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Workers’
Compensation Board
OPINION
ENTERED: November 14, 2014
CLAIM NO. 201300211 & 201300210
TECO COAL CORPORATION PETITIONER
VS. APPEAL FROM HON. JONATHAN
R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
LLOYD PENCE
HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
ALVEY,
Chairman. Teco Coal Corporation (“Teco”)
seeks review of the Order on Remand rendered June 17, 2014, and the order on
reconsideration issued August 8, 2014 by Hon. Jonathan R. Weatherby,
Administrative Law Judge (“ALJ”). Teco
also appeals from the opinion rendered by the ALJ on September 9, 2013, and the
order on reconsideration issued October 7, 2013, from which it previously
appealed, awarding Lloyd Pence (“Pence”) permanent partial disability (“PPD”)
benefits and medical benefits.
On appeal, Teco argues the ALJ’s
decision is not supported by substantial evidence. Teco argues neither Dr. Chad Morgan nor Dr.
Jared Madden offered scientific or medical studies supporting their opinions
Pence’s conditions were caused by his work. Because the ALJ’s decision is supported by
substantial evidence, and he provided an adequate basis for his determinations,
we affirm.
We first note this Board previously
rendered an opinion on March 21, 2014, remanding the claim to the ALJ to
provide specific additional findings clarifying whether Pence sustained
work-related injuries, the body parts injured, and the manifestation date for
each injury. Although the ALJ did not
completely comply with this direction in the June 17, 2014 order, this
was cured by the order on reconsideration issued August 8, 2014.
As we noted in our previous opinion, Pence
filed a Form 101 on February 8, 2013 alleging cumulative trauma injuries to his
“neck and back” on March 31, 2011 due to repetitive use while employed by Teco
as a flowman/ repairman beginning in 2000.
In addition to the Form 101, Pence filed claims for hearing loss and
coal worker’s pneumoconiosis. The
hearing loss claim was consolidated with the injury claim, but was
deconsolidated on remand. The coal
worker’s pneumoconiosis claim was bifurcated and is irrelevant to this
appeal. The ALJ awarded PPD benefits
based upon a 17% impairment rating assessed by Dr. Madden pursuant to the American Medical Association Guides to the Evaluation
of Permanent Impairment 5th Edition (“AMA Guides”).
Pence’s testimony and the medical
evidence were reviewed in the opinion rendered by this Board on March 21, 2014,
and therefore will not be extensively outlined again. Teco now argues, as it did in its original
appeal, the ALJ’s decisions awarding PPD and medical benefits for cervical,
thoracic and lumbar injuries were not supported by substantial evidence. In awarding benefits, the ALJ relied upon the
opinions of Drs. Morgan and Madden, and chose not to rely upon the opinions of
Dr. Daniel D. Primm, Jr. and Dr. John Vaughn.
In our opinion rendered March 21, 2014, this Board outlined the
discretion afforded ALJs in reaching their conclusions. We noted the ALJ needed to provide additional
analysis regarding the basis for his decision, clearly noting he is the finder
of fact. We specifically stated as
follows:
Although the ALJ clearly
infers Pence sustained some type of work-related injury during the course of
his employment, he is unclear as to the scope of the injury. In the opinion, the ALJ
concluded Pence has “suffered a 17% whole person impairment and that he is unable to
return to the same type of employment.”
In reaching this conclusion, the ALJ relied upon Pence’s testimony
regarding the years of hard work he has endured in the coal industry, the
resulting effects of his work on his body, his desire to continue working if
possible and his inability to do so due to his work injures. The ALJ also relied upon the opinion of Dr.
Madden who “opines that the Plaintiff has suffered a 17% whole person
impairment related to his work activities over the last 38 years and that he is
unable to return to the same type of employment.” Therefore, the ALJ awarded PPD benefits based
upon the 17% impairment rating assessed by Dr. Madden and enhanced by the 3.8
multiplier, and medical benefits “for the cure and relief from the effects of
the work-related injury and hearing loss.”
In the order on reconsideration, the ALJ reiterated his reliance on
Pence’s testimony and on Dr. Madden’s assessment of impairment.
