WILLIAM WILLIAMS V. SPRAY TECH, INC; SPECIAL FUND; RONALD W. MAY, Administrative Law Judge; BOARD
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RENDERED: July 2, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002302-WC
WILLIAM WILLIAMS
V.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-92-16964
SPRAY TECH, INC; SPECIAL
FUND; RONALD W. MAY,
Administrative Law Judge;
and WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION AFFIRMING
* * * * * * * *
BEFORE:
GUDGEL, Chief Judge; GUIDUGLI and SCHRODER, Judges.
GUDGEL, CHIEF JUDGE:
This matter is before us on a petition for
review of an opinion of the Workers’ Compensation Board (board)
which affirmed an opinion and order of an Administrative Law
Judge (ALJ) denying appellant’s motion to reopen an injury claim.
On appeal appellant, William Williams, contends that the ALJ
erred by denying his motion because he met his burden to prove
that his increased occupational disability was related to his
prior work injury.
We disagree.
Hence, we affirm.
Appellant sustained a work-related injury to his back
on March 1, 1992.
In December 1992, appellant settled with his
employer, appellee Spray Tech, Inc., for a lump sum representing
benefits for a fifteen percent permanent partial disability.
Subsequently, in July 1993, appellant accepted a payment of
$5,000 as a settlement of any claim for future medical expenses
stemming from the March 1992 injury.
In March 1997, appellant filed two motions requesting
reinstatement of TTD benefits in which he alleged that his
condition had deteriorated and that he underwent back surgery in
January 1997.
These motions were denied by an arbitrator in
April 1997 because appellant failed to establish a causal
connection between the January 1997 surgery and the 1992
work-related injury.
Appellant’s motion to reconsider was
granted and was treated as a motion to reopen.
Another
arbitrator rendered a benefit determination on September 25,
1997, also finding that appellant had failed to establish that
the worsening of his condition was attributable to his 1992
work-related injury.
Appellant sought a de novo review of the arbitrator’s
decision by an ALJ.
After additional proof was adduced, the ALJ
denied appellant’s motion to reopen.
The opinion and order of
the ALJ contained a thorough narrative of the evidence adduced
and concluded with the following finding of fact:
Having considered the entirety of the
evidence, not only as summarized here, but as
contained in the record, the evidence fails
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to persuade the ALJ of a causal relationship
between the work related injury of March 1,
1992 and the surgery performed January 14,
1997. The ALJ is persuaded that plaintiff’s
present physical condition and resulting
disability is now significantly greater than
when the settlement of his case was approved
on December 21, 1992 but the evidence is
equally persuasive that the worsening is the
result of the surgery of January 14, 1997 and
not from the effects of the injury of March
1, 1992.
On appeal, the board affirmed the ALJ’s decision.
This petition
for review followed.
Appellant contends that the ALJ erred by denying his
motion to reopen because he established that his increased
disability resulted from his original work-related injury.
We
disagree.
A claimant seeking an increase in compensation pursuant
to KRS 342.125 must prove not only that an increase in disability
in fact exists but also that the increase results from the
work-related injury or disease subject to the motion to reopen.
Peabody Coal Co. v. Gossett, Ky., 819 S.W.2d 33 (1991).
If a
claimant fails to sustain this burden before the ALJ, the
claimant must demonstrate on appeal to the board that the
evidence before the ALJ was so overwhelming as to compel a
different result.
(1986).
Special Fund v. Francis, Ky., 708 S.W.2d 641
Moreover, evidence is compelling if it is “so
overwhelming that no reasonable person could reach the conclusion
of the [ALJ].”
224, 226 (1985).
REO Mechanical v. Barnes, Ky. App., 691 S.W.2d
Further, on appeal to this court a claimant
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must demonstrate that “the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice.”
Western Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685, 687-88
(1992).
Appellant asserts that he is entitled to an increase in
compensation based upon the ALJ’s finding that the January 1997
surgery resulted in an increase in disability.
Specifically, he
claims that his increased disability caused by the surgery is
compensable because he underwent the surgery in reliance upon his
treating physician’s advice that it was necessitated by his prior
work injury.
He cites Elizabethtown Sportswear v. Stice, Ky.
App., 720 S.W.2d 732, 734 (1986), in which this court held that
“aggravation of the primary injury by necessary medical or
surgical treatment is compensable.”
Contrary to appellant’s argument, Stice does not
control the outcome of the instant case since it is clearly
distinguishable.
Indeed, the evidence in Stice was
uncontradicted that the medical treatment which ultimately caused
Mrs. Stice’s death was necessary for the treatment of her
original work-related injury.
Here, however, evidence was adduced from Dr. Matt
Vuskovich that appellant’s 1992 work-related injury did not
result in any permanent impairment; that surgery was not
indicated either in 1992, subsequent to appellant’s injury, or in
1997; and that appellant’s 1997 surgery was unrelated to the 1992
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work-related injury.
Moreover, Dr. Robert Goodman noted that
appellant had two normal MRI examinations and two normal
neurological examinations subsequent to the 1992 work-related
injury, and expressed the opinion that the 1997 surgery was not
caused by the prior work-related injury.
Clearly, the evidence before the ALJ does not compel a
finding that appellant’s increased disability was caused by the
work-related injury.
Moreover, there is substantial evidence to
support the ALJ’s finding that appellant’s January 1997 surgery
was not causally related to the 1992 work-related injury.
It
follows that the board did not flagrantly err in its assessment
of the evidence so as to cause a gross injustice.
Moreover, it
is equally clear that the board did not misconstrue Stice.
Hence, the board’s opinion may not be disturbed.
Western Baptist
Hosp. v. Kelly, supra.
The board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR SPRAY TECH, INC.:
William Lawrence Roberts
Pikeville, KY
Jeffrey D. Damron
Prestonsburg, KY
BRIEF FOR SPECIAL FUND:
Joel D. Zakem
Louisville, KY
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