*/
OPINION RENDERED: [Date Rendered]

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  April 21, 2017

 

 

CLAIM NO. 201500655

 

 

CUMBERLAND MINE SERVICE INC.                   PETITIONER

 

 

 

VS.          APPEAL FROM HON. R. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

RICHARD ESTES

HON. R. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

RECHTER, Member.  Cumberland Mine Service Inc. (“Cumberland”) appeals from the November 4, 2016 Opinion, Award and Order and the December 5, 2016 Order rendered by Hon. R. Roland Case, Administrative Law Judge (“ALJ”).  Relying on the report of Dr. Sanjay Chavda, the ALJ determined Richard Estes (“Estes”) had proven the existence of coal workers’ pneumoconiosis (“CWP”).  On appeal, Cumberland argues Dr. Chavda’s opinion is insufficient to establish a causal relationship due to his failure to obtain a history of exposure to coal dust.  We affirm.

          Estes testified by deposition on July 1, 2015 and at the hearing held September 8, 2016.  Estes worked for Cumberland from 2001 through October 6, 2013, primarily as a welder.  Cumberland is in the business of building and repairing coal and mineral preparation plants.  Estes stated coal preparation plants were in operation 95% of the time he worked on them.  He testified he was never provided with a respirator and there was no dust control.  He stated he would be covered in dust within five minutes of beginning work at a coal preparation plant. 

          Dr. Chavda evaluated Estes at the request of the Department of Workers’ Claims.  Dr. Chavda read a July 7, 2016 x-ray as revealing category 1/1 pneumoconiosis.  Pulmonary function testing revealed moderate obstructive airway disease.  Dr. Chavda diagnosed simple CWP, obstructive airway disease, and emphysema.  Dr. Chavda’s report indicates he was provided with Estes’ Form 104.  Regarding pertinent employment history and exposure to coal dust in the severance and processing of coal, Dr. Chavda noted, “He worked as a welder in prep line.  He had to climb 13 flight [sic] of stairs and carry about 100 lbs.  He worked about 70 hours per week.”  Dr. Chavda stated the disease and any pulmonary impairment resulted from exposure to coal dust in the severance or processing of coal.   

          Estes submitted the x-ray report of Dr. Glen R. Baker, who read an x-ray taken January 10, 2015 as revealing Category 1/0 CWP.

          Cumberland submitted the December 21, 2015 report of Dr. Christopher Meyer who read the January 10, 2015 x-ray taken by Dr. Baker as negative for CWP with no small nodular, small irregular or large opacities. 

          The ALJ found Dr. Chavda’s report most persuasive and determined Estes suffers from CWP Category 1/1 with FEV1 and FVC functions below 80% but greater than 55%, entitling him to a 25% disability rating pursuant to KRS 342.732(1)(b)1.  Cumberland filed a petition for reconsideration raising the same arguments it makes on appeal and requesting additional findings.  The ALJ issued an order on December 5, 2016 overruling Cumberland’s petition for reconsideration, finding as follows:

     Initially it is noted that on the BRC Order the plaintiff and defendant-employer stipulated thirteen (13) years of exposure and that the plaintiff was last exposed while in the employment of the defendant-employer.  Under contested issues exposure was not listed.  Additionally, at the hearing the Administrative Law Judge specifically asked, “With that addition, are there other additions, subtractions or corrections to make to the BRC Order.”  Both the plaintiff and the defendant replied nothing.  Quite simply, the issue of exposure was not preserved.  Additionally, the plaintiff testified the defendant had no dust control and he would work while the plant was running and it was bad and within five (5) minutes he was covered in dust.  This testimony is sufficient to establish exposure even if the defendant had preserved the issue.  For the above reasons, the Petition for Reconsideration is OVERRULED. 

 

          On appeal, Cumberland argues Dr. Chavda’s failure to obtain any history of exposure to coal dust from Estes is a fatal flaw.  For this reason, his opinion does not constitute substantial evidence and is insufficient to support the award.  With the exclusion of Dr. Chavda’s report, Cumberland asserts the remaining x-ray reports are insufficient to support an award of benefits because they do not address the cause of the condition.  

          As the claimant in a workers’ compensation proceeding, Estes had the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because he was successful in that burden, the question on appeal is whether there was substantial evidence to support the ALJ’s decision.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons.  Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).    

          Contrary to Cumberland’s assertions, Dr. Chavda did receive a history of thirteen years of exposure to coal dust in Estes’ employment when he was provided with the Form 104.  In the Form 104, Estes indicated his employment with Cumberland exposed him to substances causing occupational disease, which he identified as coal dust.  Estes indicated his other employment did not involve such exposure. 

          The Department of Workers’ Claims Form 108 in section C directs the physicians to review the Form 104 with the claimant and to “list pertinent employment history, including history of exposure to coal dust in the severance and processing of coal.”  Dr. Chavda listed only the employment with Cumberland as pertinent.  The ALJ could reasonably conclude Dr. Chavda was indicating the employment with Cumberland involved exposure to coal dust.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979) (the ALJ may draw any reasonable inference from the evidence).  Dr. Chavda opined, within reasonable medical probability, that Estes’ disease and pulmonary impairment is the result of exposure to coal dust in the severance or processing of coal.  While Cumberland may desire a more definitive statement regarding the exposure, Dr. Chavda’s response is sufficient to indicate he reviewed the employment history with Estes and determined work in the prep line was pertinent history of exposure to coal dust in the severance or processing of coal.

          Dr. Chavda’s opinion constitutes the requisite proof to support the ALJ’s finding that Estes has established the presence of CWP.  The ALJ acted within his discretion to determine which evidence to rely upon, and it cannot be said the ALJ’s conclusions are so unreasonable as to compel a different result.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          Accordingly, the November 4, 2016 Opinion, Award and Order and the December 5, 2016 Order rendered by Hon. R. Roland Case, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

 

 

 

 

 

COUNSEL FOR PETITIONER:

 

HON GUILLERMO CARLOS

444 W SECOND ST

LEXINGTON, KY 40507

 

COUNSEL FOR RESPONDENT:

 

HON MCKINNLEY MORGAN

921 S MAIN ST

LONDON, KY 40741

 

ADMINISTRATIVE LAW JUDGE:

 

HON R. ROLAND CASE

PREVENTION PARK

657 CHAMBERLIN AVE

FRANKFORT, KY 40601