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200-CA-00(NP)

RENDERED:  JANUARY 20, 2017; 10:00 A.M.

NOT TO BE PUBLISHED

 

Commonwealth Of Kentucky

Court of Appeals

NO. 2015-CA-001405-WC


 

 

HOPKINS COUNTY COAL, LLC                                              

 

 

 

                           PETITION FOR REVIEW OF A DECISION

v.                   OF THE WORKERS’ COMPENSATION BOARD

                      ACTION NOS. WC-14-00987 AND WC-14-00988

 

 

 

WILLIAM MORSE,

HON. OTTO WOLFF, IV, ADMINISTRATIVE LAW JUDGE

AND WORKERS' COMPENSATION BOARD                          

 

 

 

AFFIRMING

 

** ** ** ** **

 

BEFORE:  D. LAMBERT, MAZE AND VANMETER,[1] JUDGES.

LAMBERT, D., JUDGE:  This matter is before the Court on petition for review of a decision by the Workers’ Compensation Board (hereinafter “the Board”) which affirmed the ruling by an Administrative Law Judge (“ALJ”) awarding permanent total disability (“PTD”) benefits to the claimant, William Morse, relating to his hearing loss.  Morse’s former employer, Hopkins County Coal, LLC (hereinafter “HCC”), filed the petition for review of the Board’s ruling.  Having reviewed the record and finding no error, we affirm.

I.  FACTUAL AND PROCEDURAL HISTORY

                    HCC owns and operates underground coal mine sites throughout western Kentucky.  On May 23, 2013, his last day of work for HCC, Morse had worked in various capacities in underground coal mines for approximately 40 years.  He had worked as a shuttle car operator, a pinning machine operator, and he had hung curtains in the mine.  His job duties during his tenure as a mine employee had included igniting dynamite and running heavy equipment.

                    In April of 2013, Morse reported to the on-site nurse practitioner with pain in his shoulder.  He was unsure when the injury had occurred, but testified that he had endured the pain for two to three days while working before reporting it.[2]  During preparation for his workers’ compensation claim for the shoulder injury, it was discovered that Morse had also suffered significant hearing loss.  He filed a claim for benefits for both the shoulder and the hearing loss.  Complicating matters is the fact that Morse was diagnosed with Parkinson’s disease after he left work on May 23, 2013.

                    The parties and the ALJ participated in a benefits review conference (“BRC”), which listed the issues stipulated by the parties, and which issues they contested.  The contested issues included the work-relatedness of the shoulder injury and the possible award of PTD benefits.  However, a handwritten notation on the printed BRC order seemed to indicate the shoulder injury was the only injury for which PTD benefits were sought. 

                    Following a hearing, the ALJ issued his Opinion, Award and Order.  The ALJ noted that the issue of the hearing loss was preserved for review, and that the handwriting on the BRC order was his own, and never intended to indicate the shoulder injury was the only contested issue with regard to Morse’s claim for PTD benefits.  The ALJ recited the evidence in the record regarding both the shoulder injury and the hearing loss.  He then concluded that Morse had not adequately established that his shoulder injury was work-related and denied PTD benefits as they related to that injury. 

The ALJ summarized evidence reflecting Morse’s hearing loss.  Such evidence consisted of reports by an audiologist, Brittany A. Brose.  Brose evaluated Morse’s hearing and assigned him a 21% whole person impairment rating.  She restricted Morse to wearing hearing protection while working in the noisy underground environment.  However, Morse testified that while HCC provided hearing protection to its employees, wearing such devices was both unsafe and impractical.  The devices prevented miners from hearing the tell-tale audible indications of an imminent ceiling collapse, and also hindered or prevented communications and instruction between co-workers.  Brose noted that Morse would “do well” with hearing assistance devices, though she did not require such devices or place him on restrictions mandating them.

Taking this evidence into account, the ALJ then applied the factors listed in Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000) to the facts presented.  The ALJ determined, using the Watson factors, that Morse is entitled to PTD benefits and awarded such benefits.  HCC then filed a petition for reconsideration, which yielded the same result.

HCC appealed the ruling to the Board, which affirmed the ALJ’s ruling.  This petition for review followed, wherein HCC makes two allegations of error.  First, HCC contends the Board committed error in affirming the ALJ’s conclusion that the issue of the hearing loss claim had been properly preserved for the ALJ’s review.  Second, HCC contends the Board erred in affirming the ALJ’s ruling because the record lacked substantial evidence to make such a finding.

II.  ANALYSIS

A.  STANDARD OF REVIEW

“On appeal, our standard of review of a decision of the Workers’ Compensation Board ‘is to correct the Board only where the… Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.’”  Pike Cty. Bd. of Educ. v. Mills, 260 S.W.3d 366, 368 (Ky.App. 2008) (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1982).  The claimant bears the burden of proof of entitlement to workers’ compensation benefits.  Id. (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App 1984)).

                    The workers’ compensation statute designates the ALJ as the sole fact-finder.  KRS 342.285(1).  The ALJ has “…discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence.” Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky.App. 2009).  KRS 342.285(2)(d) establishes a clear error standard of review for findings of fact, but courts have cautioned that the Board should not “…substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact[.]”  Id. (quoting Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky.App. 1982)).   An ALJ is entitled to believe or disbelieve all or parts of the evidence presented for review.  Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  “In short, appellate courts may not second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion.” Bowerman, at 866 (citing Medley v. Bd. of Educ., Shelby Cty., 168 S.W.3d 398, 406 (Ky.App. 2004)).

