THE HON COMPANY/OWENSBORO PLANT v. RANDALL EUGENE WEDDING; SECRETARY OF LABOR CABINET; ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE; HON. WALTER W. TURNER, COMMISSIONER, DEPARTMENT OF WORKERS' CLAIMS; AND WORKERS' COMPENSATION BOARD
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RENDERED: June 22, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000153-WC
THE HON COMPANY/OWENSBORO PLANT
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-97-83508
RANDALL EUGENE WEDDING; SECRETARY OF LABOR CABINET;
ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND;
HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE;
HON. WALTER W. TURNER, COMMISSIONER,
DEPARTMENT OF WORKERS’ CLAIMS; AND
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JOHNSON AND KNOPF, JUDGES.
JOHNSON, JUDGE: The Hon Company has filed a petition for review
of the opinion rendered by the Workers’ Compensation Board on
December 17, 1999, which ruled that the Administrative Law
Judge’s award of total occupational disability to the claimant,
Randall Wedding, was supported by substantial evidence, and that
Wedding gave his employer due and timely notice of all injuries.
Having concluded that the Board has not “overlooked or
misconstrued controlling statutes or precedents, or committed an
error in assessing the evidence so flagrant as to cause gross
injustice[,]” we affirm.1
At the time of his injuries, Wedding was 47-years old
with a tenth grade education.
Prior to his employment with Hon’s
predecessor, Murphy Miller, Wedding worked as an auto glass
installer and a restaurant dishwasher.
He had no vocational
training nor any specialized skills.
Wedding began his employment with Miller in 1967 as a
sander.
He also held positions with Miller or Hon in sewing and
as a mill room worker prior to being assigned as an industrial
upholsterer. Wedding also trained new employees pursuant to his
designation as a Master Upholsterer.
His job tasks included
rapid, repetitive motions utilizing his upper body, pulling and
twisting fabrics and the use of a screwdriver and tack hammer.
The ALJ summarized Wedding’s medical history in her
opinion and award as follows:
In 1995, Wedding began to experience
pain in his upper extremities and
particularly complained of left elbow pain.
He first missed work on December 3, 1996, and
sought treatment from his family physician.
In 1997, he began treatment with Dr. James E.
Carothers, an orthopedic surgeon who
diagnosed overuse osteoarthritis of the left
elbow and bilateral ulnar neuropathies caused
by repetitive use of the upper extremities at
work. Dr. Carothers performed a diagnostic
arthroscopy on Wedding’s left elbow on
September 4, 1997 wherein he attempted to
remove osteophytes from the left elbow joint.
On October 30, 1997, he performed a second
left elbow surgery, an ulnohumeral
arthroplasty. According to Dr. Carothers,
Wedding reached maximum medical improvement
1
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
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as of February 20, 1998, and has a 22%
permanent functional impairment to the body
as a whole.
The records of Wedding’s family
physician, Dr. [Bill] Bryant, contain medical
referrals for upper extremity problems,
including a July 15, 1997 evaluation by Dr.
Gerald Sims. Dr. Sims diagnosed generalized
osteoarthritis in Wedding’s hands and wrists
“which are undoubtedly directly related to
his constant repetitive work as an
upholsterer.” That diagnosis was
communicated to Wedding on July 15, 1997 and
Dr. Sims advised Wedding that the problems
would progress with continuing repetitive
injuries at work.
Hon presented testimony from Dr. Larry
Laughlin, an orthopedic surgeon who performed
an independent examination on November 10,
1998 and diagnosed status post resection of
osteophytes in the left elbow and arousal of
pre-existing degenerative changes. Dr.
Laughlin assessed a 5% permanent functional
impairment to the body as a whole of which
half is attributable to arousal of preexisting degenerative changes.
Wedding returned to work for Hon after
the left upper extremity surgeries and
continued working at light duty until
February 5, 1998 when he testified that he
simply could not even perform the available
light duty jobs.
The ALJ heard evidence in this contested claim and
found that Wedding “gave notice as soon as practicable after the
symptoms other than his left elbow became apparent.”2
The ALJ
further found that “[t]he last 22 years of [Wedding’s] work life
were spent as an upholsterer and none of the medical experts who
testified herein would allow him to return to that type of
constant repetitive work[;]” and “[a]fter careful consideration
2
Hon has always acknowledged that Wedding gave due and
timely notice of the injury to his left elbow.
-3-
of the factors set forth in Osborne v. Johnson, Ky., 432 S.W.2d
800 (1968) and KRS 342.0011 as effective on the date of injury, .
. . that Wedding is 100% occupational[ly] disabled.”
Hon appealed to the Board on the issues of (1) “lack of
notice”, (2) “lack of substantial evidence to support a finding
of a total disability” and (3) “the applicability of KRS
342.730(4).”3
The Board affirmed the ALJ and noted that the ALJ
“possessed the discretion to believe testimony from Wedding that
he informed his bosses about the pain and debilitating condition
he was experiencing, not only with his left elbow but with both
wrists and eventually his right arm.
No contradictory evidence
was offered by Hon . . . to refute this evidence from Wedding in
connection with notice.”
