READY MIX CONCRETE v. ROGER SIZEMORE; ROGER RIGGS, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000452-WC
READY MIX CONCRETE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-59587
v.
ROGER SIZEMORE; ROGER RIGGS,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, McANULTY, and SCHRODER, Judges.
COMBS, JUDGE:
Ready Mix Concrete petitions for review of a
January 30, 2002, opinion of the Workers’ Compensation Board,
which affirmed the decision of the Administrative Law Judge (the
ALJ) awarding permanent total occupational disability benefits to
the appellee, Roger Sizemore.
Ready Mix raises three arguments:
(1) there are no objective medical findings to bring Sizemore’s
injury within the meaning of KRS1 342.0011(1); (2) the evidence
is insufficient to support the ALJ’s finding of total disability;
and (3) the Board erred in assuming that the ALJ used the correct
1
Kentucky Revised Statutes.
standard in finding Sizemore to be totally disabled.
After a
review of the record and the applicable authorities, we affirm.
Sizemore worked as a truck driver for twenty-seven
years prior to suffering an injury to his back while working for
Ready Mix.
Sizemore testified that on November 18, 2000, he felt
a sharp pain in his lower back while adjusting the seat of his
truck and that later in the day, he “locked up in pain” while
positioning the tarp on the truck.
He has not been able to
perform any significant work since the injury.
He filed a claim
for workers’ compensation benefits in January, 2001.
At the hearing conducted on July 3, 2001, the contested
issues were identified as:
the extent and duration of Sizemore’s
disability; whether he had sustained an injury as defined by KRS
342.0011(1); and whether the disability rating assigned by
Sizemore’s physician, Dr. Harry Weiser, was in accordance with
the AMA guides.
In his decision awarding benefits to Sizemore based on
a total disability, the ALJ found as follows:
[Sizemore] has a long history of hard
physical labor prior to his work related
injury. He even continued working for
several weeks after experiencing the injury
until he was no longer able to continue.
[Sizemore] is a credible witness who has
convincingly testified that he is not
physically capable of returning to the type
of work which he was doing prior to the work
related injury. Mr. Sizemore has only a 6th
grade education and has done nothing during
his work career other than heavy manual labor
on the farm or driving a commercial truck.
Dr. Weiser’s testimony is convincing that Mr.
Sizemore had experienced a physical
impairment as a result of his work injury and
that he cannot return to any form of
significant manual labor.
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When one considers Mr. Sizemore’s age, work
experience, and limited education along with
the fact that he has no transferable job
skills, it is determined that based upon the
credible testimony of Mr. Sizemore along with
the opinion of Dr. Weiser, the plaintiff is
100% occupationally disabled under the
guidelines of Osborne v. Johnson, Ky., 432
S.W.2d 800 (1968).
Ready Mix filed a petition for reconsideration and
argued that the ALJ failed to address the issue of whether
Sizemore sustained an injury as defined by KRS 342.0011(1); that
is, one involving a harmful change in the human organism
evidenced by objective medical findings.
It further contended
that the abnormalities reported by Dr. Weiser were “false and
incorrect reports of what the diagnostic study interpretations
described.”
Sizemore responded that Dr. Weiser had reviewed and
interpreted that actual studies performed on his back, including
the x-rays and MRI files; he contended that the doctor’s opinion
based on those tests provided objective evidence of his workrelated injury.
The ALJ denied the petition of Ready Mix,
stating as follows:
Dr. Weiser has stated that the February 24,
2001 MRI reflected herniated discs at T6-7
and collapsed, herniated disc at L5-S1 with
bilateral lateral recessed stenosis at that
level. He went on to assign a 13% impairment
due to the work related injury.
The Board affirmed the ALJ.
This appeal followed.
The first two arguments of Ready Mix concern the ALJ’s
reliance on Dr. Weiser’s report in making an award for total
occupational disability benefits.
Ready Mix argues that the
report provided subjective rather than objective evidence of
injury as required by KRS 342.0011(1).
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It also contends that
there is insufficient evidence to support an award for total
disability.
Repeatedly in its brief, Ready Mix cites to the fact
that three doctors failed to find that Sizemore had suffered any
significant injury.
Ready Mix contends that the Board erred in
affirming the ALJ’s decision, and that contention is well
summarized as follows:
The ALJ’s award must be vacated since it
is not supported by objective medical
evidence. In fact, the objective evidence of
this case indisputably shows that Sizemore
does not have an injury under K.R.S.
342.0011(1). As the Board recognized, three
out of four of the physicians involved in
this case reviewed the exact same evidence as
Dr. Weiser. However, only Dr. Weiser found
that this evidence was indicative of a
compensable injury. Since Dr. Weiser’s
report is based on subjective evidence, the
award of total disability benefits must be
reversed.
We disagree with Ready Mix’s argument that the Board
erred in its assessment of the evidence upon which the ALJ
relied.
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
The following, well-reasoned portion of the
Board’s opinion thoroughly addresses the issue of the sufficiency
of the evidence supporting the ALJ’s decision — including his
reliance on Dr. Weiser’s report.
We, therefore, adopt it as our
own:
Ready Mix first argues there is no
substantial evidence to support a finding
that Sizemore suffered an injury as defined
by KRS 342.0011(1). In making this argument,
Ready Mix expresses consternation over the
decision of the ALJ to rely on the report of
Dr. Weiser as opposed to the reports of Drs.
Tutt and Sheridan. Ready Mix believes it is
inconceivable that an MRI scan interpreted as
normal by the treating physician could be
interpreted by a different physician as
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showing a herniated disc. Ready Mix
characterizes this as a “discrepancy
whether Dr. Weiser actually read the
spine MRI dated February 24, 2001.”
