Opinion
NO. 2014-CA-000864-WC
06-12-2015
ROY G. MORGAN APPELLANT v. DIXIE FUEL CO., INC.; HON. STEVEN G. BOLTON, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE: Jeffrey Damron Pikeville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-01069
OPINION
AFFIRMING
BEFORE: MAZE, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Roy G. Morgan appeals from the Workers' Compensation Board's opinion affirming the Administrative Law Judge's (ALJ) denial of workers' compensation benefits.
On August 14, 2012, Morgan filed a claim for workers' compensation benefits alleging that on May 6, 2012, he injured his back, both legs and knees through cumulative trauma due to the repetitive use. To resolve this claim, the ALJ considered deposition testimony from Morgan and reports from three physicians.
Morgan, who was born in 1952, testified he held various jobs over his career, mostly in surface mining. He worked eleven and a half years for the Dixie Fuel Company (Dixie), most recently as the head blaster, until he was laid off on May 6, 2012, due to a market downturn. As the head blaster, he lifted forty-five pound wet bags to load "wet hole," rolled out the trip wire and covered holes with dirt.
Morgan testified he began having problems with his back and neck between three and five years ago. While he attributed this injury to the lifting, and said his back and neck would hurt when he was lifting, he did not have any specific injury to his back or neck which triggered this pain. He continued to work despite the pain because he wanted to work until he could retire at age sixty-two. He testified his neck hurt all the time and woke him up at night, and he had numbness in his left hand and tingling in his fingers. His back problems were periodic but, at least two to three times a week, his back pain increased. He does not believe he is able to resume his job in his current condition.
Dr. Dale Williams, D.C., performed a chiropractic evaluation of Morgan and diagnosed him with cervicalgia disc degeneration, disc segmental degeneration, lumbalgia SI pelvic imbalance and mild degeneration. Dr. Williams opined the repetitive nature of the mining industry caused his accumulative damage but did not assign him an impairment rating.
Dr. Jared W. Madden, D.O., conducted an independent medical evaluation. He diagnosed Morgan with cervical degenerative disc disease, lumbar degenerative disc disease and lumbar radiculopathy. He opined Morgan was suffering from the effects of a long history of cumulative workplace trauma associated with heavy manual labor and blasting. He attributed Morgan's degenerative disc and joint disease and cervical disc herniation as being the direct result of repetitive heavy lifting trauma. Dr. Madden opined Morgan was completely and totally disabled from blasting work or heavy manual labor and could not return to the type of work performed at the time of the injury. He assigned Morgan a whole person impairment rating of 13%.
Dr. Gregory T. Snider, M.D., also conducted an independent medical evaluation of Morgan. Dr. Snider opined he did not see any objective evidence of an anatomic change due to cumulative trauma or any other pathology and assigned him a 0% whole person impairment. In reaching this opinion, Dr. Snider noted there were no records to indicate Morgan was under treatment for neck, back or extremity pain at the time of his layoff, there was no documentation of anatomical findings in Morgan's neck and low back, his examination of Morgan was relatively benign and did not suggest any particular type of cumulative trauma. He noted Morgan was working in excess of full-time hours without apparent physical deficiencies or incapacity at the time of his layoff.
The ALJ determined Morgan failed to bear his burden of proof that he sustained or suffered a compensable injury or cumulative traumatic injuries to his back, both legs and knees. The ALJ relied on the medical report of Dr. Snider as being the most credible, compelling and persuasive evidence concerning Morgan's claim.
Morgan appealed, arguing the evidence as a whole was so overwhelming in his favor that no reasonable person could reach the same conclusion as the ALJ. The Board affirmed, determining Dr. Snider's opinion constituted substantial evidence in support of the ALJ's decision. We agree and affirm.
"It has long been the rule that the claimant bears the burden of proof and the risk of nonpersuasion before the fact-finder with regard to every element of a workers' compensation claim." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). The claimant must prove each element through substantial evidence, which is "defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable men." Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999). However, the claimant's presentation of substantial evidence will not necessarily require a favorable finding. Magic Coal Co., 19 S.W.3d at 96.
The ALJ is the exclusive finder of fact pursuant to KRS 342.285(1). The ALJ "has the sole 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). This discretion includes "decid[ing] whom and what to believe" and gives the ALJ the freedom to "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." Id.
The presence of evidence that would have supported a contrary decision is not an adequate basis for reversal on appeal, so long as the ALJ's decision was supported by substantial evidence. Whittaker, 998 S.W.2d at 481-82; Daniel v. Armco Steel Co., L.P., 913 S.W.2d 797, 798 (Ky.App. 1995).
Our standard of review of a decision of the Board "is limited to determining whether the decision was erroneous as a matter of law." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). We will only correct the Board 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 County 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, 687-88 (Ky. 1992)).
The decision reached by the ALJ and affirmed by the Board was supported by substantial evidence in the form of Dr. Snider's opinion that Morgan was not disabled. The ALJ did not err in choosing to rely on the opinion of one physician, where that opinion constituted substantial evidence, over conflicting opinions by other physicians. Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327, 329 (Ky.App. 2000). While we recognize there was evidence to support a contrary determination, the ALJ's and Board's decisions were not erroneous as a matter of law.
Accordingly, we affirm the Board and ALJ's decisions dismissing Morgan's cumulative trauma claim.
ALL CONCUR. BRIEF FOR APPELLANT: McKinnley Morgan
London, Kentucky
BRIEF FOR APPELLEE: Jeffrey Damron
Pikeville, Kentucky