Opinion
NO. 2018-CA-001430-WC
01-10-2020
WARRIOR COAL, LLC APPELLANT v. CHARLES MARTIN; HON. JEFF V. LAYSON, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Morgan J. Fitzhugh Lexington, Kentucky BRIEF FOR APPELLEE: McKinnley Morgan London, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-17-01688 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: ACREE, LAMBERT, AND SPALDING, JUDGES. LAMBERT, JUDGE: Warrior Coal, LLC, has petitioned this Court for review of the August 31, 2018, decision of the Workers' Compensation Board (the Board) affirming in part, vacating in part, and remanding the Administrative Law Judge's (ALJ's) April 27, 2018, opinion and order and the May 30, 2018, order on petition for reconsideration. We disagree with each of Warrior Coal's contentions except for its argument concerning the award of interest. Hence, we affirm in part, reverse in part, and remand for entry of an adjustment of the interest rate on the unpaid installments of the benefits awarded.
Judge Jonathan R. Spalding concurred in this opinion prior to the expiration of his term of office. Release of this opinion was delayed by administrative handling.
We begin by summarizing the facts and procedural history as set forth in the ALJ's decision and the Board's opinion: Martin began his employment as an underground coal miner in 1979. He was self-described as a "roving mechanic," with job duties that included repairing and maintaining equipment, the completion of which required carrying and lifting heavy objects, using sledge hammers, and the performance of other strenuous physical labor. Martin was an employee at Warrior Coal for approximately ten years until he was laid off in April 2016. After collecting unemployment for a few weeks, Martin accepted employment at a local Carhartt factory as a maintenance worker. He remained employed at Carhartt at the time of the formal hearing.
Martin filed his Form 101 on April 1, 2016, alleging work-related cumulative trauma injuries to his "neck, right knee, lower back, left shoulder, bilateral hips." He testified to multiple work-related incidents giving rise to these injuries, including repeatedly bumping his head on the mine roof and striking his head on a roof bolt. Martin attributed the pain in his shoulders to his specific work activities of carrying heavy equipment, changing tires that weighed more than 1,000 pounds, swinging sledge hammers, and use of tools such as ratchets, pry-bars, and come-alongs. The symptoms affecting his left shoulder, he claimed, were worse than those in his right shoulder. Martin now suffers from limited ability to reach up or lift with his left arm.
The medical evidence consisted of reports from four separate doctors. Dr. James Rushing's report was submitted in conjunction with the Form 101. Dr. Rushing diagnosed osteoarthritis of the cervical spine, lumbar spine, right knee, left shoulder, both hips, and both hands. He attributed Martin's conditions to cumulative trauma of work performed over the years. Dr. Rushing did not make any impairment assessments.
Dr. Stephen Autry submitted his report on behalf of Martin and made the following diagnoses: (1) aggravation of cervical spondylosis with radiculopathy; (2) aggravation of lumbar spondylosis; (3) aggravation of post-traumatic arthritis, both shoulders; (4) chondromalacia patella, both knees; and (5) anterior cruciate insufficiency and Baker's cyst, left knee. Dr. Autry considered these work-related conditions and assigned the following impairment ratings pursuant to the American Medical Association (AMA) Guides: (1) 7% impairment, right shoulder; (2) 9% impairment, left shoulder; (3) 2% impairment, lumbar spine; (4) 3% impairment, anterior cruciate tear, left knee; (5) 0% impairment, bilateral knee chondromalacia patella and Baker's cyst, left knee. Dr. Autry's total AMA rating for work-related injuries was 25%. It was his opinion that none of the injuries was pre-existing and active prior to employment.
Dr. Christopher Stephens submitted his medical examination of Martin on behalf of Warrior Coal. It was his opinion that, despite his "very significant occupational exposure," Martin merely suffered from degenerative changes in his cervical spine which were consistent with the aging process typical of Martin's age group.
Dr. J. Rick Lyon submitted his medical examination on behalf of Warrior Coal. Dr. Lyon diagnosed neck pain with a history of multiple specific work events and impingement syndrome/rotator cuff tendonitis of the left shoulder. He assessed a 5% impairment rating for Martin's neck (caused by four reported specific work events) and assessed no finding for the left shoulder other than to give his opinion that none of Martin's conditions were caused by work-related cumulative trauma.
The ALJ awarded Martin permanent partial disability (PPD) benefits and medical benefits for a work-related left shoulder injury. On appeal, the Board "affirm[ed] the ALJ's reliance upon Dr. Autry and his conclusion that Martin sustained a work-related cumulative trauma left shoulder injury"; affirmed the enhancement of Martin's award of income benefits pursuant to the triple multiplier found in Kentucky Revised Statutes (KRS) 342.730(1)(c)1.; vacated so much of the PPD award installments which were subjected to the tier-down provision of the 1994 version of KRS 342.730(4); and remanded that award for amendment pursuant to the 2018 version of that statute.
Warrior Coal does not request review of this aspect of the Board's ruling. --------
In its petition for review, Warrior Coal contends that, as a matter of law, Martin was not entitled to benefits for his left shoulder injury, that the Board erred in affirming the ALJ's application of the multiplier to the awarded benefits, and that the Board erred in affirming the ALJ's award of 12% interest for a portion of the past due PPD benefits.
