BOYD ANDERSON V. MCCOY ELKHORN COAL, D/B/A JAMES RIVER COAL COMPANY, ET AL.
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RENDERED : November 1, 2007
NOT TO BE PUBLISHED
AlUtPrmt (9ourf of
A
2006-SC-000773-WC
BOYD ANDERSON
V
APPELLANT
ON APPEAL FROM COURT OF APPEALS
2005-CA-002607-WC
WORKERS' COMPENSATION NO. 04-93965
MCCOY ELKHORN COAL, D/B/A
JAMES RIVER COAL COMPANY,
HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE, AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant's work-related
back injury caused a 10% impairment and that he lacked the physical capacity to return
to work as a coal miner but was capable of other work. The Workers' Compensation
Board affirmed . The Court of Appeals affirmed although a dissenting opinion found the
award of partial rather than total disability to be clearly erroneous. Because the
evidence would have supported but did not compel a total disability award under Ira A.
Watson Department Stores v. Hamilton , 34 S.W.3d 48 (Ky. 2000), we affirm .
The claimant was born in 1952 . He had a seventh-grade education with no
specialized or vocational training. He began working as a coal miner in 1983 and had
worked for the defendant-employer since 1990, shoveling the belt line. He felt a pull in
his back while shoveling mud on February 27, 2004. After completing his shift, he
sought treatment at Pikeville Methodist Hospital .
The claimant never returned to work. His application for benefits alleged the
back injury and resulting anxiety and depression . He testified that his back and left leg
hurt constantly, that he had to change positions frequently and to lie down two or three
times per day, that he sometimes had difficulty walking, and that he drove a little bit but
otherwise sat around the house. He refused to have surgery that Dr. Bean
recommended because its success could not be guaranteed. He acknowledged that
his employer had offered a light-duty job but stated that he could not perform it due to
his back pain and his nerves. He had twice sought but been denied Social Security
Disability benefits .
Hospital records indicated that the claimant presented on February 27, 2004. He
was diagnosed with an acute lumbar strain with radiculopathy. X-rays revealed
advanced degenerative disc disease at L5-S1 .
Dr. Siddiqui began treating the claimant on March 18, 2004, for acute lower back
pain that was associated with the injury, for possible herniated discs and lumbosacral
radiculopathy, and for arthritis . After an April 8, 2004, MRI revealed a bulging disc at
L4-5 and strongly suggested the possibility of a herniated disc at L3-4, Dr. Siddiqui took
the claimant off work. Treatment continued until December 1, 2004, when the practice
closed and Dr. Siddiqui referred the claimant to his primary care physician, Dr. Samuel
King. None of Dr. King's treatment notes concerned the work-related injury, but they
did indicate that the claimant had been treated in 1998 and 1999 for symptoms of
mechanical low back pain .
A report from the Injury and Rehab Centers of Kentucky indicated that Dr. John
A. King evaluated the claimant on May 6, 2004. He diagnosed a herniated nucleus
pulposis at L3-4, foraminal stenosis of the L3 nerve root, and intractable lumbar pain.
Dr . King recommended a series of epidural steroid injections in an attempt to relieve the
swelling and inflammation at the L3 nerve root. Due to the extreme pressure at the
nerve root, Dr. King did not think that epidural blocks would provide long-lasting relief
and that the claimant would become a surgical candidate. He recommended that the
claimant be kept off work other than telephone duties or other light-duty tasks.
Dr. Bean saw the claimant once, on September 27, 2004, at which time he
complained of left hip and leg pain . He confirmed the existence of a herniated disc and
recommended a lumbar diskectomy; however, the claimant refused to have the
procedure because its success could not be guaranteed. Dr. Bean stated that the
procedure had a 90% success rate and that the claimant was a good candidate based
on the MRI findings, history, and physical findings. Without the surgery, the claimant
would have reached maximum medical improvement (MMI) after six to nine months of
treatment and would retain a 10% permanent impairment rating. He would be restricted
to light-duty work, lifting no more than 20 pounds and bending, stooping, or kneeling
only occasionally. Even with the surgery, Dr. Bean would not recommend a return to
coal mining unless it was the only way that the claimant could earn a living.
Dr. Rapier evaluated the claimant on October 4, 2004, for complaints of low back
pain . He found no evidence of radiculopathy and diagnosed a low back strain that had
aggravated pre-existing, dormant degenerative changes . He assigned a 5% permanent
impairment rating and stated that the injury caused the claimant's complaints . Also, he
restricted the claimant to occasional lifting of 20 pounds or less, to frequent lifting of 10
pounds or less, and to no repetitive bending, lifting, turning, or twisting. After reviewing
Dr. Bean's report, Dr. Rapier stated that he would assign a 10% permanent impairment
rating if the report and MRI findings were correct .
Dr. Granacher performed a psychiatric evaluation on September 23, 2004. He
examined the claimant, reviewed medical records, and conducted psychological testing,
noting that the claimant's effort was spotty and that it had not been possible to test him
adequately. Dr. Granacher diagnosed pre-existing mild mental retardation and
functional illiteracy . He also diagnosed anxiety and depression, which were induced by
the back injury and resulted in a 15% permanent impairment rating. In his opinion, the
claimant's limited intelligence and poor education caused him to be unable to cope with
what would be a relatively minor injury to other coal miners. His conclusions remained
the same after reviewing Dr. Bean's report.
