ANDY VANOVER V. WHITAKER COAL CORPORATION; ROBERT L . WHITTAKER, DIRECTOR OF WORKERS' COMPENSATION FUND, SUCCESSOR TO SPECIAL FUND ; SHEILA C . LOWTHER, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED."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IS NOT TO BE PUBLISHED AND SHALL NOT BE
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CASE INANY CO URT OF THIS STA TE.
RENDERED : January 22, 2004
NOT TO BE PUBLISHED
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2003-SC-0088-WC
ANDY VANOVER
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-0998-WC
WORKERS' COMPENSATION BOARD NOS. 85-21717, 90-37727 & 93-30395
WHITAKER COAL CORPORATION ; ROBERT
L . WHITTAKER, DIRECTOR OF WORKERS'
COMPENSATION FUND, SUCCESSOR TO
SPECIAL FUND ; SHEILA C . LOWTHER,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
In a decision that was later affirmed by the Workers' Compensation Board
(Board) and the Court of Appeals, an Administrative Law Judge (ALJ) determined that
claimant failed to meet his burden of proving increased occupational disability at
reopening . Appealing, the claimant maintains that although his injury occurred before
December 12, 1996, the ALJ erred by applying the 1996 version of the Act, by ignoring
uncontradicted evidence, and by failing to address the issue of pain. We affirm .
The claimant was born in 1953 and had a ninth-grade education . He worked as
an underground coal miner for about 22 years and was a certified mine foreman . In
1985, he injured his lower back while working for the defendant-employer. Dr. Travis
testified that the claimant complained of back pain that radiated into the left leg. He
performed a diskectomy at L5-S1 and released the claimant to return to work in
October, 1985. Dr. Travis assigned a 5-10% impairment . In 1987, the claimant settled
with his employer for a 10% occupational disability.
On June 5, 1990, a falling rock struck his head and injured his neck. He
continued to work for several months. Conservative treatment proved ineffective,
leading Dr. Tibbs to perform a cervical fusion in 1992 . The claimant did not return to
work thereafter . At the hearing, he testified that he suffered from severe headaches
that caused him to vomit, from cramping and numbness in his left hand and arm, and
from a reduced range of motion in his neck. He also complained of problems with both
legs that he attributed to the back injury . He stated that he had difficulty helping his
wife with household chores and was incapable of returning to his previous work.
Dr. Tibbs testified that the surgery was successful, that the claimant had a
neurological recovery, but that he had a restricted range of motion in the neck and
some arthritic symptoms . He stated that the claimant's cervical condition would render
him unable to work in the restricted heights of coal mines and would prevent him from
performing the duties of a mine inspector. Dr. Tibbs assigned an 18% impairment .
Dr. Lowe noted that the claimant's grip strength was weaker in the left and that
he had decreased sensation over the left thumb . He also reported a C6 neuropathy
and a decreased range of motion in the neck. He recommended that the claimant
avoid overhead work and was of the opinion that he could not return to underground
mining . Dr. Lowe placed the claimant's impairment at 30% .
Dr. Rapier reported numbness in the left radial forearm and thumb, diminished
grip strength in the left hand, and neck pain . He assigned a 25% impairment and
restricted the claimant from lifting more than 20 pounds .
On July 19, 1995, the claimant was awarded a 60% occupational disability for the
neck injury. The opinion and award indicated that the 1985 injury had, in fact, caused a
10% disability. Dissatisfied with the award, the claimant appealed . Although he
maintained that he was totally disabled, the Board affirmed .
On December 11, 2000, the claimant filed a motion to reopen . He alleged a
worsening of condition due to increased pain and asserted that his occupational
disability had increased since the award . The motion was granted to the extent that the
taking of further proof was ordered . At reopening, the claimant testified that his
symptoms were worse than in 1995 and that they prevented him from working . In
support of his allegations, he offered evidence from Drs . Chaney and Templin .
Dr . Chaney testified that he began treating the claimant sometime before 1995.
On a number of occasions since 1995, the claimant had complained of muscle spasms
in his neck. Dr. Chaney did not see the claimant between July, 1997, and July, 1999,
but in August, 1999, the claimant returned following a flare-up of back pain . Although
he referred the claimant to Dr. Bean, only conservative treatment was recommended .
Dr. Chaney testified that he did not see the claimant between September, 1999, and
December, 2000 . In his opinion, a worsening in the claimant's condition was evidenced
by his increased complaints of pain, for which he took a substantial amount of
medication . Dr. Chaney testified that the claimant had a 24% impairment and was
incapable of working in the mines. He acknowledged, however, that no changes were
evident on physical examination or x-ray and that since the neck injury and surgery, the
claimant had always experienced muscle spasms and had some limitation in his range
of motion and straight leg raising .
Dr. Templin evaluated the claimant in April, 2001 . He noted that low back
problems were a factor in the claimant's inability to return to work after the neck injury.
He also noted the claimant's complaint that his condition had worsened since 1995. He
assigned a 38% impairment and restricted the claimant from prolonged standing,
walking, or lifting more than 20 pounds from the waist or 5 pounds from the floor.
With respect to the back injury, the employer relied upon testimony that Dr.
Travis gave in the initial proceeding . The employer also introduced testimony from Dr.
Brooks, an associate of Dr. Travis who saw the claimant in November, 1990 . At that
time, EMGINCV studies and an MRI of the cervical spine were normal. Dr. Brooks
prescribed physical therapy and medication, kept the claimant off work for 30 days, and
was of the opinion that he could return to full duty thereafter.