Based upon the
above-referenced limited findings of fact, we cannot discern whether the ALJ
intended to adopt the entirety of Dr. Madden’s opinion or just portions of
it. This is especially true in light of
the conflicting evidence regarding the scope of injuries allegedly sustained by
Pence due to cumulative trauma.
Pence initially testified at
his deposition he only experiences back problems due to his employment in the
coal mining industry. However, he later
stated he also experiences neck pain and acknowledged he receives chiropractic
treatment for both conditions. The
chiropractic records of Dr. Morgan indicate Pence received treatment for low
back and neck pain and stiffness from June to December 2012. Dr. Primm diagnosed age-related neck and back
symptoms and noted his examination of Pence’s cervical or lumbar spine were
unremarkable. He likewise found no
evidence of a cumulative injury or disorder produced by his work as a coal
miner. In the July 8, 2013 report, Dr.
Vaughan noted Pence only complained of low back pain. He diagnosed chronic
low back pain due to Pence’s age, which did not warrant an impairment rating. On the other hand, Dr. Madden noted Pence
complained for low back, upper back and neck symptoms. He diagnosed cervical, thoracic and lumbar degenerative
disc disease, chronic neck and back pain, chronic pain syndrome due to
cumulative trauma, and lumbar radiculopathy most likely due to neuroforaminal
and spinal stenosis. He also found Pence’s current conditions stem from
cumulative trauma due to his work in the mines. He assessed an impairment rating for the
cervical, thoracic and lumbar spine, yielding a combined 17% impairment rating,
although he made no specific finding Pence sustained a work-related injury or
injuries.
Based upon the
above-referenced evidence of record, the ALJ’s findings are equivocal. Because the ALJ made no specific finding
regarding the scope of Pence’s injury or injuries, we are unable to perform a
meaningful review. Kentland
Elkhorn Coal Corp. v. Yates, supra; Shields v. Pittsburgh
and Midway Coal Mining Co., supra.
On remand, the ALJ is directed to make additional findings regarding the
scope of Pence’s injury or injuries, as defined by the Workers’ Compensation
Act. The ALJ must specify the injuries
Pence sustained, and the causation for each.
The ALJ must also specify what evidence in the record he relied upon in
making such finding. Although neither party
directly raised this issue, this Board is permitted to sua sponte reach issues even if unpreserved. KRS 342.285(2)(c); KRS
342.285(3); George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288
(Ky. 2004).
The
ALJ determined Pence has suffered a 17% impairment rating, without specifically
stating he sustained an injury or injuries.
On remand, the ALJ must determine whether Pence sustained work-related
injuries. If so, he must identify what
was injured, and the manifestation date for each injury. We note a finding of a cumulative trauma
injury is supported by the report of Dr. Madden and Pence’s own testimony which
constitute substantial evidence because an injured worker’s credible testimony is probative of
his ability to labor post-injury. See Hush
v. Abrams, 584 S.W.2d 48 (Ky. 1979); See also Carte v. Loretto Motherhouse
Infirmary,
19 S.W.3d 122 (Ky. App. 2000).
In the March
29, 2013 opinion, Dr.
Madden concluded Pence’s current medical status directly resulted from his work
history in the mines. He later
reiterated Pence’s complaints are due to the cumulative nature of recurrent and
chronic trauma associated with his reported work environment. Dr. Madden then opined as follows:
Pence suffered a workplace
trauma over the course of 38 years in the mining industry, resulting in low
back pain with radiculopathy, neck and thoracic pain due to degenerative
changes and significant hearing loss.
His reported work environment and complaints are consistent with the
abnormal findings on physical examination.
Pursuant to the AMA Guides,
Dr. Madden assessed a 17% impairment rating.
He concluded Pence does not retain the physical capacity to return to
the type of work performed at the time of injury and he assigned permanent
restrictions.
Teco’s arguments on appeal
merely point to conflicting evidence of Drs. Primm and Vaughan, which does not
constitute an adequate basis for reversal on appeal. McCloud
v. Beth-Elkhorn Corp., supra. The ALJ, as fact-finder, has full discretion
to determine the physician or physicians upon which he relies. We acknowledge the differing medical opinions
in the record. However, if “the
physicians in a case genuinely express medically sound, but differing opinions
as to the severity of a claimant's injury, the ALJ has the discretion to choose
which physician's opinion to believe.” Jones v. Brasch-Barry General
Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006). The fact there is contrary evidence in the
record does not compel a different result.
