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Sidney Coal Co.9/3/2004
eased occupational disability.
On January 28, 2004, the Board entered an opinion affirming the ALJ's decision. This petition for review followed.
The ALJ determined that Owens had experienced a worsening of his condition since the original opinion and award because of the onset of depression and post-traumatic stress disorder brought about by the original work-related physical injuries. Sidney argues that the ALJ's decision was erroneous because there was no evidence of permanent impairment from a psychological standpoint.
Certain basic principles exist in a reopening of a workers' compensation claim. First, the burden of proof falls upon the party seeking reopening. Griffith v. Blair, Ky., 430 S.W.2d 337, 339 (1968). Here, that party is Owens. Consequently, pursuant to KRS 342.125, it was Owens' burden to prove that the effects of the August 13, 1996 accident had worsened since ALJ Smith's opinion of August 24, 1999, so as to cause an increase in vocational disability. In ascertaining whether there has been a change, it was the ALJ's obligation to analyze not only the evidence presented at the time of reopening, but also the evidence presented previously. W.E. Caldwell Co. v. Borders, 301 Ky. 843, 193 S.W.2d 453, 455 (1946). Here, the comparison is to Owens' condition at the time of the August 1999 decision with his condition at the time of reopening.
In support of his opinion and award the ALJ made the following relevant findings of fact and conclusions of law:
The final decision to be made by the Administrative Law Judge is the issue of whether the plaintiff has an increase in occupational disability attributable to his work related injury as shown by objective medical evidence. In this case, the plaintiff complains that his symptoms from his low back and leg have increased.
However, a review of the medical evidence does not really show anything more than a change in the plaintiff's complaints in regards to his level of pain from these physical injuries. Although Dr. Rapier and Dr. Craig have offered their opinions that the plaintiff is now totally disabled, I am more convinced by the opinions of Dr. Primm and Dr. Wagner that there is no objective evidence of a physical change. However, I am firmly convinced that the plaintiff had indeed developed major depression and post traumatic stress disorder since his opinion and award in 1999. A review of Dr. Cowell's testimony is very convincing that the symptoms probably began in the summer or fall of 1999 and manifested their disabling reality in the episode of February and March of 2001. In fact, the post-traumatic stress disorder was undiagnosed until February 14, 2002. As for the plaintiff's physical injuries, he was able to return to employment in the coal mining industry, but Dr. Cowell has clearly set forth that the plaintiff's post-traumatic stress disorder will not allow him to return to that work environment. As such, the plaintiff has shown an increase in his occupational disability in that his manifested psychological condition will no longer allow him to perform work which he was able to perform at the time of his opinion and award. The Administrative Law Judge further finds that there is objective evidence that the plaintiff has developed this condition.
In Staples, Inc. v. Konvelski, Ky., 56 S.W.3d 412 (2001), the Court noted that where a psychiatrist recorded events and observations and rendered a diagnosis and further testified that he had not performed standardized testing as such tests were only used in cases which were absolutely bewildering, objective evidence existed to award disability benefits. This is similar to the testimony of Dr. Cowell who indicated tha
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