The Board further held that “the ALJ
relied on substantial evidence in her determination that Wedding
suffers total occupational disability.”
This petition for review
followed.
Since the ALJ, as fact-finder, found in favor of
Wedding, who was the party with the burden of proof, the standard
of review on appeal is whether there is substantial evidence in
the record to support the ALJ’s findings.4
“Substantial evidence
means evidence of substance and relevant consequence having the
fitness to induce conviction in the minds of reasonable
3
Hon was successful on this issue concerning “tier
provisions in its appeal before the Board, but for some
reason it has raised the same issue in its brief before
Court. Since Wedding has not appealed his loss on this
will not address it.
4
down”
unknown
this
issue, we
Wolf Creek Collieries v. Crum, Ky.App., 673 S.W.2d 735, 736
(1984).
-4-
[people].”5
Western Baptist provides that “[t]he function of
further review of the [Workers’ Compensation Board] in the Court
of Appeals is to correct the Board only where the [] Court
perceives 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.”6
Hon first argues that the ALJ’s finding that Wedding
gave it timely notice of all of his injuries was not supported by
KRS7 342.185 sets forth the requirements
substantial evidence.
for giving notice of a work-related injury:
[N]o proceeding under this chapter for
compensation for an injury or death shall be
maintained unless a notice of the accident
shall have been given to the employer as soon
as practicable after the happening thereof. .
. .
The record in the case sub judice reveals that Wedding
testified before the ALJ that after his left elbow injury became
apparent he obtained medical treatment.
He further testified
that when he began to experience pain in both arms and wrists, he
obtained medical treatment, as well as advising Parvin Phillips,
Hon’s safety director, of the pain, but explained that Phillips
“didn’t really listen.”
It is well-established that “the finder of fact, and
not the reviewing court, has the authority to determine the
5
Smyzer v. B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367,
369 (1971).
6
Western Baptist, supra at 687-88.
7
Kentucky Revised Statutes.
-5-
quality, character and substance of the evidence,”8 and that the
finder of fact has “the right to believe part of the evidence and
disbelieve other parts of the evidence. . . .”9
KRS 342.185 does
not require a certain time frame in which notice must be given.
“What is ‘as soon as practicable’ must be determined by the ALJ
who considers the specific facts and circumstances on a case by
case basis.”10
We agree with the Board that substantial evidence
existed to support the ALJ’s finding that Wedding gave timely
notice to Hon of his injuries.
Hon also argues that the ALJ’s finding that Wedding
sustained a total occupational disability is not supported by
substantial evidence.
We agree with the Board’s sound reasoning
on this issue and adopt the following relevant discussion from
its opinion:
While both Hon and the Special Fund
argue that the evidence fails to support a
finding of total occupational disability, we
disagree. The ALJ was bound by the law as it
existed prior to December 12, 1996. At that
time, while medical evidence was probative on
the issue of occupational disability, it was
not determinative. At that time, it was the
ALJ’s function to look at the totality of
circumstances of Wedding’s situation and all
of the factors enumerated in KRS 342.0011(11)
and Osborne v. Johnson, Ky., 432 S.W.2d 800
(1968) in making a determination of
occupational disability. Seventh Street Road
Tobacco Warehouse v. Stillwell, Ky., 550
8
Paramount Foods v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985).
9
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15,
16 (1977).
10
Martin County Coal Corp. v. Preece, Ky.App., 924 S.W.2d
840, 841 (1996).
-6-
S.W.2d 469 (1976); Winn-Dixie Louisville,
Inc. v. Watson, Ky., 473 S.W.2d 148 (1971).
While a different Administrative Law
Judge might have reached a different
conclusion as to Wedding’s degree of
occupational disability, the law does not
mandate that a greater or lesser degree of
occupational disability be found. Miller’s
Lane Concrete, Inc. v. Dennis, Ky.App., 599
S.W.2d 464 (1980).
Even though the acting Arbitrator had
previously determined that Wedding was only
50% occupationally disabled, the moment that
a request for a de novo hearing was filed
before an Administrative Law Judge, the
benefit review determination issue by the
Arbitrator lost all legal import and ceased
to exist. See, KRS 342.275; 803 KAR 25:010,
§ 12; [citation omitted].
This Board may not substitute its
judgment for that of the ALJ as to questions
of fact. KRS 342.285(1). Moreover, where,
as here, the evidence is conflicting on the
issue of occupational disability, the ALJ is
given the sole responsibility by the
Legislature and the Courts to determine the
weight and credibility of the evidence, and
may reject or accept any evidence, including
evidence from the same witness. Caudill,
[supra]; Codell Constr. v. Dixon, Ky., 478
S.W.2d 703 (1972).
We hold that since the ALJ’s finding that Wedding was
totally occupationally disabled was supported by substantial
evidence, it was beyond the authority of the Board and it is
beyond the authority of this Court to alter this finding by the
ALJ.11
Accordingly, the opinion of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
11
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, RANDALL
EUGENE WEDDING:
W. Russell Duty
Owensboro, KY
Jeanie Owen Miller
Owensboro, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
David R. Allen
Frankfort, KY
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