WAL-MART STORES, INC. v. JUDY ARMSTRONG; HON. LLOYD EDENS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED:
September 7, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002637-WC
WAL-MART STORES, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-67828
v.
JUDY ARMSTRONG;
HON. LLOYD EDENS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI, AND TACKETT, JUDGES.
BARBER, JUDGE:
The Appellant, Wal-Mart Stores, Inc., (“Wal-
Mart”) contends that the Workers’ Compensation Board erred in
affirming an award of 16.25% permanent partial disability on the
ground that a surveillance tape was not given proper
consideration by the ALJ.
On May 27, 1999, the Appellee, Judy Armstrong
(“Armstrong”) filed a Form 101 alleging a right shoulder injury
on June 17, 1998 (fell from a skid) and a reinjury on October 1,
1998 (lifting a bag of potting soil) while working at Wal-Mart.
The parties stipulated that Armstrong had been paid temporary
total disability benefits from August 3, 1998 through August 17,
1998 and from September 22, 1998 to September 23, 1998; further,
Armstrong returned to work for Meijers’s on December 1, 1998.
The surveillance tape at the crux of this appeal documents
Armstrong’s activities on October 22 and 23, 1998.
In an Opinion rendered April 11, 2000, the ALJ found
that:
The Claimant has testified that she returned
to work . . .[for Meijer’s] on December 1,
1998 following her termination by the
Employer. The Employer produced a videotape
showing the Claimant engaged in various
activities on October 22 and October 23,
1998. The Claimant testified during the
hearing that she did assist her brother-inlaw briefly in a roofing project and that she
only carried four or five shingles at a time.
The videotape depicts these activities by the
Claimant and her estimate in the number of
shingles would appear to be correct.
Additionally, I noted that the shingles were
carried on the left shoulder. Her activities
while loading and unloading the van show her
reaching with her right arm and shoulder in
order to close the back of the van. This
activity would indicate that the Claimant is
able to reach above shoulder level but does
not show her engaged in lifting at that
level. I am persuaded by her testimony, the
records and opinions of Dr. Sweet, as well as
the opinion of Dr. Martin that the Claimant
has suffered a functional impairment as the
result of her work injury. I am further
persuaded by the opinion of Dr. Martin that
the Claimant has suffered a 13% functional
impairment. Pursuant to KRS 342.730(1)(b),
the functional impairment rating is
multiplied by a factor of 1.25, yielding a
permanent disability rating of 16.25%.
Wal-Mart filed a petition for reconsideration and
contended that the ALJ erred in relying upon Dr. Sweet because
Armstrong had not told Dr. Sweet about her roofing activities,
and Dr. Sweet had refused to view the surveillance videotape.
-2-
Wal-Mart also contended that the ALJ erred in relying upon Dr.
Martin because she had not seen the surveillance videotape and
her impairment rating was based solely upon Armstrong’s
“subjective demonstration of her right shoulder motion.”
By
order dated June 22, 2000, the ALJ denied the petition for
reconsideration because it “seeks to reargue the merits of the
case.”
Wal-Mart appealed to the Board which unanimously
affirmed in a detailed, 17-page opinion, rendered October 11,
2000:
Wal-Mart argues that the ALJ erred in relying
upon the medical opinions of Dr. Sweet and
Dr. Martin because neither of these experts
had an opportunity to review the surveillance
videotape. According to Wal-Mart, therefore,
their medical findings and conclusions failed
to meet the standard of substantial evidence.
Wal-Mart contends that only Dr. Goldman’s
conclusion should be afforded any probative
weight and therefore Armstrong’s claim must
be dismissed.
. . . .
Certainly we agree with Wal-Mart that the
record contains evidence which, if believed
by the ALJ, could have been fatal to
Armstrong’s recovery of benefits. However,
we do not believe that evidence must be
viewed as uncontroverted by the ALJ. The
fact that neither Dr. Sweet, nor Dr. Martin,
reviewed the surveillance tape merely goes to
the weight of their credibility, but not does
necessarily render their opinions and
conclusions unusable by the factfinder.
. . . .
We note that the ALJ did, in fact, consider
the videotape as part of his determination
that Armstrong remained able to return to the
type of work she was performing at the time
of her injury. The ALJ was also free, as a
matter of law, to adopt the impairment rating
-3-
rendered by Dr. Martin over the opinions of
Dr. Goldman . . . . [I]t is the ALJ’s
prerogative to select what evidence upon
which to rely, and when one of two reasonable
inferences may be drawn from the evidence,
the ALJ, as fact-finder, may choose.
Paramount Foods, Inc. v. Burkhardt, [Ky., 695
S.W.2d 418 (1985)] . . . .
We note with interest, that . . . Wal-Mart
cites . . . Osborne v. Pepsi-Cola, Ky., 816
S.W.2d 643 (1991) . . . [for the proposition]
that because the histories . . . received by
Dr. Sweet and Dr. Martin were impeached by
the surveillance tape, the ALJ must disregard
those experts’ opinions. We disagree.
Osborne v. Pepsi Cola, supra does not require
that medical testimony be disregarded if the
history upon which it is based is impeached.
On the contrary, it merely allows the ALJ to
disregard such testimony. Whether the ALJ
does so is up to him. While another
factfinder may well have relied upon the
testimony of Dr. Goldman and the surveillance
videotape to determine that Armstrong’s claim
was without merit, there is substantial
evidence supporting the finding made by this
ALJ.
On this appeal, Wal-Mart makes the same argument that
it made to the Board.
Wal-Mart contends that the ALJ should have
relied upon Dr. Goldman instead of Dr. Sweet and Dr. Martin in
light of the surveillance videotape.
Having reviewed the record,
including the surveillance videotape, we find no error.
Clearly,
the ALJ did consider the surveillance videotape as reflected by
his finding summarizing Armstrong’s activities.
The ALJ simply
did not consider the tape to be as persuasive as Wal-Mart would
have liked.
That was his prerogative.
We agree with the Board
that, although another ALJ may have decided the case differently,
the ALJ’s determination is supported by substantial evidence.
-4-
Wal-Mart also mentions that the ALJ erred in failing to
“consider the propriety of medical expenses” based upon
Armstrong’s failure to adhere to the physicians’ restrictions.
The unreasonable failure to follow medical advice is an
affirmative or special defense.
KRS 342.035(3); 803 KAR 25:010
§1(9) [now 803 KAR 25:010 §1(8)].
It does not appear that Wal-
Mart properly raised the issue as a special defense.
The
“propriety of medical expenses” was simply listed along with
other contested issues, such as notice, average weekly wage and
work-relatedness, in Wal-Mart’s “Employer’s Statement of Proposed
Stipulations, Notice of Contested Issues and Designation of
Evidence” filed November 1, 1999.
Moreover, Wal-Mart does not
explain how the Board erred nor does it provide any citation of
authority in support of its position.
Thus, there is nothing for
us to consider.
The Workers’ Compensation Board’s Opinion rendered
October 11, 2000, is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Scott C. Wilhoit
Clark, Ward & Cave
Louisville, Kentucky
Phillipe W. Rich
Howes & Rich
Louisville, Kentucky
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
