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Dotson v. Blackfield Coal Co.12/10/2004
AFFIRMING
Herman Dotson (Dotson) has petitioned for review of an opinion of the Workers' Compensation Board (Board) entered on March 24, 2004, which affirmed orders of the Chief Administrative Law Judge (CALJ) rendered on December 21, 2000, and November 14, 2003, overruling Dotson's fourth motion to reopen his injury award. We affirm.
On February 27, 1989, Dotson suffered a work-related low back injury while employed by Blackfield Coal Company (Blackfield). A settlement based on a 30% occupational disability was approved on March 7, 1990. Dotson later petitioned for reopening and on December 22, 1990, based on a psychiatric condition, he was awarded an increase to a 50% occupational disability. His second and third motions to reopen and motion for reconsideration of the latter were denied on July 31, 1996, November 9, 1999, and December 29, 1999, respectively.
On November 14, 2000, just over a year from the denial of the third motion to reopen, Dotson's fourth motion to reopen and the subject of this action was filed. In the motion Dotson alleged a worsening of his physical condition over the previous year and requested reopening to assess his present occupational disability. The only evidence in support of the motion was two letters to his counsel from Dr. Saroj B. Dubal, M.D., who had been treating Dotson since March 22, 2000, at the St. Joseph Hospital Advanced Pain Management Center.
In a letter dated October 6, 2000, Dr. Dubal expressed the opinion that Dotson's condition had worsened since the original injury in 1989, but the letter did not address the interval subsequent to the denial of Dotson's third motion to reopen. This was clarified in a second letter dated two weeks later wherein Dr. Dubal, based on his general knowledge of Dotson's disc and joint disease of the cervical and lumbar spine and the prognosis, stated that Dotson's disease was degenerative and non-curable and his condition would keep worsening as time went by. Dr. Dubal went on to indicate "I am willing to make the statement that it has been worsening since November 9, 1999, even though I haven't been taking care of the patient all that time. I only started taking care of him in March, 2000. . ."
Blackfield argued in response that Dotson's motion to reopen should be dismissed as it failed to satisfy the requirements of Kentucky Revised Statutes (KRS) 342.125(1)(d) in that Dr. Dubal's opinion was not supported by any documented objective medical evidence.
On December 21, 2000, the CALJ overruled Dotson's fourth motion to reopen, concluding that the motion failed to "make a prima facie case for worsening of condition/increase in occupational disability." The CALJ also indicated that she was not "persuaded by the report submitted by Dr. Dubal that there has been a change of plaintiff's condition since the Opinion and Order issued by Judge Roger Riggs on November 9, 1999 overruling the plaintiff's third motion to reopen." Dotson's petition for reconsideration was denied on November 14, 2003.
Dotson appealed to the Board and in an opinion entered March 24, 2004, the Board affirmed the CALJ's denial of Dotson's motion to reopen and dismissed the appeal. In finding that Dr. Dubal's letters did not make a prima facie showing of a worsening of impairment, the Board relied on the version of KRS 342.125 in effect at the time of the filing of the motion to reopen:
While the law in effect at the time of the injury governs a determination on the merits once a claim is reopened, the threshold determination of whether to reopen is governed by the law in effect at the time the motion to reopen is filed. Hence, even though his injury was susta
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