to return to work.
The ALJ relied on Dr. Wagner’s opinion and found that
Stump failed to demonstrate that he suffered a worsening of his
condition or increase in his disability.
benefits were denied.
Additional income
As to medical benefits sought for knee
replacement surgery, the ALJ again relied on Dr. Wagner and the
request was denied.
The ALJ did approve the benefits payable
for anti-inflammatory medication finding Dr. Lowe’s and Dr.
Nadar’s testimony persuasive.
It is not the function of the Board or of this
appellate court to replace our judgment with that of the ALJ.
As the fact-finder, the ALJ can reject testimony and believe or
-4-
disbelieve any part of the evidence.2
Simply because there is
evidence to support a finding in the appellant’s favor, the
decision will not be reversed unless there is no substantial
evidence of probative value to support the decision.3
Although Stump submitted evidence to support his claim
and it would not have been unreasonable for the ALJ to render an
award in his favor, the evidence did not compel such a result.4
We agree with the following analysis provided by the Board:
In this instance, we find that the ALJ’s
determination on reopening was supported by
sufficient evidence of probative value. In
order to have been successful, Stump was
charged with proving to the ALJ’s
satisfaction as fact-finder that he had
suffered a “[c]hange of disability as shown
by objective medical evidence of worsening
or improvement of impairment due to a
condition caused by the injury since the
date of the award or order.” See KRS
342.125(1)(d). Stump failed in that burden.
Instead, the ALJ was more persuaded by the
expert opinions expressed by Dr. Wagner. In
2001, at the time of the original settlement
Dr. Nadar assessed a 3% whole body
impairment pursuant to the AMA Guides.
Hence, it was reasonable for the ALJ to
conclude there has been no worsening of
impairment. It does not matter that Drs.
Lowe and Nadar expressed contrary opinions
that Stump’s impairment rating had increased
or worsened over the past four years.
2
Magic Coal v. Fox, 19 S.W.3d 88 (Ky. 2000).
3
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
4
Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984).
-5-
As to Stump’s claim for medical benefits for knee
replacement surgery, the ALJ relied on the testimony of Drs.
Wagner that Stump could be treated with anti-inflammatory
medications.
Even the testimony of Drs. Nadar and Lowe does not
establish that the surgery is presently necessary or, without
reduction in Stump’s weight, that this is even a reasonable
treatment.
The evidence is more than sufficient to establish
that the knee surgery is not necessary or reasonable.5
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Glenn M. Hammond
Glenn M. Hammond Law Office
Pikeville, Kentucky
Jeffery D.Damron
Baird & Baird, P.S.C.
Pikeville, Kentucky
5
KRS 342.020.
-6-
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.
