Opinion
NO. 2013-CA-002145-WC
06-06-2014
DONALD WEBB APPELLANT v. MOUNTAIN CLAY COAL COMPANY/ JAMES RIVER COAL COMPANY; MARVIN S. HARMAN (CRNA); BRENT A. SCOTT, M.D.; DEBRA RYAN, PA-C; HON. ROBERT L. SWISHER, Administrative Law Judge; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Edmond Collett Asher, Kentucky BRIEF FOR APPELLEE MOUNTAIN CLAY COAL COMPANY/JAMES RIVER COAL COMPANY: Denise J. Davidson Hazard, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-05413
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND STUMBO, JUDGES. COMBS, JUDGE: Donald Webb appeals the opinion of the Workers' Compensation Board affirming the findings of the Administrative Law Judge (ALJ). After our review, we affirm.
Webb worked as a heavy-machine operator for Mountain Clay Coal Company, Inc., for a number of years. It is undisputed that in 1995, he experienced a cumulative work-related injury to his back. In 1997, an ALJ found that he had a ten-percent occupational disability and awarded him payment for all future reasonable and necessary medical treatment related to the injury.
In 2012, Webb went to Dr. Brett Scott for a sudden onset of left leg pain. Dr. Scott recommended surgery, namely an L3-L4 hemilaminectomy and an L3-L4 discectomy. Dr. Scott sought to have the surgery covered as part of Webb's workers' compensation award. However, the reviewing physicians determined that the surgery was not medically necessary or even related to treatment for Webb's injury of 1995. On January 7, 2013, Mountain Clay Coal filed a petition for the Department of Workers' Claims to reopen the 1997 case in order to contest the causal relationship of Webb's surgery to his 1995 injury. On June 21, 2013, the ALJ found that the surgery was unrelated to the original injury. Webb appealed to the Board, and it affirmed the ALJ on November 27, 2013. This appeal follows.
Kentucky Revised Statute[s] (KRS) 342.285 limits the Board's review of a decision of an ALJ. The Board is not permitted to substitute its judgment concerning the weight of the evidence on questions of fact. Instead, its review is confined to determining whether:
(a) The administrative law judge acted without or in excess of his powers;KRS 342.285(2). The ALJ's decision should not be disturbed if it was supported by substantial evidence in the record. Transportation Cabinet v. Poe, 69 S.W.3d 60, 62 (Ky. 2001). Likewise, when reviewing decisions of the Board, this Court may only reverse if the Board "has overlooked or construed 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).
(b) The order, decision, or award was procured by fraud;
(c) The order, decision, or award is not in conformity to the provisions of this chapter;
(d) The order, decision, or award is clearly erroneous on the basis of the reliable, probative, and material evidence contained in the whole record; or
(e) The order, decision, or award is arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Webb claims that the surgery was related to his 1995 injury. He describes the diagnostic radiation results and the surgery in great detail. However, he does not direct us to any evidence in the record supporting his claim. We did discover an affidavit in the record from Dr. Scott asserting that the injury was related to the left leg pain necessitating the surgery. The affidavit lacked any detail or explanation of the relationship between the 1995 injury and the current medical problem. It amounted to a conclusory statement.
The ALJ also examined reports of other physicians who did not agree that the surgery was related to the 1995 injury. The ALJ found the report of Dr. Mortara particularly persuasive because he compared diagnostic scans performed close in time to the injury with scans performed close in time to the surgery. Dr. Mortara concluded that there was not a correlation between them. The ALJ also considered that the original injury involved right leg pain whereas in 2012 - seventeen years later - Webb suffered with left leg pain. Additionally, the ALJ noted that the 1997 findings did not describe a condition consistent with the diagnostic findings of the 2012 injury.
Although Webb presented evidence which contradicted the ALJ's findings, it is the prerogative of the ALJ alone to decide which was more persuasive. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). In this case, that decision was supported by substantial evidence - reports of physicians and comparisons with the original findings from 1997. Thus, we must conclude that the Board did not err when it affirmed the ALJ.
We affirm the opinion of the Board.
ALL CONCUR. BRIEF FOR APPELLANT: Edmond Collett
Asher, Kentucky
BRIEF FOR APPELLEE
MOUNTAIN CLAY COAL
COMPANY/JAMES RIVER COAL
COMPANY:
Denise J. Davidson
Hazard, Kentucky