GREAT WESTERN COAL COMPANY v. JESSE SHELL; ROBERT L. WHITTAKER, Director of Special Fund; RONALD W. MAY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: SEPTEMBER 15, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-000166-WC
GREAT WESTERN COAL COMPANY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-93-10718
v.
JESSE SHELL;
ROBERT L. WHITTAKER,
Director of Special Fund;
RONALD W. MAY,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and JOHNSON, Judges.
HUDDLESTON, Judge:
Great Western Coal Company appeals from a
Workers’ Compensation Board decision affirming an Administrative
Law Judge’s order reopening, pursuant to Kentucky Revised Statute
(KRS)
342.732(1)(c),
Jesse
Shell’s
claim
for
coal
workers’
pneumoconiosis.
Shell, who was born on October 3, 1937, had over twenty
years of exposure to the hazards of coal workers’ pneumoconiosis.
His last exposure occurred on October 2, 1992.
On January 15,
1993,
coal
Shell
filed
a
claim
for
benefits
for
workers’
pneumoconiosis.
In his original claim, Shell presented evidence from Dr.
Emery Lane, who interpreted an x-ray from July 29, 1992.
Dr. Lane
found evidence of coal workers’ pneumoconiosis, category 2/1.
On
September 15, 1992, Dr. William Anderson evaluated Shell and
interpreted x-rays taken that day. Dr. Anderson concluded that the
x-rays
showed
a
positive
indication
of
coal
workers’
pneumoconiosis, categorizing the films as 1/1. Spirometric testing
produced a forced vital capacity (FVC) value of 60% of predicted
and a forced expiratory volume in one second (FEV1) result of 46%
of predicted. On December 16, 1992, Dr. Glen Baker evaluated Shell
and concluded that the claimant had category 1/1 coal workers’
pneumoconiosis. Spirometric testing produced an FVC value of 61.5%
of predicted and an FEV1 of 53.3% of predicted.
Great Western produced evidence from Dr. Abdul Dahhan,
who evaluated Shell on March 18, 1992. Based on his interpretation
of x-rays, Dr. Dahhan reported a negative result for coal workers’
pneumoconiosis.
Spirometric testing revealed an FVC of 81% of
predicted and an FEV1 of 65% of predicted.
Dr. Dahhan opined that
chronic bronchitis and a history of cigarette smoking were the
causes of Shell’s pulmonary impairment.
On March 5, 1993, Dr.
Bruce Broudy examined Shell and interpreted an x-ray from that day
as being negative for coal workers’ pneumoconiosis.
Spirometric
testing revealed an FVC of 81% of predicted and an FEV1 value of
72% of predicted.
Dr. Broudy believed that Shell’s pulmonary
-2-
impairment was due to his chronic obstructive airway disease caused
by cigarette smoking.
After considering the evidence, the ALJ awarded Shell a
tier 2 benefits for a period of 425 weeks commencing on October 2,
1992. The ALJ apportioned the benefits one-fourth to Great Western
and three-fourths to the Special Fund.
On June 30, 1998, Shell moved to reopen his claim on the
basis that his disease condition had worsened, resulting in a
greater vocational disability.
In support, Shell offered an x-ray
reading from Dr. Michael Alexander and a complete examination
report from Dr. B.T. Westerfield.
Dr. Alexander interpreted an x-
ray from August 10, 1998, as a Grade I film that showed q/t
opacities of a 1/1 profusion in all zones of both lungs.
On June
11, 1998, Dr. Westerfield examined Shell and interpreted an x-ray
from that date.
Based on the x-ray, Dr. Westerfield believed that
the x-ray taken on Grade I file showed q/t opacities of a 1/1
profusion in all zones of both lungs. Spirometric testing resulted
in high performance values for FVC of 81% of predicted and an FEV1
of
48%
of
predicted.
While
the
FVC
had
been
performed
satisfactorily, the FEV1 was outside of the 95% confidence levels.
