WEDCO DISTRICT HEALTH DEPARTMENT v. JERALDINE BARRON; HON. RON CHRISTOPHER, Director of SPECIAL FUND; HON. JAMES L. KERR, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
December 30, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000982-WC
WEDCO DISTRICT HEALTH DEPARTMENT
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-004767
v.
JERALDINE BARRON; HON. RON CHRISTOPHER,
Director of SPECIAL FUND; HON. JAMES L. KERR,
Administrative Law Judge; and WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, and KNOPF, Judges.
COMBS, JUDGE:
The appellant, Wedco District Health Department
(Wedco), appeals from the judgment of the Workers’ Compensation
Board (Board) which affirmed the opinion and order of the ALJ
finding Jeraldine Barron to have 78% occupational disability and
awarding her benefits accordingly.
Finding no error, we affirm
the Board’s decision.
Jeraldine Barron (Barron) was employed by Wedco as a
home health aid from 1987 to 1995.
As a home health aid, Barron
provided homebound patients with assistance in attending to their
health and hygienic needs.
In performing her duties, she would
have to lift and move many of the patients without assistance.
In addition to her job with Wedco, Barron would spend the night
with some of her elderly patients for additional income.
However, her job as a sitter did not entail any physical tasks;
she was only required to sit through the night with the patients.
In 1992, Barron began experiencing pain in her back and
legs.
She informed her immediate supervisor at Wedco that she
was having back pain and sought treatment with Dr. Bynum, her
family physician.
Over the next couple of years, Barron received
conservative medical treatments for her back problems and
continued to work.
However, on July 21, 1995, while at her home,
Barron began experiencing severe pain in her back and was taken
to the hospital emergency room.
Barron was diagnosed as having
severe stenosis at L3-4, L4-5, and L5-S1; a herniated disc on the
right at L5-S1; and a herniated disc on the left at L4-5.
On
July 31, 1995, she underwent extensive surgery on her back —
bilateral laminectomies and a right and left discectomy.
On
September 25, 1995, Dr. Gilbert found that Barron had made a
remarkable recovery and released her to return to work.
Upon her return to work, Barron experienced a sharp
pain in her back on October 2, 1995, as she was assisting a
patient into the shower.
report to work.
Despite the pain, she continued to
By the end of the week the pain in her back had
worsened and spread to her legs; Barron has not worked since
October 11, 1995.
Dr. Gilbert found that she had sustained
recurrent disc herniations at L4-5 and L5-S1 disc levels.
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Barron
has been reluctant to undergo additional surgery, and Dr. Gilbert
has recommended a thoracolumbar brace.
Based upon the problems with her back, Barron filed a
claim for workers’ compensation benefits.
On April 18, 1996, the
ALJ rendered his opinion and order, finding that Barron had a 78%
occupational disability.
However, he characterized 48% of her
disability as an active, pre-existing, and noncompensable
disability; he attributed the remaining 30% to the work-related
injury of October 2, 1995, and the arousal of pre-existing
degenerative conditions in her back.
The ALJ apportioned
liability for the compensable 30% of her disability equally
between the Special Fund and Wedco.
Barron filed a petition for
the ALJ to reconsider his decision, which the ALJ denied.
Barron appealed the ALJ's decision to the Board,
arguing that he erred in finding only 30% of her disability to be
compensable and that the evidence compelled a finding that she
was totally, occupationally disabled.
The Board entered its
opinion on September 19, 1997, affirming in part and reversing
and remanding in part the ALJ’s decision.
The Board found that:
“under the evidence submitted to the ALJ, KRS 342.0011(1),
defining injury under our Act, and the Court’s decision in
Haycraft v. Corhart Refactories Co., Ky., 544 S.W.2d 222 (1976),”
the ALJ should have made further findings as to whether there was
a causal connection between Barron’s work activities and her
noncompensable “pre-existing, active impairment.”
However, the
Board held that while the evidence supported a finding of
“significant functional impairment and vocational restrictions,”
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it did not compel a finding of total occupational disability.
Wedco did not appeal the Board’s opinion and order.
Upon remand, the ALJ rendered another opinion and order
on November 24, 1997, finding that Barron’s entire occupationally
disability (78%) was work related and thus compensable.
