KEVIN JAMES STOCTON v. J. L. FRENCH; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 9, 2005; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002637-WC
KEVIN JAMES STOCTON
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-96811
v.
J. L. FRENCH; HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND VANMETER, JUDGES; MILLER, SENIOR JUDGE. 1
VANMETER, JUDGE:
Kevin James Stocton petitions for the review
of an opinion of the Workers' Compensation Board (Board)
affirming the decision of an Administrative Law Judge (ALJ) to
dismiss his claim in its entirety, after finding that Stocton’s
injury was not work related.
For the reasons stated hereafter,
we affirm.
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
Stocton began working as a machine operator in J.L.
French’s (French’s) automotive parts manufacturing facility in
October 2001.
Stocton initially operated a “C dial” machine,
which required him to load and unload five to six pound parts,
but then he was transferred to a position where he tested oil
pans for air leaks, which required the lifting of ten to twelve
pound parts.
In approximately January 2002, Stocton was moved
from the B oil pan line to the A line, which required him to
perform the exact same tasks, except with his right hand instead
of his left.
Stocton testified that after he worked on the A
line for approximately two weeks, he reported to his supervisor,
Bobby Mann, that he was experiencing pain in his neck, right
shoulder, and right arm, as well as numbness in his right thumb,
index finger, and middle finger, due to the flaring up of
injuries sustained in a 2000 auto accident.
Stocton continued
to work on the A line for approximately six more weeks and then
was transferred to the “crankshaft area,” where he was required
to lift twenty-eight pound parts.
Although Stocton testified
that he was transferred to the crankshaft area as light duty
work to accommodate his injury, Mann testified that the transfer
was merely temporary and not intended to accommodate Stocton’s
injury, which Stocton had previously informed Mann was related
to an automobile accident and not work related.
-2-
After only a couple of shifts in the crankshaft area,
Stocton awoke one morning to find that he could not hold his
head upright.
Mann suggested that it was just a “crick” that
would go away in a few days, but when the symptoms continued for
several days, Stocton informed French’s human resources
assistant, Radonna Jewell, on April 23, 2002, that he was going
to the doctor and wanted to request a medical leave and
short-term disability.
As Stocton did not fully understand the
Accident & Sickness Claim Statement, Jewell assisted him in
completing the form by reading the questions and marking his
answers.
Although Stocton testified that he informed Jewell
that the injury was work related, Jewell testified and the form
reflected that he told her that it was not.
Jewell testified
further that her job required her to process forms regarding
employee attendance, vacation, sickness and medical leave, and
insurance, but that employees who reported work-related injuries
to her were referred to a company nurse, Angie Read.
Stocton testified that later the same day he was
examined at the office of his long-time family physician, Dr.
Bobby Brooks, where he reported that after throwing horseshoes,
he awoke from a nap with spasms in his right neck and shoulder,
as well as numbness in his right thumb.
Over the course of
several office visits, Dr. Brooks ordered an x-ray of Stocton’s
cervical spine, which showed mild disc space narrowing at C5-6.
-3-
Dr. Brooks also prescribed medications and physical therapy,
ordered an MRI which revealed a large right paramedian disc
protrusion at C5-6, and referred Stocton to a neurosurgeon who
ultimately performed an anterior cervical discectomy and fusion
in late May 2002.
Dr. Brooks’ office’s response to questions
asked on French’s Accident & Sickness Claim Statement indicated
that the injury was not work-related.
Stocton returned to light duty work at French
approximately eight weeks after his discectomy and fusion.
However, two weeks later on August 17, 2002, he suffered a
nonwork-related neck injury when he fell off a deck. 2
Stocton’s
employment with French was ultimately terminated on September 9,
2002.
To support his workers’ compensation claim, Stocton
submitted a narrative report from Dr. Brooks which opined that
Stocton’s neck problem was work related and not in any way
related to an April 2000 car accident.
Stocton also submitted
an independent medical evaluation from Dr. Vickie Whobrey, who
assigned Stocton a 25% permanent impairment rating relating to
his work at French.
Nevertheless, after a benefit review
conference, the ALJ dismissed Stocton’s claim in its entirety,
stating:
2
Ensuing medical x-rays revealed that the preceding C5-6 fusion was solid and
not exacerbated by Stocton’s fall off the deck.
-4-
There is ample evidence from Plaintiff’s
previous medical records and his long-time
treating physician, Dr. Bobby Brooks, that
Plaintiff’s problems are as a result of
non-work related activities and accidents.
I am not at all persuaded that Plaintiff
thought he was filling out workers; [sic]
compensation forms, when he signed up for
the Sickness and Accident policy. Dr.
Brooks felt that Plaintiff would have
long-term, if not lifetime effects of the
automobile accident, and for him to later
make a complete turnaround regarding
causation of Plaintiff’s obvious problems,
is simply not persuasive. Besides, I do not
find that notice was complete. Thus, for
the within reasons, Plaintiff’s claim shall
hereinafter be dismissed in its entirety.
