RENDERED: JANUARY 20, 2017; 10:00 A.M.
NOT TO BE PUBLISHED
Court of Appeals
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-14-00987 AND WC-14-00988
HON. OTTO
WOLFF, IV, ADMINISTRATIVE LAW JUDGE
AND WORKERS' COMPENSATION BOARD
** ** ** ** **
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.