LYNN H . SMITH V MATE CREEK DEVELOPMENT ; WORKERS' COMPENSATION BOARD ; HON . ROBERT WHITAKER, DIRECTOR OF WORKERS' COMPENSATION FUNDS, SUCCESSOR TO SPECIAL FUND AND HON . RONALD W . MAY, ADMINISTRATIVE LAW JUDGE
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVIL PR OCED 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IS NOT TO BE PUBLISHED AND SHALL NOT BE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 UTHORITY INANY OTHER
CASE INANY CO URT OF THIS STATE.
RENDERED : JUNE 12, 2003
NOT TO BE PUBMHED
2002-SC-0529-WC
LYNN H. SMITH
APPEAL FROM COURT OF APPEALS
NO. 2002-CA-0149
WORKERS' COMPENSATION BOARD NO. 96-08318
V
MATE CREEK DEVELOPMENT ;
WORKERS' COMPENSATION BOARD ;
HON. ROBERT WHITAKER, DIRECTOR
OF WORKERS' COMPENSATION
FUNDS, SUCCESSOR TO SPECIAL
FUND AND HON. RONALD W . MAY,
ADMINISTRATIVE LAW JUDGE
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from an opinion of the Court of Appeals reversing that part of a
decision of the Workers' Compensation Board which reversed and remanded an
opinion and order of the Administrative Law Judge dismissing the claim by Smith on
reopening .
Smith was injured on December 8, 1993 when a rib of coal rolled over him while
he was working for Mate Creek Development in an underground coal mine. He has not
returned to work since this accident . In August 1994, the ALJ approved Smith's
settlement with Mate Creek for a lump sum of $15,000, representing a 13.95%
occupational disability . The settlement agreement described the injury as "acute pain in
the lumbar area, radiating to the right leg ." The word "psychological" was handwritten
just above this description and was initialed only by Smith. In May 1995, Smith filed a
form 101 alleging injuries to his back, neck and head with resulting physical and
psychological disability. Approximately six months later, he settled his claim with the
Workers' Compensation Funds, successor to Special Fund, for a lump sum of $13,800,
representing a 15.9% occupational disability.
In December 2000, Smith filed a motion to reopen alleging a worsening of
condition from a physical and psychological standpoint . The contested issues were
whether the December 1993 injury had worsened to cause an increase in vocational
disability since the settlement agreements and "limitations as to psych claim ." After
reviewing all the submitted medical evidence, the ALJ dismissed the motion by Smith to
reopen the back injury claim . The ALJ found that the submitted medical evidence was
not so compelling as to require the reopening of this matter. The Board upheld the
dismissal of the AU on this ground and neither party appealed that decision .
Consequently, the claim involving the back injury is not before this Court .
As to his cervical condition, Smith testified that he started having headaches
within a couple of months of his injury and that his neck problems began approximately
one year later. He thought that his headaches could be related to the neck condition .
Smith claimed that his neck pain had increased since 1996 and his headaches have
been more frequent . He testified that he complained to his doctors about the neck pain
as early as 1996, but that the doctors continued to only treat his lower back pain .
Smith submitted the report of Dr. Templin, who diagnosed chronic cervical pain
syndrome and degenerative cervical disc disease . He assessed a 15% or 33%
impairment, but did not render an opinion as to whether the condition had worsened
since the settlements .
Mate Creek offered the report of Dr. Travis, who concluded that Smith's cervical
complaint had not progressed since the x-rays taken in 1993. He assessed a 5%
permanent partial impairment rating related to the neck. The Workers' Compensation
Funds submitted the report of Dr. Patrick, who found Smith to have full range of motion
of the neck. He stated that despite x-ray evidence of degenerative disc disease at C5C6 and C6-C7, Smith had normal findings about the cervical spine and no measurable
functional impairment .
With respect to his psychological condition, Smith testified that he had such a
condition during 1994 and 1995 . In the original claim, Dr. Vyas assigned a 45%
permanent partial disability, with 5% attributed to "mental anguish ." Although the report
did not define "mental anguish", Smith indicated that it related to anxiety and
depression from the work-related injury. Smith further testified that he now feels
useless and irritable, but acknowledged that he has never sought treatment for this
condition .
On reopening, Smith offered the uncontradicted report of Dr. Cooke, who
diagnosed adjustment disorder with depressed mood . He noted that Smith felt
depressed over certain family matters . Dr. Cooke assigned a 15% permanent partial
disability rating, with 12% attributed to the 1993 work injury . He did not state whether
this was a change in condition from the time of the settlements .
Ultimately, the ALJ dismissed the neck and psychological claims of Smith,
stating:
The ALJ is not persuaded that the work related injury of
December 8, 1993 produced any neck injury nor any
psychological condition as is evidenced by the lack of any
medical documentation of any significant injury in those
areas. The regulations at the time of the filing of plaintiffs
application required the filing of medical reports with the
3
application documenting the existence of the alleged
injuries. Plaintiff did not document the allegation of neck
and psychological disability when he filed his application and
his attempt to do so at this late date which is eight years
after the accident comes far too late.