Our standard of review in workers' compensation appeals is well-settled in the Commonwealth. "The function of further review of the [Board] in the Court of Appeals 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." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Kentucky law establishes that "[t]he claimant in a workman's compensation case has the burden of proof and the risk of persuading the board in his favor." Snawder v. Stice, 576 S.W.2d 276, 279 (Ky. App. 1979) (citations omitted). "When the decision of the fact-finder favors the person with the burden of proof, his only burden on appeal is to show that there was some evidence of substance to support the finding, meaning evidence which would permit a fact-finder to reasonably find as it did." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). However, "[i]f the board finds against a claimant who had the burden of proof and the risk of persuasion, the court upon review is confined to determining whether or not the total evidence was so strong as to compel a finding in claimant's favor." Snawder, 576 S.W.2d at 280 (citations omitted).
Because the finding of work-related cumulative trauma injury favored Martin, we must determine whether there was some evidence of substance to support the ALJ's findings.
Although a court cannot substitute its evaluation of the weight and credibility of the evidence for that of the Workmen's Compensation Board, nevertheless, the findings of fact of the board when it decides in favor of the claimant must be supported by substantial evidence. Substantial evidence means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men.Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971). And it has long been the law in Kentucky that "[t]he ALJ, as the finder of fact, and not the reviewing court, has the sole authority to determine the quality, character, and substance of the evidence." Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citing Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985)).
Warrior Coal insists that, because Martin's own testimony was inconsistent as it related to the causation of his injuries (particularly his deposition testimony versus his formal hearing testimony), and because the medical evidence was conflicting, the Board erred in affirming the ALJ's award of benefits for the left shoulder claim.
We disagree with this argument. The Board carefully considered the testimony and evidence in question before concluding that the ALJ acted within the role as fact-finder of weighing the quality, character, and substance of the testimony and evidence. Square D Company, supra. The Board properly determined that Martin's testimony, although at times inconsistent, as well as the credibility of Dr. Autry's diagnoses and impairment assessments, constituted "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men" to support the ALJ's finding of work-related cumulative trauma. Smyzer, supra. As the Board held, Warrior Coal failed in its burden of demonstrating that there was not sufficient evidence to support the ALJ's determination. Special Fund v. Francis, supra.
Warrior Coal next argues that the ALJ's application of the statutory triple multiplier (KRS 342.730 (1)(c)1.) was inappropriately affirmed by the Board. KRS 342.730(1)(c)1. reads, in pertinent part:
If, due to an injury, an employee does not retain the physical capacity to return to the type of work that the employee performed at the time of injury, the benefit for permanent partial disability shall be multiplied by three (3) times the amount otherwise determined under paragraph (b) of this subsection, but this provision shall not be construed so as to extend the duration of payments[.]Warrior Coal maintains that the evidence does not support the finding that Martin was physically unable to return to his pre-injury type of employment. Again, we disagree and affirm the Board's conclusion that Martin's testimony and Dr. Autry's report sufficiently satisfy the statutory prerequisite for application of the triple multiplier. "Such evidence permitted the ALJ to infer reasonably that [Martin] did not retain the physical capacity to return to" his pre-injury employment, thus making the application of the triple multiplier appropriate. Sidney Coal Co., Inc. v. Kirk, 364 S.W.3d 168, 170 (Ky. 2012).
Warrior Coal's final argument concerns the award of interest on unpaid installments of the award. The ALJ ordered that "[a]ll unpaid installments of compensation awarded herein shall carry interest at the rate of 12% per annum on all due and unpaid installments of such compensation through June 28, 2017, and 6% per annum on all due and unpaid installments of such compensation on or after June 29, 2017." The Board, in reviewing this issue, affirmed the interest awarded because the amendment to KRS 342.040(1) was effective June 29, 2017, and included no language that indicated a legislative intent that the amendment should have retroactive effect.
Warrior Coal, while not in disagreement with the Board that the statute is silent regarding retroactivity, points to the following non-codified language in Section 5 of House Bill 223, which states: "Section 2 of this Act shall apply to all workers' compensation orders entered or settlements approved on or after the effective date of this Act." Warrior Coal argues that such non-codified language makes it inappropriate for the ALJ and the Board to assess anything other than 6% interest for the entire award, not just the unpaid installments accruing after June 29, 2017.
The issue of the binding aspect of non-codified language was recently addressed by the Kentucky Supreme Court in Holcim v. Swinford, 581 S.W.3d 37, 44 (Ky. 2019). Like the amendment in Holcim (in that case to KRS 342.730(4)), this language is included in a non-codified section of the Act; and as was the case in Holcim, the General Assembly clearly stated its intention that the amendment to KRS 342.040 shall apply to awards entered after the statute's effective date, regardless of when the claim was filed. Considering this express language, we must conclude that the entirety of Martin's award of benefits was subject to the amended 6% interest rate. We thus reverse that aspect of the Board's opinion which awarded 12% interest.
Accordingly, the opinion of the Workers' Compensation Board affirming in part, vacating in part, and remanding the decisions of the Administrative Law Judge is affirmed in part, reversed in part, and remanded with direction that the ALJ enter an adjusted award of interest in accord with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: Morgan J. Fitzhugh
Lexington, Kentucky BRIEF FOR APPELLEE: McKinnley Morgan
London, Kentucky