The ALJ
apportioned liability for Barron’s disability equally between the
Special Fund and the employer.
to the Board.
Wedco appealed the ALJ’s decision
On March 20, 1998, the Board affirmed the opinion
and order of the ALJ issued upon remand, and this appeal
followed.
Wedco first challenges the Board's opinion and order
rendered on September 19, 1997, affirming in part and reversing
and remanding in part the ALJ's decisions of April 18, 1996.
It
argues that the Board improperly substituted its judgment for
that of the ALJ as to the weight and credibility of the evidence.
Conversely, Barron contends that Wedco cannot raise this issue on
appeal since it failed to file an appeal from the Board’s order
of September 19, 1997.
“An order of the Board is appealable only if it
terminates the action itself, acts to decide the matter litigated
by the parties, or operates to determine some rights in such a
manner as to divest the Board of power.”
King, Ky.App.,940 S.W.2d 510, 511 (1997).
King Coal Company v.
In the case before us,
the Board remanded Barron’s claim to the ALJ for additional
findings of fact as to whether there was a causal connection
between Barron’s 40% pre-existing, noncompensable disability and
her work duties.
The Board’s order did not adjudicate the rights
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of the parties with regard to this issue; therefore, it was not
final and appealable within the meaning of CR 54.01 as it left
outstanding issues of fact to be determined by the ALJ upon
remand.
Wedco has not waived its right to appeal the issue of
whether the Board erred in reversing and remanding in part the
ALJ's initial decision by waiting until this stage; pursuant to
King Coal, supra, it acted wholly correctly.
KRS 342.285 permits either party in a workers'
compensation proceeding to appeal the award or order of the ALJ
to the Board for review.
In its review, the Board may not
substitute its judgment for the that of the ALJ as to the weight
of the evidence or as to questions of fact.
The Board is limited
to a determination of whether: (1) the ALJ acted within or in
excess of his or her powers; (2) the order, decision, or award
was procured by fraud; (3) the order, decision, or award does not
conform to the provisions of KRS Chapter 342; (4) the order,
decision, or award was clearly erroneous on the basis of the
reliable, probative, and material evidence contained in the whole
record; or (4) the order, decision, or award was arbitrary or
capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
KRS 342.285(2).
In the case before us, the Board properly remanded the
claim to the ALJ for reconsideration based upon the statutory and
case law regarding cumulative traumas. The ALJ had overlooked
controlling statutes and precedent and, therefore, his opinion
did not conform to the provision of the Workers' Compensation
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Act.
As the Board did not substitute its judgment for that of
the ALJ, we find no error.
Wedco next contends that the ALJ's new decision of
November 24, 1997, which found that Barron entire disability was
work-related, was not supported by substantial evidence and that
the Board erred in affirming that decision.
In Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d
685, 687-688 (1992), the Supreme Court set out our standard of
review on appeal as follows:
The function of further review of the [Board]
in the Court of Appeals is to correct the
Board only where the the [sic] Court
perceives the Board has overlooked or
misconstrued controlling statues or
precedent, or committed an error in assessing
the evidence so flagrant as to cause gross
injustice.
Furthermore, if the ALJ's findings of fact are supported by
substantial evidence, they may not be disturbed on appeal.
Evansville Printing Corporation v. Sugg, Ky. App., 817 S.W.2d.
455 (1991).
Upon remand, the ALJ determined that Barron's entire
occupational disability (78%) was work-related and, therefore,
compensable.
The medical testimony from Dr. Gilbert and Dr.
Primm supported the ALJ's conclusion that Barron's pre-existing
condition was aroused into disabling reality by the repetitive,
heavy lifting she was required to do as part of her work.
The
record also indicates that prior to 1992, Barron had never
experienced any problems with her back.
Thus, the Board did not
err in affirming the ALJ's opinion and order of November 24,
1997, as his findings were supported by substantial evidence.
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Nor can we say that the Board "overlooked or miscontrued
controlling statues or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice."
Western Baptist Hospital, supra at 688.
We affirm the opinion and order of the Board upholding
the ALJ's decision.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE JERALDINE
BARRON:
James R. Wagoner
Louisville, KY
Neil E. Duncliffe
Georgetown, KY
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel D. Zakem
Louisville, KY
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