The Board reversed and remanded the decision of the AU dismissing the neck
and psychological claims, stating :
Since Smith's 1995 application for benefits specifically
included the neck and psychological claims and the 1994
and 1995 settlements also refer to the psychological injury,
we believe the AU erred in concluding Smith's neck and
psychological claims are barred by the statute of limitations .
Thus, Smith's neck and psychological claims are viable for
consideration upon reopening, even though our view of the
evidence lends itself to little, if any, factual basis for
increased benefits on reopening.
The Court of Appeals disagreed with the Board's interpretation of the ALJ's
opinion, and relying on Slone v. Jason Coal Company, Ky., 902 S .W .2d 820 (1995), it
reversed the Board on the issue concerning the neck and psychological claim . This
appeal followed .
Smith argues that the Court of Appeals erred in relying on Slone , supra, to
prohibit his neck and psychological claims . He also contends that the Court of Appeals
erred in finding that the ALJ did not rule on this matter as a violation of the statute of
limitations .
Mate Creek responds that the Court of Appeals properly held that the ALJ
overruled the motion by Smith to reopen for failure to prove that the neck and
psychological conditions were caused by the 1993 injury . It argues that the evidence
does not compel a finding that the neck and psychological conditions are the result of
the 1993 injury . Mate Creek asserts that the Court of Appeals appropriately relied on
Slone .
The Workers' Compensation Funds contends that Smith failed in sustaining his
burden of proving a worsening of his condition .
After careful review of the record, we must conclude that the evidence in the
record does not compel this Court to reach a different result from that made by the ALJ .
As the party moving for reopening, Smith had the burden of proving that his
occupational disability had increased and that said increase was related to the incident
for which compensation was sought. Peabody Coal Co. v. Gossett , Ky., 819 S.W2d 33
(1991). When the party that bears the burden of proof is unsuccessful before the ALJ,
the question on appeal is whether the evidence compels a different result . Wolf Creek
Collieries v. Crum , Ky.App ., 673 S.W .2d 735 (1984) . Compelling evidence is defined
as evidence so overwhelming that no reasonable person could reach the same
conclusion as the ALJ . REO Mechanical v. Barnes , Ky.App ., 691 S.W.2d 224 (1985).
It is not enough for Smith to show that there is evidence, no matter how
persuasive, that would support a contrary conclusion . McCloud v. Beth-Elkhorn Corp. ,
Ky., 514 S .W .2d 46 (1974). If any evidence of substance supports the opinion of the
ALJ, it cannot be said that the evidence compels a different result . Special Fund v.
Francis , Ky., 708 S .W.2d 641 (1986). As fact finder, the ALJ has the sole authority to
determine the weight, credibility, substance, and inference to be drawn from the
evidence . Paramount Foods, Inc . v. Burkhardt , Ky., 695 S .W .2d 418 (1985). The AU
has the discretion to choose whom and what to believe . Pruitt v. Bugg Bros. , Ky., 547
S .W .2d 123 (1977).
Here, Smith did not present compelling evidence that his alleged neck or
psychological problems have worsened since the settlements . Dr. Travis found no
objective basis to support the claim by Smith that his condition had worsened . Dr.
Patrick opined that Smith had normal findings about the cervical spine and no
measurable functional impairment . Even Dr. Templin provided no opinion as to
whether Smith's condition had changed since the initial settlements .
For his psychological claim, Smith relied on the report of Dr. Cooke. Although
Dr. Cooke did assess a 15% psychological impairment, he also cited many non-work
related factors which contributed to this impairment . More important, like Drs. Travis,
Patrick, and Templin, he provided no evidence that this was a change from Smith's
condition in 1995 .
It is abundantly clear that the evidence in this record simply does not compel a
different result, and the Court of Appeals was correct in concluding that a remand for
additional findings was unnecessary . Special Fund v. Francis , Ky., 708 S.W.2d 641
(1986). We find it unnecessary to delve into a lengthy analysis of whether Slone is
controlling in this situation or to interpret the language employed by the ALJ . The
simple fact remains that the evidence in this record does not compel a different result .
Therefore, the decision of the Court of Appeals is affirmed .
All concur except Graves, J ., who dissents because the decision of the Board
was correct.
COUNSEL FOR APPELLANT :
Dennis James Keenan
HINKLE, KEENAN & CHILDERS PSC
79 Mall Road, Ste .C.
South Williamson, KY 41503
COUNSEL FOR APPELLEE :
Bonnie Jo Hoskins
Carl M . Brashear
HOSKINS LAW OFFICES, PLLC
P.O . Box 24564
Lexington, KY 40524-4564
David W . Barr
Workers' Compensation Funds
1047 US Highway 127 S, Suite 4
Frankfort, KY 40601
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