EGS BRANCH MINING v. FLOYD COLEMAN ; DONALD G . SMITH, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD and FLOYD COLEMAN v. PEGS BRANCH MINING ; DONALD G . SMITH ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINIONIS DESIGNA TED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PROCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYINANY OTHER
CASE IN ANY COURT OF THIS STATE.
RENDERED : JANUARY 23, 2003
NOT TO BE PUBLISHED
APPEAL FROM COURT OF APPEALS
2001-CA-1579-WC
WORKERS' COMPENSATION BOARD NO. 98-61013
FLOYD COLEMAN ; DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
and
APPELLEES
2002-SC-0189-WC
FLOYD COLEMAN
CROSS-APPELLANT
APPEAL FROM COURT OF APPEALS
2001-CA-1579-WC
WORKERS' COMPENSATION BOARD NO. 98-61013
PEGS BRANCH MINING ; DONALD G . SMITH
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
CROSS-APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Workers' Compensation Board (Board) and the Court of Appeals have
affirmed a finding that the claimant lacked the physical capacity to return to the work
that he performed when injured. They have also rejected an argument that by basing
permanent partial disability awards upon American Medical Association (AMA)
impairment ratings, KRS 342 .730(1)(b) amounts to an unconstitutional delegation of
legislative power to the organization . Ky. Const. §§ 29 and 60. We affirm.
On October 15, 1998, the claimant was thrown from a shuttle car and injured his
back . He continued to work for the next two days, missed the following five days due to
his injury, and returned to work until the mine shut down on December 19, 1998. As
noted by the Board, the medical evidence in the claim was extensive and conflicting .
After reviewing the evidence, the Administrative Law Judge (ALJ) chose to rely upon
the opinions and impairment ratings offered by Drs. Templin and Weitzel and,
therefore, calculated a combined physical and psychiatric impairment rating of 20%.
Furthermore, the ALJ determined that the claimant lacked the physical capacity to
return to the type of work performed at the time of the injury, enhanced the resulting
award by a factor of 1 .5, and refused to exclude any portion of the award as being due
to the effects of the natural aging process.
KRS 342.730(1)(c)1 provides that upon a finding that an injured worker lacks the
physical capacity to return to the type of work that was performed at the time of the
injury, the worker's benefit for permanent, partial disability shall be enhanced by a factor
of 1 .5 . The claimant bears the burden of proving every element of a workers'
compensation claim . Tackett v. Sizemore Mining o. , Ky., 560 S .W.2d 17 (1977) .
C
Thus, he was required to prove that he lacked the physical capacity to return to coal
mining. KRS 342 .285 vests the ALJ with the sole discretion to weigh conflicting
evidence, to determine the credibility of witnesses, and to choose the evidence upon
which to rely. For that reason, where the party with the burden of proof prevails before
the ALJ with respect to a question of fact, the finding may not be disturbed on appeal
unless it is unreasonable. Special Fund v. Francis , Ky., 708 S.W.2d 641, 643 (1986) .
After reviewing the conflicting evidence in this case, the AU determined that the
claimant lacked the physical capacity to return to coal mining and enhanced his income
benefit under KRS 342 .730(1)(c)1 .
Appealing, the employer continues to maintain that the claimant was not entitled
to the enhancement . It points out that he returned to the same job after a five-day .
absence and continued to work for nearly two months until he was laid off. He later
applied for and drew unemployment benefits, holding himself out as being ready,
willing, and able to work. Furthermore, the employer maintains, he testified that he
would have taken a job as a coal miner if he had been offered one.
Although Drs. Primm and Sheridan were not persuaded that the claimant
suffered a significant back injury, Dr. Templin diagnosed a chronic low back pain
syndrome and lumbar disc bulge at L5-S1, with right leg radiculopathy. He noted some
pre-existing, age-related degenerative changes, but he was of the opinion that the disc
bulge and the claimant's present condition were due to the work-related injury. He
assigned a 10% AMA impairment, half of which he attributed to the arousal of a preexisting, dormant, nondisabling condition . Furthermore, he restricted the claimant from
extensive riding in or on vibratory vehicles and from frequent bending, stooping,
kneeling, crouching, crawling, carrying, or climbing . In his opinion, the claimant did not
retain the physical capacity to return to the type of work that he performed at the time of
his injury .