Repeating the studies after bronchodilator, the values decreased
from an FVC of 67% of predicted an an FEV1 of 36% of predicted.
Both results were outside of the 95% confidence level.
Westerfield
diagnosed
Shell
as
suffering
from
coal
Dr.
workers’
pneumoconiosis and chronic obstructive pulmonary disease.
Dr.
Westerfield
the
opined
that
Shell’s
-3-
work
environment
caused
diseases and that, at least in part, the work environment also
caused the pulmonary inpairment.
Both parties also submitted reports and records from Dr.
Baker.
On February 10, 1998, Dr. Baker conducted spirometric
testing, which revealed a high performance value for FVC of 82% of
predicted and for FEV1 of 61% of predicted.
outside of the 95% confidence interval.
The FEV1 result was
Dr. Baker repeated the
testing on March 22, 1999, and the results were a high performance
value
for
FVC
predicted.
of
61%
of
predicted
and
for
FEV1
was
38%
of
Both results were outside of the 95% confidence level.
Great Western introduced evidence of Dr. Robert Powell’s
examination of Shell on September 5, 1998.
that
day,
the
results
were
a
Grade
From an x-ray taken on
I
film
showing
some
abnormalities, which Dr. Powell rated as consistent with category
0/1 occupational pneumoconiosis. Spirometric testing revealed high
performance values for FVC of 68% of predicted and for FEV1 of 40%
of predicted.
There existed a question from the shape of the flow
volume
as
loop
obstruction.
consistent
to
Dr.
with
whether
Powell
0/1
the
study
concluded
occupational
that
represented
the
chest
pneumoconiosis
and
a
fixed
x-ray
was
moderate
obstructive ventilatory defect with hyperinflation physiologically
consistent with pulmonary emphysema due to tobacco smoking but with
indentation in the trachea areas and with flattening of the flow
volume loop raising the possibility of a fixed airway obstruction.
Dr. Powell later testified that Shell made poor efforts
during the spirometric testing and was not overly cooperative.
Based on Dr. Baker’s and Dr. Dahhan’s spirometric studies and
-4-
assuming that the studies were valid, Dr. Powell opined that
Shell’s breathing had changed little since 1992.
In response to a
question regarding why spirometric test results may have lower
values at one test and higher at a later session, Dr. Powell stated
that illness, such as chronic bronchitis, will cause a varying FEV1
results.
Any part of Shell’s reduction in FVC or FEV1 that was
caused by the inhalation of coal dust or sand dust would not
produce a fluctuation in values.
Dr. Powell concluded that coal
dust exposure could be excluded as a physiological cause of any
significant obstructive airway disease.
On March 13, 1998, Dr. Arthur Lieber of the University of
Kentucky evaluated Shell.
Interpreting the x-ray taken that day,
Dr. Lieber found that it was a Grade I film showing p/p opacities
of a 1/0 profusion in the upper zones of both lungs and also in the
middle
zone
of
the
right
lung.
Dr.
N.K.
Burki
conducted
spirometric testing that revealed a high performance value for FVC
of 65% of predicted and for FEV1 of 40% of predicted.
The studies
were repeated post-bronchodilator and produced an FVC of 69% of
predicted and an FEV1 of 45% of predicted.
The studies indicated
an airway obstruction with no restrictive defect with a minimal
response to bronchodilator-reduced diffusing capacity and mild
hypoxemia.
Dr. Burki testified that he obtained valid spirometric
testing results and reiterated his prior interpretation that the
studies indicated an airway obstruction with no restricted defect.
According to Dr. Burki, Shell’s history of cigarette smoking, in
and
of
itself,
would
have
been
-5-
sufficient
to
produce
the
obstruction noted on pulmonary function testing. Cigarette smoking
produces an obstructive impairment.
Dr. Burki believed that the
obstructive impairment indicated in the spirometric testing was the
result of Shell’s history of cigarette smoking. An impairment that
results from coal workers’ pneumoconiosis is usually restrictive;
however, a person can have a mild large airway obstruction where an
FEV1 might be reduced slightly and the ratio of FEV1 to FVC would
not be expected to be reduced below 60% if it were primarily a
large airway obstruction due to coal workers’ pneumoconiosis.
