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June 29, 2018 201601731

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED: June 29, 2018

 

 

CLAIM NO. 201601731

 

 

JIMMY GIBSON                                   PETITIONER

 

 

 

VS.           APPEAL FROM HON. ROLAND CASE,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

APPALACHIAN MINING & RECLAMATION LLC

and HON. ROLAND CASE,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

                       * * * * * *

 

 

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

 

STIVERS, Member. Jimmy Gibson (“Gibson”) seeks review of the March 6, 2018, Opinion and Order of Hon. Roland Case, Administrative Law Judge (“ALJ”) dismissing his claim for coal workers’ pneumoconiosis (“CWP”) against Appalachian Mining & Reclamation LLC (“Appalachian”). Gibson did not file a petition for reconsideration.

          On appeal, Gibson challenges the ALJ’s decision on three grounds. First, Gibson asserts a constitutional challenge by asserting as follows:

The interactions between KRS 342.732, KRS 342.316, and KRS 342.730 do not allow recovery for Mr. Gibson’s medically determinable occupational disease, and KRS 342.732 places a higher burden in proving pneumoconiosis. This violates Mr. Gibson’s constitutional rights.

          Next, Gibson asserts the evidence shows the ALJ’s dismissal is unreasonable. Gibson notes the x-ray reading of Dr. Matthew Vuskovich proved the existence of CWP. Gibson asserts the breathing test performed by Dr. Fred Rosenblum established he suffers from work-related chronic obstructive pulmonary disease (“COPD”) and had an 8% permanent impairment rating due to the COPD. Gibson posits the ALJ seemingly gave presumptive weight to some opinions of Dr. Rosenblum but not all of his opinions. Specifically, Gibson complains the ALJ did not adopt Dr. Rosenblum’s opinion he contracted work-related COPD resulting in an 8% impairment rating. Gibson takes issue with the following statement by the ALJ in support of his dismissal of Gibson’s claim:

The ALJ points out that KRS 342.732 specifically requires a positive x-ray. The ALJ would note that if this claim is allowed then the plaintiff’s benefits would be greater for having a negative x-ray than if the x-ray had been positive for pneumoconiosis. The ALJ finds the plaintiff must establish a disease other than pneumoconiosis to prevail under KRS 342.316.

          Gibson contends the ALJ did not discuss “the credibility of Dr. Rosenblum’s statement.” Gibson argues the ALJ erroneously failed to provide a reason for not affording all of Dr. Rosenblum’s opinions presumptive weight.

          Finally, Gibson asserts the ALJ’s statement that he did not have a positive x-ray is a patent error. In Gibson’s view, had the ALJ not relied upon this erroneous statement, he would have been awarded benefits for his work-related COPD based on the 8% impairment rating. Gibson seeks income and medical benefits for his work-related COPD based on an 8% impairment rating. In the alternative, Gibson asserts the claim should be remanded to the ALJ with instructions “for the ALJ to decide benefits in this case under KRS 342.730 for Mr. Gibson’s eight (8%) impairment rating.”

BACKGROUND

          On August 5, 2015, Gibson filed his Form 102-OD alleging he became affected with CWP arising out of the course and scope of his employment. Gibson alleged he had “[b]reathed free and finely ground coal, silica and rock dust over a long period of years in the workplace.” Gibson attached the radiographic interpretation of Dr. Vuskovich, who read the x-ray as revealing Category 1/1 with no abnormalities.

          On October 16, 2017, Appalachian filed the October 10, 2017, report of Dr. Bruce Broudy who concluded the soft tissues, body structures, cardiac silhouette, and mediastinal structures are unremarkable except for some soft tissue overlay from obesity. Gibson seemed to have large breast shadows. The lung zones were clear except for a few scattered calcifications. Dr. Broudy characterized the x-ray as negative and assessed a category zero according to the ILO Classification System for pneumoconiosis. He saw no large opacities or pleural disease.

          Pursuant to KRS 342.315 and/or KRS 342.316.(3)(b)4.b., Dr. Rosenblum conducted a medical evaluation of Gibson. Dr. Rosenblum’s Form 108-CWP dated December 7, 2017, reveals Gibson’s chest x-ray was unremarkable. Gibson had a pre-bronchodilator FVC function of 83% of predicted value and a FEV1 of 70% of predicted value. Gibson had a post-bronchodilator FVC function of 97% of predicted value and FEV1 function of 93% of predicted value. The radiology report concerning the chest x-ray read by Dr. James Reed revealed no evidence of CWP. Dr. Reed found no parenchyma or pleural abnormalities consistent with pneumoconiosis.[1]

          However, Dr. Rosenblum found Gibson suffered from work-related COPD opining as follows:

Mr. Gibson has evidence of mild COPD as noted by his symptoms, his prebronchodilator PFTs as well as his lung volumes. He gives a history of exposure to coal dust and other dust over many years of working [sic] coal industry. He does not have a smoking history nor a previous history of asthma thus the COPD can be attributed to his years of working in the coal industry. His whole person impairment is estimated at 8% based on the most recent AMA guidelines. (emphasis ours).

