Garrett Mining Co. v. Nye

• Decision Date: 23 October 2003
• Docket Number: No. 2002-SC-0455-WC.,2002-SC-0455-WC.
• Citation: 122 S.W.3d 513
• Parties: GARRETT MINING COMPANY, Appellant, v. Lloyd W. NYE; Robert L. Whittaker, Director of Special Fund; Hon. J. Kevin King, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: United States State Supreme Court — District of Kentucky

122 S.W.3d 513

GARRETT MINING COMPANY, Appellant, v. Lloyd W. NYE; Robert L. Whittaker, Director of Special Fund; Hon. J. Kevin King, Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 2002-SC-0455-WC.

Supreme Court of Kentucky.

October 23, 2003.

Rehearing Denied January 22, 2004.

A. Stuart Bennett, Lexington, Counsel for Appellant.

Leonard Joseph Stayton, Inez, Counsel for Appellee Lloyd W. Nye.

Glina R. Bryant-Lentz, Kentucky Labor Cabinet, Division of Special Fund, Frankfort, Counsel for Appellee Robert L. Whittaker.

Opinion of the Court by Justice COOPER.

In this workers' compensation case, Appellant Garrett Mining Company appeals from an opinion and award entered by an administrative law judge (ALJ) pursuant to a reopening of a previous award of benefits to Appellee Lloyd W. Nye, which increased the previous award of 50% permanent partial disability benefits to 100% total disability benefits. Both the Workers' Compensation Board and the Court of Appeals affirmed. We now affirm the ALJ's finding that Nye's disability had increased to 100% since the date of the initial award, but reverse the award insofar as it failed to exclude benefits payable for a previously determined 22% pre-existing active and, therefore, noncompensable disability.

Nye's date of birth is July 29, 1945. He has only a GED and no specialized training. Most of his work experience was in the coal mining industry, though he also worked briefly as a factory worker, assembly line worker, lathe operator, tile setter, and general laborer in the construction industry. His first work-related injury relevant to his present claim occurred on August 4, 1990, when he fell while crossing a tailpiece while in the employ of CBM Mining and sustained injuries to his back, shoulder and right knee. He subsequently filed claim number 90-30229, which he settled for a lump sum of $26,555.56, representing a 27.57% permanent partial disability of which 22.72% ($21,880.56) was paid by CBM Mining and 4.85% ($4,675.00) was paid by the Special Fund.

Nye entered the employ of Garrett Mining Company in 1993 as a "belt man." His duties included heavy lifting and shoveling. On April 1, 1994, he was injured in a work-related motor vehicle accident and suffered headaches and pain in his lower back and left leg. He did not miss any work following this accident. On August 13, 1994, he slipped and fell at work while carrying rollers weighing seventy to eighty pounds and injured his back, chest, left shoulder and arm. He has not returned to work since that date. He filed claim number 94-34477 against Garrett and the Special Fund for the injuries sustained in both 1994 accidents. On May 15, 1995, ALJ James L. Kerr consolidated claim number 90-30229 with claim number 94-34477.

On November 14, 1995, ALJ Kerr entered an opinion, award and order finding Nye to be 72% disabled. He specifically found that the April 1, 1994, accident did not cause an injury of appreciable proportions, thus did not attribute any portion of the disability to that event. However, applying former KRS 342.120¹ and Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971), he found that 25% of Nye's disability was attributable to the August 13, 1994, injury alone, 22% was attributable to a pre-existing active occupational disability,² and 25% was attributable to the arousal of a pre-existing dormant, nondisabling condition into disabling reality. Thus, 25% of the award was payable by Garrett, 25% was payable by the Special Fund, and 22% was noncompensable. No appeal was taken from ALJ Kerr's award and order.

On August 21, 2000, Nye filed a motion to reopen the award alleging an increase of disability. KRS 342.125(1)(d). In support, he attached, inter alia, medical reports prepared by Dr. James S. Powell, a neurosurgeon, and Dr. Michael McDonald, a urologist. The motion was granted and the claim was assigned to ALJ Kevin King for adjudication. After hearing the evidence on the motion, ALJ King entered an opinion, award and order on February 20, 2001, finding that Nye's occupational disability had increased from 72% to 100% and that 22% of the disability was noncompensable as due to the prior active disability previously found and adjudged by ALJ Kerr. ALJ King divided the remaining 78% compensable disability equally between Garrett and the Special Fund (as had ALJ Kerr) and awarded Nye benefits of $324.43 per week.