Because Shell’s ratio was 49% before bronchodilator and 51% after,
Dr. Burki believed that cigarette smoking caused the obstructive
impairment.
Where coal workers’ pneumoconiosis might cause a mild
decrease in FEV1, it would be rare that it would drop as low as 75%
of predicted and even rarer for it to drop below 55%.
When
questioned regarding the different performance figures of Dr. Baker
in 1996 and 1998, Dr. Burki opined that the most likely cause of
the fluctuation was cigarette smoking, which was the biggest
contributor to his pulmonary dysfunction.
On cross-examination, Dr. Burki testified that Shell’s
employment
history
sufficiently
long
pneumoconiosis.
as
to
an
underground
develop
coal
miner
radiological
would
changes
be
of
Coal workers’ pneumoconiosis is a progressive
disease only if the exposure continues or if the patient develops
progressive massive fibrosis.
would
be
one
of
the
Dr. Burki stated that coal dust
factors
that
caused
Shell’s
pulmonary
impairment and that it could not totally be excluded, but that
smoking was the major factor.
If Shell were 15% impaired from his
-6-
breathing problems, less than 2% would be the result of coal dust
exposure.
The ALJ concluded that he could not address the issue of
the
existence
of
coal
workers’
pneumoconiosis
because
prior
proceedings had determined that Shell suffered from coal workers’
pneumoconiosis
category
1/1.
In
addition,
prior
proceedings
determined whether Shell’s impairment in 1992 and 1993 was the
result of exposure to coal dust.
he
could
address
whether
the
The ALJ, however, concluded that
worsening
of
Shell’s
pulmonary
condition was caused by coal workers’ pneumoconiosis, a history of
cigarette smoking or a combination of both.
In evaluating the evidence, the ALJ noted that Shell
filed the motion to reopen after the effective date of the 1996
amendments to the Workers’ Compensation Act.
Accordingly, it was
appropriate that a university evaluator examine Shell.
Because
Shell’s last exposure occurred before the effective date of the
1996 amendments, the ALJ did not give the university evaluator’s
conclusions
presumptive
weight.
The
ALJ
also
applied
the
provisions of KRS 342.732, which define the division lines between
different tiers of awards for coal workers’ pneumoconiosis as they
existed at the time of Shell’s last exposure.
Likewise, the ALJ
applied KRS 342.125, which describes the proof the claimant must
present to receive an increased award as it existed on the date of
Shell’s last exposure.
The ALJ found that there existed no persuasive evidence
to
support
a
claim
that
the
x-ray
manifestation
of
Shell’s
pneumoconiosis progressed beyond the category 1/1 that a prior ALJ
-7-
had already determined.
The ALJ noted that all of the physicians
reported high performance values on spirometric testing for FVC 55%
of predicted or greater.
The prior ALJ based the original award on
a reduction of FEV1 to 65% of predicted normal, which he found to
be due in part to Shell’s exposure to coal dust.
In the proceedings to reopen the claim, the ALJ noted
that
Dr.
Baker
was
the
only
physician
who
reported
performance value that exceeded 54% of predicted normal.
a
high
The ALJ
found that Dr. Baker utilized the wrong predicted normal in his
calculations, which the physician based on an examination that
preceded the motion to reopen by four months.
Correcting Dr.
Baker’s calculation, the ALJ found that Dr. Baker’s performance
figure was below 55% of predicted.
According to the ALJ, more
significant was the fact that all of the high performance figures
for FEV1 which were reported by all of the physicians were outside
the 95% confidence level, except for Dr. Burki.
Dr. Burki found
that his spirometric studies were valid and reported an FEV1 value
of less than 55% of predicted normal.
The ALJ found that Dr. Burki
could not exclude exposure to coal dust as a contributing cause of
the reduced FEV1 value.