          Dr. Rosenblum concluded Gibson’s COPD was the result of exposure to coal dust in the severance or processing of coal. Gibson’s pulmonary impairment was the result of exposure to coal dust in the severance or processing of coal.

          Appalachian deposed Dr. Rosenblum on January 10, 2018. He testified Gibson underwent a full battery of tests. Dr. Reed interpreted the x-ray for the ILO form. Dr. Rosenblum understood he was also to determine whether working in coal dust caused pulmonary disease, not limited to CWP. As a result, he diagnosed mild COPD based on the “pre-bronchodilator spirometry, his full lung volume, and [Gibson’s] history.” Dr. Rosenblum explained COPD is a combination of chronic bronchitis and emphysema. In response to whether the lung function test indicated a diagnosis of asthma, he stated, “whether you call it COPD or asthma is somewhat subjective.” With hyperinflation and x-ray changes, he would designate it as COPD. He provided the definition for asthma and acknowledged literature exists indicating asthma is caused by coal mine dust. Dr. Rosenblum indicated he could find references which state there is an overlap between asthma and COPD. As to the difference between asthma and COPD, Dr. Rosenblum explained:

Q: Well, asthma is essentially defined as reversible obstructive lung disease.

     Is that correct?

A: Yes, but it doesn’t leave you hyperinflated. And it doesn’t leave you with emphysema on the chest x-ray, unless it becomes chronic, in which case it is chronic obstructive lung disease from asthma.

          Dr. Rosenblum explained Gibson’s persistent symptoms and hyperinflation is more consistent with COPD. Significantly, the post-bronchodilator testing did not reveal COPD. The test results revealed normal lung functions. He noted the mild COPD was somewhat reversible. Dr. Rosenblum acknowledged there was no evidence of interstitial lung disease. Dr. Rosenblum testified Gibson did not have CWP, but has COPD resulting from exposure to coal dust and the severance or processing of coal.

          Gibson testified at the January 29, 2018, Hearing. His testimony consisted of providing the years he worked in the coal industry and the employer for whom he last worked. Gibson also testified regarding his job duties and the extent of his exposure to coal dust. Gibson also testified regarding his breathing problems.

ALJ’S DECISION

          After discussing the evidence, the ALJ provided the following analysis in concluding Gibson did not sustain CWP and his claim must be dismissed:

    

     Benefits per KRS 342.732: The report of Dr. Rosenblum is entitled to presumptive weight pursuant to KRS 342.315(2) since it was performed by a University Evaluator, the Administrative Law Judge finds the report of Dr. Rosenblum to be the most persuasive.

     Dr. Rosenblum was independently selected by the Commissioner of the Department of Workers’ Claims for his evaluation. Dr. Vuskovich was selected by the plaintiff and Dr. Broudy was selected by the defendant.

     The Administrative Law Judge has considered all of the evidence in accordance with Magic Coal v. Fox, 19 SW 3d 88 (Ky. 2000). The Administrative Law Judge chooses to rely on and is persuaded by the opinion of Dr. Rosenblum who was independently selected by the Commissioner of the Department of Workers’ Claims and concluded the plaintiff does not suffer from coal workers’ pneumoconiosis based on x-ray evidence read as unremarkable with no parenchymal or pleural abnormalities.

     KRS 342.732 is very specific that it governs benefits for occupational pneumoconiosis resulting from exposure to coal dust. The ALJ has carefully reviewed the report and deposition of Dr. Rosenblum. The ALJ points out that KRS 342.732 specifically requires a positive x-ray. The ALJ would note that if this claim is allowed then the plaintiff’s benefits would be greater for having a negative x-ray than if the x-ray had been positive for pneumoconiosis. The ALJ finds the plaintiff must establish a disease other than pneumoconiosis to prevail under KRS 342.316. Pulmonary function studies performed by Dr. Rosenblum indicate pre-bronchodilator FVC function of 83% of predicted value and a FEV1 of 70% predicted value with post-bronchodilator FVC function of 97% of predicted value and FEV1 function of 93% of predicted value.

     Therefore, based on the unremarkable chest x-ray reading and the fact that the plaintiff’s pre and post-bronchodilator FVC functions were above 80% as found by Dr. Rosenblum, the ALJ finds the plaintiff has not carried his burden of establishing the presence of x-ray evidence of coal workers’ pneumoconiosis or any disease other than pneumoconiosis related to coal dust exposure. Therefore, the plaintiff’s claim herein must be dismissed.

ANALYSIS

          As the claimant in a workers’ compensation proceeding, Gibson 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). Since Gibson was unsuccessful in that burden, the question on appeal is whether the evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). “Compelling evidence” is defined as evidence that is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985). The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence that they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979). The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

          As an initial matter, we note Gibson did not file a petition for reconsideration. Pursuant to KRS 342.285, in the absence of a petition for reconsideration, on questions of fact, the Board is limited to a determination of whether there is substantial evidence contained in the record to support the ALJ’s conclusion. Stated otherwise, inadequate, incomplete, or even inaccurate fact-finding on the part of an ALJ will not justify reversal or remand if there is substantial evidence in the record that supports the ultimate conclusion. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985). Thus, our sole task on appeal is to determine whether substantial evidence supports the ALJ’s decision.