Ready Mix argues the ALJ has not set
the basic facts necessary to support
ultimate conclusion.
of
thoracic
Thus,
forth
his
While it is understandable that Ready
Mix is perplexed that the ALJ relied on Dr.
Weiser when three other doctors reviewed the
same files and found no abnormalities, this
is simply not the standard of review. As the
Supreme Court clearly pointed out in McCloud
v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46
(1974), “ probative value of evidence is not
determined by the number of doctors who
testify.” Unfortunately for Ready Mix, Dr.
Weiser stated without equivocation that the
February 24, 2001 MRI demonstrated a
herniated disc. While it is abundantly clear
the remaining physicians of record found no
such abnormality, this “discrepancy in the
proof” goes to weight of the evidence, not
its admissibility. Ready Mix’s argument, no
matter how it is characterized, represents
nothing more than a disagreement with how the
ALJ approached conflicting evidence within
the record. The authority to judge weight,
credibility, substance and inference to be
drawn from the evidence lies exclusively
within the prerogative of the ALJ. Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418
(1985).
In this claim, Ready Mix, the party
without the burden of proof, was unsuccessful
before the ALJ and the question on appeal is
whether the findings of the ALJ were
supported by substantial evidence. Smyzer v.
B. R. Goodrich Chemical Co., Ky., 474 S.W.2d
367 (1971). Ready Mix can only succeed in
its argument if Dr. Weiser’s report is deemed
inadmissible. We have searched the record
and found not a single objection registered
as to the introduction of Dr. Weiser’s proof.
More importantly, that report constitutes
evidence of substance and relevant
consequences that have the fitness the [sic]
induce conviction in the minds of reasonable
persons. Union Underwear v. Scearce, Ky.,
896 S.W.2d 7 (1995). As we have so often
stated, it is not the function of this Board,
nor it is [sic] within our authority, to
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substitute our opinion for that of the fact
finder, even if we were to believe another
fact finder may have found differently. KRS
342.285(1). On this issue, we affirm the
ALJ.
Ready Mix secondly argues Sizemore has
not suffered an injury within the definition
contained in KRS 342.0011(1), arguing there
are no objective medical findings upon which
the ALJ could have based an award. This
argument, of course, pyramids Ready Mix’s
first argument and, per force, must fail.
In Gibbs v. Premiere Scale Co., Ky., 50
S.W.3d 754 (2001), the Supreme Court
determined that a diagnosis of a harmful
change may comply with the requirements of
KRS 342.0011(1) and (33) if based upon
symptoms of a harmful change that are
documented by means of direct observation
and/or testing applying objective or
standardized methods. The Court further
determined that although a harmful change
must be documented by objective medical
findings, there was no requirement that
causation be proved by such findings. See
also Staples v. Konvelski, Ky., 56 S.W.3d 412
(2001).
Here, Dr. Weiser, after physical
examination, noted decreased range of motion
secondary to pain and positive pain to
palpation at facets L4-L5. While technically
it is correct that those findings may in
reality be more subjective than objective,
those findings were supported, at least in
Dr. Weiser’s opinion, by diagnostic testing
that demonstrated herniated discs at two
levels. The bald statement by Ready Mix that
Dr. Weiser’s report is riddled with
inaccuracies and misrepresentations does not
supply a basis for a determination that Dr.
Weiser’s report is without probative value.
Last, Ready Mix argues that the Board erred in assuming
that the ALJ used the appropriate legal standard in making his
award.
As it did before the Board, Ready Mix contends that in
assigning liability to Ready Mix for a “huge workers’
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compensation award,” the ALJ mentioned only the definition of
total disability contained in Osborne v. Johnson, Ky., 432 S.W.2d
800 (1968).
The Board declined to remand the matter to the ALJ,
stating that the proper standard for total disability as enacted
in 1996 was “well-known” and that to conclude that the ALJ failed
to use the proper standard “would ascribe an inexcusable level of
inattention to the fact finder.”
Again, we find no error in the Board’s review.
As our
Supreme Court has emphasized, some — if not most — of the
principles in Osborne “remain viable” in determining a workers’
degree of disability.
See, Ira A. Watson Department Store v.
Hamilton, Ky., 34 S.W.3d 48, 50 (2000).
Ready Mix argues that
the claimant’s ability to find work in the locale where he
resides is no longer pertinent.
However, the ALJ did not make
any findings with respect to Sizemore’s ability to work in any
specific geographic area.
See, infra at 3.
Rather, the ALJ
considered the type of work that Sizemore had previously
performed, his age, his educational background, his physical
restrictions, and his physical condition as contained in Dr.
Weiser’s medical report and as testified to by Sizemore.
The ALJ
determined that Sizemore had suffered a total occupational
disability.
These factors remain pertinent even after the 1996
legislative changes with respect to the concept of occupational
disability.
Id.
We have already determined that Sizemore met his burden
of proof with regard to the nature of his work-related injury and
the extent of his disability.
While Ready Mix is correct in
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citing the existence of other expert testimony in conflict with
that of Dr. Weiser, the employer has not demonstrated that the
ALJ’s finding of permanent, total disability is “so unreasonable
that it must be viewed as erroneous as a matter of law.”
McNutt
Construction/First General Services v. Scott, Ky., 40 S.W.3d 854,
861 (2001).
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE ROGER
SIZEMORE:
W. Barry Lewis
Hazard, Kentucky
McKinnley Morgan
Hyden, Kentucky
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