Dr. Ruth performed a psychiatric evaluation on February 1, 2005, and diagnosed
pre-existing mental retardation . Noting that the claimant did not presently endorse the
symptoms of anxiety and irritability that he said he had experienced at the time of the
injury, Dr. Ruth concluded that the conditions had resolved . He assigned a 12%
permanent impairment rating (class Ii or mild impairment) and restrictions that he based
on the claimant's intellectual weakness and illiteracy rather than the effects of the injury.
William Spears was a production services manager for the employer and one of
the claimant's supervisors . Spears testified that he authorized an offer of light-duty
work that was within the claimant's restrictions, but the claimant failed to attempt it. He
stated that the offer remained open and that the job would pay between $9 .50 and
$11 .00 per hour, which was less than the claimant earned when he was injured .
Relying on Dr. Ruth, the AU determined that no causal relationship existed
between the claimant's psychiatric impairment and the work-related injury . The AU
summarized the evidence, recited the standard set forth in Ira A. Watson Department
Stores v. Hamilton , supra, and found him able to work although he lacked the physical
capacity to return to coal mining. The AU acknowledged that he would not be able to
earn the same or a greater wage even if he returned to the work that he had been
offered .
The claimant continues to assert that the AU erred as a matter of law by failing
to consider the factors set forth in Ira A . Watson Department Stores v. Hamilton , supra ,
when concluding that he was only partially disabled . He asserts that he suffers from
occupational hearing loss and pneumoconiosis in addition to the back and leg injury,
but the record contains no evidence of an award for either condition . Stressing his lack
of education and functional illiteracy, he asserts that he cannot reasonably be expected
to work answering telephones or providing other service in a place of business . We
disagree .
It was the claimant's burden to prove every element of his claim for benefits,
including the assertion that he was totally rather than only partially disabled . Although
Hush v. Abrams , 584 S.W.2d 48 (Ky. 1979), indicates that a worker's testimony is
competent evidence of his physical condition, Bullock v. Gay , 177 S .W.2d 883 (Ky.
1944), points out that the fact-finder is not required to give any particular weight to a
claimant's testimony even when it is uncontradicted . Addressing the standard of review
on appeal, Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains that if
the party with the burden of proof fails to convince the fact-finder, that party must show
on appeal that the favorable evidence was so overwhelming that no reasonable person
could have failed to be persuaded .
KRS 342.0011(11)(c) states that a totally disabled worker "has a permanent
disability rating and has a complete and permanent inability to perform any type of work
as a result of an injury . . . ." KRS 342.730(1)(a) prohibits impairment from non-work
related conditions, pneumoconiosis, or hearing loss to be considered when determining
if a worker is totally disabled . Ira A. Watson Department Stores v. Hamilton , supra,
explained, however, that some of the Osborne v. Johnson, 432 S .W.2d 800 (Ky . 1968),
factors remain relevant when determining if a worker is totally disabled under the post1996 Act. There was evidence that Hamilton's work-related injury caused a permanent
impairment rating and no evidence of a non-work-related permanent impairment rating,
occupational hearing loss, or pneumoconiosis . Hamilton was found to be totally
disabled based on the medical evidence, his age, the nature of his back injury, and the
fact that he customarily performed manual labor. The question before the court was
whether substantial evidence supported the award, and the answer was that it did.
At issue in the present case is whether the claimant's evidence of total disability
was so overwhelming as to compel such a finding. He testified to symptoms of anxiety
and depression ; to constant and severe back, leg, and foot symptoms ; and to
occasional difficulty walking. He stated that he did not wish to have surgery if the
outcome could not be guaranteed and that Dr. King had advised him not to have it. He
used a cane, although no physician prescribed one, and he thought himself to be
incapable of working due to his back injury and his nerves .
Although Dr. Granacher thought that the claimant exhibited mild mental
retardation, he assigned a permanent impairment rating based solely on anxiety and
depression due to the injury. When evaluated by Dr. Ruth several months later, the
claimant denied current symptoms of anxiety and depression, and Dr. Ruth concluded
that the symptoms had resolved . He assigned a permanent impairment rating based
solely on pre-existing mental retardation, but both he and Dr. Granacher noted that
much of the psychological testing was invalid . Neither expressed an opinion that the
claimant's physical and intellectual status rendered him incapable of working . Although
the claimant testified to continued symptoms of depression and anxiety at the hearing, it
was reasonable for the AU to conclude that the conditions had resolved .
No expert who treated or evaluated the back injury stated that it rendered the
claimant incapable of working. Although medical evidence limited him to light duty
work, Dr. Bean implied that surgery would render him capable of heavier work. The
claimant's employer offered to provide work within his restrictions, but he refused to
attempt it. Thus, although there was evidence to have supported a finding of total
disability had one been made, it was not so overwhelming as to compel such a finding .
The decision of the Court of Appeals is affirmed .
Lambert, C.J ., and Abramson, Cunningham, Minton, Noble, and Schroder, JJ .,
concur . Scott, J ., recuses .
COUNSEL FOR APPELLANT,
BOYD ANDERSON :
GLENN M . HAMMOND
KRISTIE GOFF
GLENN M . HAMMOND LAW OFFICE
P .O . BOX 1109
PIKEVILLE, KY 41502
COUNSEL FOR APPELLEE,
MCCOY ELKHORN COAL, D/B/A JAMES RIVER COAL COMPANY:
KAMP T. PURDY
FERRERI & FOGLE
300 EAST MAIN STREET
SUITE 400
LEXINGTON, KY 40507
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