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Sidney Coal Co.9/3/2004
t he did perform standardized testing on the plaintiff which revealed depression, but that he did not need the standardized testing to know that he was examining a patient who was dejected, depressed, demoralized and hopeless. Dr. Cowell went on to note that through his direct observations during his treatment of the plaintiff that he eventually came to realize that the plaintiff's anxiousness was due to post traumatic stress disorder by direct observation. As such, I find that the plaintiff's increase in occupational disability attributable to his onset of psychiatric symptoms is indeed shown by objective medical evidence. . . . Considering the plaintiff's age, education, and past work experience along with his physical and psychological restrictions and impairment, I am convinced that he has sustained a 75% occupational disability under the principles set forth in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968) and KRS 342.0011(11). The Administrative Law Judge further notes that this increase in occupational disability is a direct result of his inability to return to the work he was performing at the time of his injury as well as at the time of his opinion and award and is due to his psychiatric state, which is directly attributable to the injury sustained in the work related accident of August 13, 1996.
The fact-finder, the ALJ, rather than the reviewing court, has the sole discretion to determine the weight, credibility, quality, character, and substance of evidence and the inference to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419 (1985). The ALJ has the discretion to choose whom and what to believe. Addington Resources, Inc. v. Perkins, Ky. App., 947 S.W.2d 421, 422 (1997). The ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it came from the same witness or the same adversary party's total proof. Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, 16 (1977).
Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974). In instances where the medical evidence is conflicting, the sole authority to determine which witness to believe rests with the ALJ. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123, 124 (1977).
Where the party with the burden of proof is successful before the ALJ, the issue on appeal is whether substantial evidence supports the ALJ's conclusion. Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986). Substantial evidence is evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Smyzer v. B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367, 369 (1971).
The relevant provision of the reopening statute, KRS 342.125, allows a reopening upon a showing of:
Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order.
KRS 342.125(1)(d).
The findings of the ALJ in connection with whether there had been a worsening of Owens' condition as a result of his August 1996 work-related injury was supported by substantial evidence. The evidence presented by Dr. Cowell squarely addressed this issue. Dr. Cowell diagnosed Owens with major depressive disorder, single episode in partial remission, as well as post-traumatic stress disorder. Dr. Cowell's testimony further reflects that, sequentially, Owens' psychological problems did not become a disabling reality until February or Mar
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