Under Kentucky Workers Compensation Law "the ALJ has the sole discretion to determine the quality character, and substance of the evidence ... and may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness for the same party's total proof." What this means in practice is that an ALJ, like any other factfinder, has wide discretion to make factual findings based on the proof presented. This point is well illustrated in the recent decision by the Kentucky Supreme Court in Martin County Coal Company v. Goble.
William Goble hurt his back in August 2009 and treatment since has not yielded much improvement. In addition to his back pain, Goble complained of depression and anxiety arising from his back injury, although he had not received any treatment for these psychological complaints. An ALJ concluded that Goble had a 12% permanent impairment rating: 7% related to his low back injury and 5% related to his psychological injury.
The proof presented regarding Goble's psychological injury was somewhat mixed.A psychologist, Eric Johnson, noted Goble's lack of treatment, stated that he "cannot estimate permanent impairment at this time" but also stated that Goble suffered from a current impairment of 5%, which could improve with further improvements to his back. The defense offered a report from Dr. Douglas Ruth, which the ALJ regarded as "flimsy."
In affirming the 5% impairment attributed to Goble's psychological injury, the Supreme Court's explanation illustrates the discretion and latitude that an ALJ may properly exercise as a factfinder:
It is true that Dr. Johnson stated he could not estimate what Goble's permanent impairment was at the time of his evaluation and that any impairment should improve with physical and psychological treatment. However, he also stated that any improvement in Goble's psychological condition was dependent, in part, on a reduction of pain and an increase in functional activities. Goble testified his pain had not improved significantly; his functional abilities have not increased significantly; and he had not gotten any psychological/psychiatric treatment. Therefore, the ALJ could reasonably infer that Goble's psychological condition had stabilized and that Goble had reached maximum medical improvement.
The Court's unanimous opinion was authored by Justice Michelle Keller.
Robert L. Abell
www.RobertAbellLaw.com