          The ALJ provided presumptive weight to Dr. Rosenblum’s opinion that Gibson did not suffer from CWP based on the x-rays and test results. However, it appears the ALJ refused to accept Dr. Rosenblum’s diagnosis of work-related COPD and the 8% impairment rating since the x-ray read by Dr. Reed was negative for CWP. The ALJ did not explain why he refused to accept Dr. Rosenblum’s diagnosis of work-related COPD. However, we conclude this shortcoming is immaterial in light of the pleadings in this claim.

          After receiving the report of Dr. Rosenblum, Gibson did not seek to amend his Form 102 to allege work-related COPD. Rather, he continued to insist he had CWP as a result of his employment with Appalachian. In his brief to the ALJ, Gibson did not contend, in reliance upon Dr. Rosenblum’s report, that he was entitled to an award for work-related COPD. Rather, based on the x-ray interpretation of Dr. Vuskovich and the diagnostic test results from Dr. Rosenblum, he argued as follows:

The ALJ also has discretion, in accordance with Magic Coal v. Fox, 19 S.W.3d 88 (Ky. 2000), to grant Jimmy benefits based upon the x-ray interpretation of Dr. Vuskovich and the diagnostic test results from Dr. Rosenblum. These results statutorily entitle Jimmy to the category one ‘retaining [sic] incentive benefits’ under KRS 342.732(a)1. He clearly has spirometric values between 80% and 100% with an x-ray profusion reading of 1/1. However, Jimmy’s FEV1 spirometric readings was 70%. This number pushes Jimmy into the 25% disability category when combined with Dr. Vuskovich’s x-ray interpretation. (emphasis not ours).

          Gibson asserted that, an award based on a 25% disability rating under KRS 342.732 would be more prudent than awarding him retraining incentive benefits especially when considering his advanced age. Thus, Gibson requested the ALJ “issue an opinion and order awarding him a twenty-five (25%) occupational disability award pursuant to KRS 342.732 and/or any other benefit to which he is entitled.” Notably, Gibson does not contend on appeal a claim for work-related COPD was tried by consent.

          Further, the fact Appalachian deposed Dr. Rosenblum does not demonstrate the issue of whether Gibson contracted work-related COPD was tried by consent. This is highlighted by the fact Gibson only argued to the ALJ that he was entitled to an award based on CWP.

          Moreover, even if the ALJ had accepted Dr. Rosenblum’s diagnosis of work-related COPD, he could not award income and medical benefits for work-related COPD. The impairment rating assessed by Dr. Rosenblum is not in accordance with the statute, as it was not based upon the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”). KRS 342.0011(35) and (37) declare that all impairment ratings upon which awards are based must be in accordance with the 5th Edition of the AMA Guides.

          Dr. Rosenblum assessed his impairment rating based on the most recent edition of the AMA Guides which is not the 5th Edition of the AMA Guides. As pointed out by Appalachian, the 8% impairment rating was not assessed pursuant to the 5th Edition of the AMA Guides, but in all likelihood was assessed based upon the 6th Edition of the AMA Guides. Chapter 5 entitled “Respiratory System” of the 5th Edition of the AMA Guides contains Table 5.12 which provides the impairment classifications for respiratory disorders. Class 1 merits a 0% impairment rating. Class 2 merits a 10 to 25% impairment rating. Consequently, Chapter 5, Table 5.12 of the 5th Edition of the AMA Guides does not permit Dr. Rosenblum’s 8% impairment rating. In light of Dr. Rosenblum’s deposition testimony regarding asthma, we note Table 5.10 “Impairment Rating for Asthma” delineates a 0% impairment for a Class 1 impairment and a 10% to 25% rating for a Class 2 impairment. Thus, an 8% impairment rating for asthma would not stand scrutiny. Pursuant to either table, the minimum impairment rating beyond zero Dr. Rosenblum could have assessed pursuant to the AMA Guides was 10%. Consequently, the ALJ was prohibited from relying upon the impairment rating assessed by Dr. Rosenblum.

          Further, Dr. Rosenblum’s report does not support an award of medical benefits for COPD, as he did not state Gibson needed future treatment of the work-related COPD. Therefore, because Gibson did not assert a claim for work-related COPD and only asserted a claim for CWP; substantial evidence supports the ALJ’s determination; and, the record does not compel a contrary result, the ALJ’s decision must be affirmed.

          Accordingly, the March 6, 2018, Opinion and Order is AFFIRMED.

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON CASEY SMITH

HON GLENN M HAMMOND

P O BOX 1109

PIKEVILLE KY 41502

COUNSEL FOR RESPONDENT:

HON JEFFREY R SOUKUP

175 E MAIN ST STE 500

LEXINGTON KY 40507

ADMINISTRATIVE LAW JUDGE:

HON ROLAND CASE

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1] The radiology report and x-ray interpretation of Dr. Reed were attached to Dr. Rosenblum’s Form 108.