After reviewing the lay and medical evidence, the ALJ determined that the
claimant's testimony at reopening was essentially the same as in 1995. At both times,
he testified that his symptoms were so severe that he could not return to any type of
employment . The ALJ noted that although Dr. Chaney testified that he was prescribing
more pain medication, the claimant had gone for periods of as long as two years
without treatment . Although Dr. Templin indicated that the claimant now voiced more
subjective complaints, there was no objective evidence of a worsening of condition.
Furthermore, the claimant had been receiving social security disability benefits for at
least six years . The ALJ concluded, therefore, that the claimant failed to prove that his
physical condition had worsened or that he was more disabled at reopening than he
had been in 1995 .
The claimant petitioned for reconsideration, asserting that the ALJ had effectively
found him to be permanently and totally disabled when he received the initial award .
Rejecting the assertion as incorrect, the ALJ explained that the claimant had failed to
show a change of condition since the initial award . Following the denial of his petition,
the claimant appealed .
A workers' compensation award is the equivalent of a final judgment and is
enforceable as such in circuit court under KRS 342 .305. KRS 342 .125 gives some
relief from the principles of the finality of judgments by permitting the reopening and
modification of a final award upon proof of a post-award change of occupational
disability. An allegation of a change of occupational disability may be supported by
evidence of either physical or economic changes . See Peabody Coal Co . v. Gossett,
Ky., 819 S .W.2d 33, 35 (1991).
The 1995 award established, as a matter of law, that the claimant had a 70%
occupational disability, i a 10% disability for the back condition and a 60% disability
.,
.e
for the neck condition . This reopening was not based upon an allegation of increased
occupational disability due to a change of economic conditions . Thus, the claimant's
burden at reopening was to prove that a change in his physical condition since the 1995
award caused him to be more occupationally disabled than he was in 1995 .
The claimant argues that Dr. Chaney testified to his inability to return to coal
mining and to the fact that x-rays, the presence of muscle spasms, and difficulty with
straight leg raising all supported the claimant's assertion that he was in pain . He also
argues that Dr. Templin noted that the surgeries and residual scar formation were
consistent with chronic pain and that the claimant lacked the physical capacity to return
to coal mining . The issue at reopening, however, was not whether the claimant was in
pain or was able to return to coal mining . It was whether there was a worsening of his
physical condition since 1995 and, if so, whether it resulted in increased occupational
disability under the Osborne v. Johnson , Ky., 432 S.W.2d 800 (1968), standard .
Contrary to the claimant's assertion, there is no indication that the AU applied
the 1996 version of the Act or failed to consider the effects of pain when deciding the
merits of his motion. In reciting Dr. Templin's testimony, the AU noted a statement that
the claimant's condition had "subjectively worsened" since the settlement of the back
claim and award for the neck claim but also noted that Dr. Templin reported no
diagnostic studies or other objective evidence that supported the claimant's subjective
complaints of increased pain. Completing the analysis, the AU noted that the
claimant's testimony at reopening "was essentially the same" as in 1995, at which time
he had also argued that he was totally disabled . He had made no attempt to work since
then and had been receiving social security disability benefits for at least six years .
Although Dr. Chaney prescribed greater doses of pain medication, his records indicated
that the claimant's complaints had remained essentially unchanged for the past six
years . Furthermore, there were treatment gaps of as much as two years . When Dr .
Bean saw the claimant in 1999, he recommended no change in treatment and did not
believe that further diagnostic testing was necessary .
Although a worker's testimony is competent evidence of his physical condition at
particular points in time, it will not compel a particular finding even when it is
uncontradicted . Hush v. Abrams , Ky., 584 S .W.2d 48 (1979); Grider Hill Dock v. Sloan,
Ky., 448 S.W .2d 373 (1969). Here, the ALJ noted that the claimant's testimony at
reopening was essentially the same as in 1995 . In pre-1996 claims, both objective and
subjective factors are relevant to determining whether there are changes in a worker's
physical condition . See Beale v. Rollgy , Ky., 777 S .W .2d 921, 923 (1989) . Both Dr.
Templin and Dr. Chaney based their opinions that the claimant's physical condition
changed after 1995 on his complaints of increased pain . Thus, the claimant's credibility
and the lack of objective evidence to support the complaints of increased pain were
relevant when weighing the medical opinions and provided an adequate basis for
rejecting them . The ALJ's conclusion that the claimant failed to show a worsening of
physical condition was reasonable under the circumstances and, therefore, a favorable
finding was not compelled . Special Fund v. Francis , Ky., 708 S .W .2d 641, 643 (1986) .
Likewise, in view of the claimant's failure to attempt any type of work since undergoing
surgery in 1992, it was reasonable for the ALJ to conclude that he failed to show a postaward increase in occupational disability due to his injuries . Id.
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
James D. Holliday
109 Broadway
P .O. Box 29
Hazard, KY 41702
COUNSEL FOR APPELLEE,
WHITAKER COAL CORPORATION :
Charles W. Berger
207 N . Main Street, Ste . 1
P .O. Box 876
Harlan, KY 40831
COUNSEL FOR APPELLEE,
ROBERT L . WHITTAKER, DIRECTOR OF
WORKERS' COMPENSATION FUND,
SUCCESSOR TO THE SPECIAL FUND:
Sharon M. Cooper
Special Fund
1047 U .S . 127 South
Frankfort, KY 40601
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