Nye subsequently filed a petition for reconsideration, KRS 342.281, requesting that the "whole man" theory be applied to his case so that he could be awarded benefits based on 100% disability. By order entered March 21, 2001, ALJ King granted the petition for reconsideration and amended both his findings of fact and the award, viz:

[U]nder the "whole man" theory, Nye is entitled to be fully compensated for all disability attributable solely to the 1994 injury. The Administrative Law Judge finds that the entirety of Nye's current disability is attributable to the 1994 injury; therefore, Garrett and the Special Fund shall pay full benefits to Nye.

He then increased the award from $324.43 per week to $415.94 per week. Garrett appealed.

I. SUFFICIENCY OF THE EVIDENCE.

Garrett first asserts that the evidence presented on reopening was insufficient to support an increase of the award. We disagree. ALJ King primarily relied on the testimony of Dr. Powell and the medical records of Dr. McDonald. Dr. Powell testified at both the original hearing and at the reopening hearing. He first saw Nye in 1995 on referral from another physician. He diagnosed cervical brachial plexopathy and possible cervical disc disease with radiculopathy. Although he did not assign an impairment rating at the time, he testified that he would have assigned a 15% rating if asked and would have restricted Nye to light work duty.

Dr. Powell next saw Nye on September 2, 1999, at which time Nye was complaining of worsening right arm symptoms and marked weakness. Dr. Powell recommended surgery, which was scheduled but then cancelled by Nye due to anxiety. Dr. Powell's diagnoses on reopening were cervical myelopathy with cauda equina syndrome and severe multilevel radiculopathy both caused by compression of the cervical spine secondary to the August 13, 1994, injury. He testified that Nye's present impairment per the AMA Guides to the Evaluation of Permanent Impairment was 60% for the cervical myelopathy with cauda equina syndrome, 35% for the severe multilevel radiculopathy, yielding a combined impairment rating of 74%. He further testified that whereas Nye had been able to perform light duty in 1995, his condition had deteriorated to the extent that he was presently incapable of any form of work. Dr. Powell recommended surgery to relieve the increased spinal cord compression but opined that, even after surgery, Nye's present physical disability would be permanent.

Nye also had developed a neurogenic bladder condition subsequent to the 1995 award that presently requires him to urinate as often as fifteen times per day. Dr. McDonald first saw Nye for treatment of his bladder complaints in July 1997. On January 22, 1998, he performed a cystoscopy and bilateral retrograde pyelogram that revealed concrete objective evidence of a neurogenic bladder condition that, according to Dr. McDonald, was related to an upper motor neuron lesion secondary to the 1994 "mine related injury." According to Dr. McDonald, this upper motor neuron lesion has caused a number of neuromuscular problems of both upper and lower extremities, as well as the bladder, that may progress further with time.

Garrett presented other medical evidence that disagreed with the opinions of Drs. Powell and McDonald. However, since Nye prevailed on his motion to reopen, the issue on appeal is whether there was substantial evidence of probative value to support ALJ King's conclusions. Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986); Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735, 736 (1984). Substantial evidence is defined as "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Smyzer v. B.F. Goodrich Chem. Co., Ky., 474 S.W.2d 367, 369 (1971). In ascertaining whether there has been a change in occupational disability, the ALJ is both authorized and obligated to analyze not only the evidence presented upon reopening but also that which was considered at the time of the original award. W.E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453, 455 (1946). As fact-finder, the ALJ has the authority to determine the quality, character, and substance of all the evidence. Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993); Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985). The ALJ is the sole judge of the weight and inferences to be drawn from the evidence. Miller v. East Ky. Beverage/Pepsico, Inc., Ky., 951 S.W.2d 329, 330 (1997); Luttrell v. Cardinal Aluminum Co., Ky.App., 909 S.W.2d 334, 336 (1995). He may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it was presented by the same witness or the same party's total proof. Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 98 (2000); Whittaker v. Rowland, Ky., 998 S.W.2d 479, 481 (1999). The mere fact that there was evidence contrary to the ALJ's decision on reopening is insufficient to support a reversal on appeal. Whittaker v. Rowland, supra, at 482. We conclude that the evidence was sufficient to support ALJ King's finding that Nye's present occupational disability is 100%.

Garrett also asserts that the motion to reopen was erroneously granted because there was no evidence of any change in Nye's occupational disability since the 1995 award, i.e., he was not working at the time of the initial award and he was not working when he filed his motion to reopen. For this proposition, Garrett relies on Gro-Green Chemical Co. v. Allen, Ky.App., 746 S.W.2d 69...