                    A reviewing court is, however, entitled to substitute its judgment for that of the agency where the agency's ruling reflects an “incorrect view of the law.” Kentucky Bd. of Nursing v. Ward, 890 S.W.2d 641, 642 (Ky.App. 1994).  When the question involves the application of law to a given set of facts, the appropriate review is de novo.  Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.App. 2001).  “If the reviewing court concludes the rule of law was correctly applied to facts supported by substantial evidence, the final order of the agency must be affirmed.”   Kentucky Unemployment Ins. Comm'n v. Cecil, 381 S.W.3d 238, 246 (Ky. 2012) (citing Brown Hotel Co. v. Edwards, 365 S.W.2d 299 (Ky. 1962)). 

B.  THE BOARD PROPERLY AFFIRMED THE ALJ’S CONCLUSION THAT THE ISSUE OF MORSE’S HEARING LOSS CLAIM WAS PRESERVED FOR REVIEW

                    HCC notes that the purpose of a BRC is to determine which issues are contested to narrow the scope of the ALJ’s review and to expedite the claim.  Gray v. TrimMaster, 173 S.W.3d 236 (Ky. 2005).  HCC further argues that issues not listed in the BRC order are precluded from further proceedings.  Id.  HCC bases this argument solely on the handwritten note on the BRC order, which the ALJ specifically noted was not intended to be read the way HCC insists.  Moreover, the ALJ noted in its order that the issue was, in fact, contested at the BRC, and even if not so treated then, it was subsequently treated as contested by HCC when HCC addressed the issue in its brief to the ALJ.

                    In addition to clarifying the ambiguous handwritten notation on the BRC order, the ALJ also relied on HCC’s implied consent to resolve the issue of Morse’s claims for benefits due to hearing loss.  Even if issues are not specifically raised in pleadings, they may still be treated as if raised if the issues were tried by either expressed or implied consent by the parties.  Kroger Co. v. Jones, 125 S.W.3d 241 (Ky. 2004).  The theory of implied consent “rest[s] on the absence of actual prejudice, i.e., on the ability to present a defense.”  Id. at 245.  Whether an issue was tried by implied consent rests within the discretion of the ALJ.  Nucor Corp. v. Gen. Elec., Co., 812 S.W.2d 136 (Ky. 1991).

                    The ALJ noted in his opinion that HCC acknowledged awareness of Brose’s report and findings, and that HCC’s brief to the ALJ discussed the extent of Morse’s impairment due to hearing loss.  HCC clearly had opportunity to present a defense to Morse’s claim, and in fact did attempt to present a defense.  This Court is in agreement with the Board in its conclusion that the ALJ did not abuse his discretion in adjudicating the issue of PTD benefits as it related to hearing loss.  The issue was preserved.

C.  THE BOARD DID NOT ERR IN AFFIRMING THE

AWARD OF PTD BENEFITS

                    The function of the Board on appeal from an ALJ’s ruling is to determine whether the ruling was so unreasonable under the evidence as to reverse it as a matter of law.  Watson at 52.  The statute defines an employee as being permanently and totally disabled when the employee “…due to an injury, 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 342.0011(11)(c).

The ALJ made a specific finding that he found Brose’s report credible, and applied the Watson factors to assess Morse’s circumstances.  His physical condition was such that even given reasonable accommodations (hearing aids), he would still be required to wear hearing protection per Brose’s restrictions, which were both unsafe and impractical in the noisy underground environment.  His advanced age (61 years) and his limited education (his highest level of scholastic completion was 11th grade) couple to significantly limit Morse’s ability to find gainful employment and perform duties required by such employment.  The ALJ also specifically found that Morse’s skills as a miner would not transfer to any occupation outside of the mine setting.  Morse is, due to a work-related occupational disease or injury, unable to find or maintain employment.

                    The ALJ’s Watson analysis does not contain any indication that Morse’s shoulder injury or his Parkinson’s disease played any role in the conclusion.  There is no evidence of record, other than HCC’s conjecture and supposition, that the ALJ considered anything beyond the evidence presented on the issue of Morse’s hearing loss when determining that Morse’s hearing loss was the basis for awarding PTD benefits. 

                    HCC contends it was error for the ALJ and the Board to fail to presume Morse’s reason for retirement was the shoulder injury or the Parkinson’s disease rather than the hearing loss.  It instead asks this Court to disturb the ALJ’s findings of fact and reverse the Board which affirmed them.  This Court is neither inclined nor permitted by case law to do so.  “Evidence that would have supported but not compelled a different decision is an inadequate basis for reversal on appeal.”  Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012).

III.  CONCLUSION

                    This Court, having reviewed the record, finds no error.  The issue of Morse’s hearing loss was properly preserved for review, the ALJ’s factual findings were supported by substantial and credible evidence, and the ALJ’s conclusion was the result of an appropriate application of the authorities to those facts.  The Board

 

therefore did not err in affirming the ALJ’s award.  We likewise AFFIRM.

 

                   ALL CONCUR. 

 

BRIEF FOR APPELLANT:

 

Brandy B. Hassman

Lexington, Kentucky

 

BRIEF FOR APPELLEE:

 

James (Chip) Adams, II

Hopkinsville, Kentucky

 



[1] Judge Laurance B. VanMeter concurred in this opinion prior to being elected to the Kentucky Supreme Court.  Release of this opinion was delayed by administrative handling.

[2] Though Morse also sought, and the ALJ denied, disability benefits for this shoulder injury, it is not an issue in this appeal, and the Court only notes the claim for its significance in the sequence of events.