We find Teco’s argument
attacking Dr. Madden’s qualifications unpersuasive. The
AMA Guides, at page 18 states, “impairment evaluations are performed by
a licensed physician.” The AMA Guides
do not require impairment ratings to be assessed only by certain specialties of
practice. We likewise find no provision
in the AMA Guides stating causation may only be assessed by certain
specialties of practice. KRS
342.0011(32) states the following:
"Physician" means physicians
and surgeons, psychologists, optometrists, dentists, podiatrists, and
osteopathic and chiropractic practitioners acting within the scope of their
license issued by the Commonwealth;
Teco does not contend Dr. Madden is not
a licensed physician. Therefore,
Dr. Madden was qualified to render an opinion regarding whether Pence sustained
cumulative trauma injuries due to lifetime employment in the coal mining
industry. The fact Dr. Madden’s specialty is not
orthopedic medicine does not render his medical opinion unsubstantial; it
merely goes to the weight of the evidence which the ALJ could freely
consider.
In the order on remand issued June 17, 2014, the ALJ again stated he
based his determinations upon the opinions of Drs. Morgan and Madden without
adequately complying with the direction from this Board. Teco filed a petition for reconsideration on
June 26, 2014, arguing the ALJ had not complied with the direction of this
Board. In the order on reconsideration issued August 8, 2014, the ALJ outlined
the requirements for determining a manifestation date. The ALJ then determined Pence sustained
cervical and lumbar injuries which manifested on January 4, 2013 per the report
of Dr. Morgan. He determined Pence
sustained a thoracic injury which manifested on March 9, 2013, the date of Dr.
Madden’s evaluation. The order on reconsideration,
when coupled with the order on remand issued June 17, 2014, constitute
compliance with the directives of this Board and are sufficient to support the
award of benefits.
As we previously noted, Pence, the
claimant in a workers’ compensation proceeding, had the burden of proving each
of the essential elements of his cause of action, including the extent of his
occupational disability. See KRS
342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since he was successful,
the question on appeal is whether substantial evidence
supports the ALJ’s decision. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Substantial evidence” is
defined as evidence of relevant consequence having the fitness to induce
conviction in the minds of reasonable persons.
Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky.
1971).
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable
inferences from the evidence, reject any testimony, and
believe or disbelieve various parts of the evidence, regardless of whether it
comes from the same witness or the same adversary party’s total proof.
Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores,
560 S.W.2d 15 (Ky. 1977). In that
regard, an ALJ is vested with broad authority to decide questions involving causation. Dravo Lime
Co. v. Eakins, 156 S.W. 3d 283 (Ky. 2003).
An ALJ may reject, believe, or disbelieve various parts of the evidence,
regardless of whether it comes from the same witness or the same adversary
party’s total proof. Magic Coal Co.
v. Fox, 19 S.W.3d 88 (Ky. 2000).
Although a party may note evidence supporting a different outcome than
reached by an ALJ, such is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974). Rather, it must be
shown there was no evidence of substantial probative value to support the
decision. Special Fund v. Francis,
708 S.W.2d 641 (Ky. 1986).
On remand, the ALJ complied with the
direction of this Board, and made the determinations necessary to support his
decision. The ALJ, not this Board, is
the finder of fact. The ALJ made the
requisite findings to support the award of benefits. Although his findings were minimal, the ALJ
provided a sufficient explanation and basis for his decision. While Teco points to evidence upon which the
ALJ could have relied, he was not compelled to do so. Because the ALJ made the findings directed by
this Board, and his determinations are supported by substantial evidence, his
decision will not be disturbed.
Accordingly, the opinion,
subsequent orders by Hon. Jonathan R. Weatherby, Administrative Law Judge, on
September 9, 2013; October 7, 2013; June 17, 2014; and August 8, 2014 are
hereby AFFIRMED.
ALL
CONCUR.
COUNSEL
FOR PETITIONER:
HON SARAH K MCGUIRE
P O BOX 351
PIKEVILLE, KY 41502
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 SOUTH MAIN STREET
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
