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Napier v. Whitaker Coal Corp.12/18/2003
rmanently and totally disabled. Relying upon Commonwealth v. Workers' Compensation Board of Kentucky, Ky.App., 697 S.W.2d 540 (1985), he asserted that unless specific reasons were given for rejecting the evidence, the ALJ was required to rely upon the testimony and to conclude that he was totally disabled. He maintained, therefore, that the award that was entered at reopening must be set aside and replaced with an award of total disability. The petition did not request any specific findings concerning work that the claimant could perform or its availability in the local area. The petition was overruled summarily as being no more than a reargument of the merits.
The claimant asserts that Dr. Gilbert's testimony is uncontroverted and that the restrictions contained therein would prevent him from working. On that basis, he asserts that he met his burden of proving total disability at reopening and that the finding of a 60% disability rather than total disability was erroneous as a matter of law. He explains that he presented prima facie evidence of a worsening of condition, an increase in pain, and his inability to work; that the employer presented no conflicting evidence; and that there was nothing in the record to rebut the evidence that he offered. He maintains, therefore, that the ALJ was not authorized to reject the uncontroverted medical testimony that he had become totally disabled at reopening without stating a reasonable basis for doing so. Commonwealth v. Workers' Compensation Board of Kentucky, supra. In a second argument, the claimant asserts that the ALJ failed to make findings from the record concerning work that he remains capable of performing or of its availability in the local market. Absent evidence in the record that such employment is available, he maintains that a finding of total disability was compelled.
The claimant's injury occurred on July 24, 1994, and he settled the claim in November, 1995. His burden at reopening was to show that his actual occupational disability had increased under the Osborne v. Johnson, supra, standard as set forth in the pre-December 12, 1996 version of KRS 342.0011 (11). "Occupational disability" is a legal term of art that focuses on the extent to which an injured worker's earning capacity is affected by the injury. Factors such as the individual's age, education, work experience, medical condition, and restrictions; the availability of work in the area under normal employment conditions; and the prevailing wage rates for such employment all are relevant considerations. It is the function of the ALJ to translate evidence of a worker's functional impairment and restrictions into a finding of occupational disability. Seventh Street Road Tobacco Warehouse v. Stillwell, Ky., 550 S.W.2d 469 (1976).
KRS 342.285 provides that an ALJ's decision with respect to a question of fact is "conclusive and binding." Thus, the ALJ has the sole discretion to determine the quality, character, and substance of evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985). An 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. Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, 16 (1977). Although the parties are entitled to a sufficient explanation of the basis for the decision to permit meaningful appellate review, a detailed analysis of the facts or the law is unnecessary. Big Sandy Community Action Program v. Chaffins , Ky., 502 S.W.2d 526 (1973); Shields v. Pittsburgh & Midway Coal Mining Co. , Ky.App., 634 S.W.2d 440 (1982). Where the party with the burden of proof does not prevail before the ALJ, the ex
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