Based on this evidence, the ALJ concluded
that Shell met his burden of proof to reopen the claim.
The ALJ
concluded that Shell was entitled to total permanent disability
benefits pursuant to KRS 342.732(1)(c).
The ALJ awarded Shell
$293.09 per week to continue as long as Shell is disabled, with the
employer paying the benefits for the first 245.7 weeks and the
-8-
Special Fund paying benefits thereafter, with appropriate credits
for payments already made.
Great
Western
appealed
to
the
Workers’
Compensation
Board, claiming, inter alia, that the ALJ abused his discretion in
finding that Dr. Burki’s testimony was sufficient to support an
increase in Shell’s pulmonary disability due to coal workers’
pneumoconiosis.
The Board, while acknowledging “a close call,”
concluded that ALJ properly exercised his discretion in weighing
the evidence and choosing to believe a more persuasive witness.
The Board noted that ALJ relied on the part of Dr. Burki’s evidence
which indicated at least a part of Shell’s increased pulmonary
impairment was due to an occupational cause.
The Board affirmed
the ALJ’s decision, and this appeal followed.
Great Western claims that the ALJ erred in finding that
Shell’s pulmonary impairment was attributable at least in part to
his coal mine work.
Great Western notes that Dr. Burki could not
exclude coal workers’ pneumoconiosis as a possible cause.
In making this argument, Great Western is attempting to
revisit the issue of the extent of progression of the disease.
However, as stated previously, Shell’s last exposure occurred in
1992.
For that reason, the issue of Shell’s exposure is precluded
-9-
from relitigation because the issue has already been litigated.1
Thus, we will not address this claim.
Great Western also avers that Shell failed to offer proof
to substantiate his claim for additional workers’ compensation
benefits. Great Western focuses on the testimony of Dr. Burki, and
it argues that the ALJ essentially shifted the burden to Great
Western in accepting Dr. Burki’s testimony.
The real issue — as correctly noted by the ALJ — is
whether
there
has
been
a
progression
of
Shell’s
respiratory
impairment. The parties presented extensive medical evidence as to
the
progression
contradictory.
of
the
When
pulmonary
parties
impairment,
present
and
conflicting
some
of
proof,
it
“the
administrative law judge as fact-finder, can believe part of the
evidence and disbelieve other parts, even if such proof comes from
the same witness or the same adversary party’s total proof.”2
While Great Western seeks to characterize the ALJ’s
decision to believe Dr. Burki’s testimony as a shifting of the
burden of proof, the ALJ simply chose to believe part of Dr.
Burki’s testimony and rejected other proof.
Dr. Burki could not
rule out cigarette smoking as a cause of the progression in the
1
See Godbey v. University Hosp. of Albert B. Chandler Med.
Ctr., Inc., Ky. App., 975 S.W.2d 104, 105 (1998) (“The doctrine of
res judicata prohibits the relitigation of matters which actually
were, or could have been, litigated to a conclusion in an earlier
action”).
2
Kentucky Harlan Coal Co. v. Holmes, Ky., 872 S.W.2d 446,
456 (1994) (citing Caudill v. Maloney’s Discount Stores, Ky., 560
S.W.2d 15 (1977)).
-10-
disease.
In addition, the other physicians’ reports supported
Shell’s claim.
In Western Baptist Hospital v. Kelly,3 the Supreme Court
stated that we should “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.”4
Because the
ALJ’s decision is supported by substantial evidence, the Board did
not err in affirming it.
The Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE JESSE
SHELL:
Denise M. Davidson
BARRET, HAYNES, MAY, CARTER &
ROARK, P.S.C.
Hazard, Kentucky
Ronald C. Cox
JOHNNIE L. TURNER, P.S.C.
Harlan, Kentucky
BRIEF FOR APPELLEE ROBERT L.
WHITTAKER:
David R. Allen
Frankfort, Kentucky
3
Ky., 827 S.W.2d 685 (1992).
4
Id. at 687.
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