Dr. Shraberg determined that the claimant suffered from mild, chronic
depression that was not work-related and that he had no permanent, work-related
psychiatric impairment . Whereas, Dr. Weitzel diagnosed anxiety and depressive
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disorder that accounted for a 10% AMA impairment . In his opinion, the impairment was
due to the arousal of a pre-existing, dormant, non-disabling condition by the workrelated back injury . Furthermore, he indicated that when the impairment was
considered together with the claimant's physical impairment and pain, it would probably
prevent him from returning to his usual occupation.
A worker's testimony that he is unable to perform various activities is competent
evidence that he is unable to do so. See Hush v. Abrams , Ky., 584 S.W.2d 48 (1979) .
Nonetheless, in the face of contrary medical evidence, his testimony alone will not
compel a finding in his favor. Likewise, in the face of contrary medical evidence, a
worker's willingness to return to his previous employment and his return to work for a
relatively short period of time will not necessarily compel a finding that he is physically
capable of continuing to do so indefinitely .
The claimant did return to work for approximately two months but also testified
that he thought he could no longer engage in coal mining . Furthermore, he indicated
that he had sought work in the mines after being laid off because he needed the
money . As noted by the Court of Appeals, the evidence showed that "the reality of the
situation was not that the claimant could or should have returned to work, but rather
that he did so only out of necessity ." When the claimant's testimony and actions are
considered in light of the testimony from Drs . Templin and Weitzel, the ALJ's finding
was not unreasonable. Under those circumstances, it was properly affirmed by the
Board and the Court of Appeals. Special Fund v. Francis , Ky., 708 S.W.2d 641, 643
(1986).
Cross-appealing, the claimant maintains that by mandating use of the most
recent edition of the AMA Guides to the Evaluation of Permanent Impairment (Guides )
when determining a worker's income benefit, KRS 342.730(1)(b) improperly delegates
legislative power to the AMA. Ky. Const. §§ 29 and 60 . As we pointed out in Adkins v.
R & S Body. Co. , Ky., 58 S.W.3d 428 (2001), KRS 342.730(1)(b) and (c) operate
together . A worker's AMA impairment is but one of three factors that are considered
when calculating a partial disability award. The statutory multiplier weights the formula
to favor individuals who are more severely impaired and, therefore, are more likely to
have difficulty finding work after being injured. Furthermore, the formula takes into
account the worker's post-injury income and physical capacity to return to the same
type of work. Although the formula may imperfectly measure a particular worker's loss,
it continues to base a partial disability award on the extent of the worker's occupational
disability . We concluded, therefore, that it bore a rational relationship to the purpose of
the income benefit and was not arbitrary .
As the claimant points out, the Guides are revised periodically by groups of wellqualified experts who are nominated by state medical societies and medical specialty
societies . Thus, the impairment rating for a particular condition may change, causing a
change in the resulting partial disability award . The fact remains, however, that
requiring use of the most recent edition of the Guides assures that a uniform standard
of assessing impairment is used in all claims that are being considered at a given point
in time and that the standard is consistent with current medical thinking. It also assures
that each physician who testifies in a particular claim uses the same standard for
measuring the worker's impairment . Nothing in Chapter 342 deprives an AU of the
authority to weigh conflicting evidence and to choose among the AMA impairments that
are in evidence when deciding a particular worker's impairment . Likewise, nothing
interferes with the ALJ's discretion to determine whether a worker lacks the physical
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capacity to return to the type of work that was performed at the time of the injury . As
aptly stated by the Court of Appeals, "[T]he ultimate authority to determine the
existence, extent, and duration of the claimant's disability remains vested in the ALJ ."
We conclude, therefore, that KRS 342.730's limited reliance on the AMA Guides does
not delegate legislative power to the AMA or otherwise violate Ky. Const. §§ 29 and 60 .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
A. Stuart Bennett
175 E. Main Street
P .O. Box 2150
Lexington, KY 40588
COUNSEL FOR APPELLEE:
Robert J . Greene
Kelsey E . Friend Law Firm
2nd floor, Pauley Building
P .O. Box 512
Pikeville, KY 41502
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