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.
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 (
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.