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