The Board unanimously affirmed, holding that it could
not disturb the ALJ’s decision given the ample evidence which
contradicted the doctors’ opinions as to causation.
In so
holding, the Board noted that an “ALJ is free to disregard even
unrebutted medical testimony so long as she sets out a
reasonable basis for doing so.
Cf. Mengel v. Hawaiian Tropic
Northwest & Central Distributors, Inc., Ky.App., 618 S.W.2d 184
(1981)[.]”
The Board further found the notice issue to be moot.
This appeal followed.
On appeal, Stocton proffers that the ALJ erroneously
substituted her opinion in place of unrebutted, substantial
evidence regarding medical causation, and that the board
therefore erred as a matter of law by affirming the ALJ’s
opinion.
We disagree.
-5-
In a workers’ compensation claim, the claimant has the
burden of proving “every element of his claim, including
causation.” 3
Specifically, a claimant must prove medical
causation “to a reasonable medical probability with expert
medical testimony[,]” although not necessarily with objective
medical findings. 4
On appeal, a losing claimant must prove that
“the evidence was so overwhelming, upon consideration of the
entire record, as to have compelled a finding in his favor.” 5
The role of this court on appeal “is to correct the Board only
when we perceive that the Board has overlooked or misconstrued
controlling law or committed an error in assessing the evidence
so flagrant as to cause gross injustice." 6
In Magic Coal Co. v. Fox, 7 the Kentucky Supreme Court
stated that “[w]here the question at issue is one which properly
falls within the province of medical experts, the fact-finder
may not disregard the uncontradicted conclusion of a medical
expert and reach a different conclusion.”
We find this
proposition inapplicable to the case at bar, however, because
3
Dravo Lime Co. v. Eakins, 156 S.W.3d 283, 288 (Ky. 2005).
4
Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004).
5
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
6
Wal-Mart v. Southers, 152 S.W.3d 242, 245 (Ky.App. 2004) (internal citations
omitted).
7
19 S.W.3d 88, 96 (Ky. 2000) (citing Mengel v. Hawaiian-Tropic Northwest and
Central Distributors, Inc., 618 S.W.2d 184 (Ky. 1981)).
-6-
here the medical testimony regarding causation is not
uncontradicted.
Although the record includes the reports of Dr. Brooks
and Dr. Whobrey which opined that Stocton’s injury was work
related, the record also includes a report by Dr. Brooks,
written approximately two weeks before Stocton commenced work at
French, which discussed the pain Stocton experienced in his
neck, right shoulder, and low back following an April 2000 car
accident:
I am happy to report that he has made
significant progress now and hopefully,
quite soon can resume a normal life both
from an employment standpoint and any
enjoyment of personal pleasures.
This young man was absolutely rendered
totally incapacitated for at least a year
following this accident. . . . He is still
going to be limited as to lifting or pushing
heavy items and he will be limited as far as
flexibility of his neck and lower back as to
bending, turning and squatting.
He has had some residual neurological
deficits of his right upper extremity which
can adversely effect fine manipulative work
activities with this extremity. He has
continuing discomfort in several areas and
will require some degree of analgesia along
with possible muscle relaxers, which in
itself will limit his work activities,
particularly from a standpoint of climbing
and operating machinery. I feel like many
of these limitations will continue for quite
some time and possibly the rest of his life.
-7-
Moreover, Dr. Brooks’ records indicate that Stocton initially
attributed his injury to throwing horseshoes, and the responses
of Dr. Brooks’ office to questions asked on French’s claim
statement indicated that the April 2002 injury was not work
related.
These inconsistent reports gave rise to a situation
“[w]here the uncontradicted sequence of events casts doubt upon
the correctness of the diagnosis of physicians, [and] such
evidence presents an issue of fact to be determined by the [fact
finder].” 8
Here, the ALJ was permitted to “reject any testimony
and believe or disbelieve various parts of the evidence,
regardless of whether it was presented by the same witness or
the same party's total proof.” 9
This is especially true in light
of the fact that Radonna Jewell and Bobby Mann testified that
Stocton never told them that his injury was work related, and
the fact that Stocton’s completed claim statement did not
characterize his injury as being work related.
In light of such
evidence and the ALJ’s “sole authority to judge the weight,
credibility and inferences to be drawn from the record[,]” 10 we
conclude that the ALJ did not err in finding that Stocton’s
injury was not work related.
8
Blue Bird Mining Co. v. Kelly, 237 S.W.2d 530, 532 (Ky. 1951).
9
Garrett Mining Co. v. Nye, 122 S.W.3d 513, 518 (Ky. 2003).
10
Southers, 152 S.W.3d at 245 (citing Miller v. East Kentucky
Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997)).
-8-
Because we believe that the ALJ did not err in
dismissing Stocton’s claim after finding that his injury was not
work related, we do not reach the issue of whether Stocton gave
adequate notice of his alleged work-related injury.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Larry D. Ashlock
Elizabethtown, Kentucky
BRIEF FOR APPELLEE J. L.
FRENCH:
D. Gaines Penn
Bowling Green, Kentucky
-9-
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