DUANE IRELAND v. MILAN EXPRESS CO., INC.; HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 22, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-00379-WC
DUANE IRELAND
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-01928
MILAN EXPRESS CO., INC.;
HON. DONNA H. TERRY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON, AND McANULTY, JUDGES.
McANULTY, JUDGE:
Duane Ireland (Ireland) has petitioned for
review of an opinion of the Workers’ Compensation Board (Board)
entered on January 21, 2005, that affirmed an opinion and order
of the Administrative Law Judge (ALJ) rendered August 17, 2004,
dismissing Ireland’s claim against Milan Express Co., Inc.
(Milan) for failure to establish that his physical complaints
were the result of a work-related injury.
Before us, Ireland
argues that the Board erred in affirming the ALJ's opinion and
order, asserting that the ALJ's findings were not supported by
substantial evidence and as a legal question, the findings of
the ALJ and Board are not conclusive to this Court.
We affirm.
Ireland, who obtained his GED after completing the
eleventh grade, received vocational training in welding and
truck driving, and worked in welding and truck driving prior to
beginning work as a truck driver with Milan in the spring of
2002.
With Milan, he worked an average of fifty to fifty-five
hours per week.
His duties included short haul trips from
Milan’s Frankfort terminal to Lexington and Frankfort, and he
also frequently loaded and unloaded freight with an average
maximum weight of fifty pounds.
On July 18, 2002, while making his first delivery of
the day, Ireland experienced a pinching feeling in his right
leg.
He “walked-off” the sensation and reentered the truck.
While driving to his second delivery, the sensation intensified.
Ireland parked the truck to stretch again and became unable to
either walk or stand up straight.
Ireland reported to his supervisor that he was having
trouble; that the truck ride was very bumpy; and that the pain
in his leg “just came on.”
The supervisor supplied a relief
driver and returned Ireland to the terminal.
Ireland drove
himself to the hospital emergency room (ER).
According to the
ER records, Ireland reported a three-week history of low back
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pain with hip and leg muscle stiffness.
(Later, in his
deposition, Ireland denied relating this three-week history of
pain).
He was treated with muscle relaxants and pain
medication, and returned to work after a couple of days.
On July 22, 2002, four days after his trip to the ER,
Ireland complained to a chiropractor of a very stiff back; lower
back pain; and sharp pain shooting around his sides and down his
legs to the ankles.
Although the chiropractic records indicated
a two-month history of the symptoms, later in his deposition
Ireland denied or did not recall giving this history.
He was
treated without much relief, and continued working for Milan.
Eight months later, in March, 2003, Ireland sought
treatment from his family physician.
He reported an eight-month
history of right leg pain, lower backache, and pain around his
right buttock area, as well as occasional numbness or funny type
feeling in his right lower extremity.
The family physician saw
no trauma or injury; no swelling or redness of the right lower
extremity; intact reflexes; equal or no SI joint area
tenderness; paraspinal and spinal tenderness in the lower back;
and very early degenerative changes of the lumbosacral spine.
He diagnosed probable right lumbrosacral radiculopathy/sciatica
without any focal motor deficit, and prescribed pain medication.
That same month, Ireland resigned from Milan for a
better job with Taylor Trucking as an over-the-road driver
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hauling steel, but because he could not physically chain down
the loads, a component of the job, he left Taylor after a month.
He then worked for Baylor Trucking, hauling Pepsi products
locally from warehouse to warehouse, until July 2, 2003.
Since
that date, he has not worked.
In July, 2003, Ireland saw his family physician again
for pain in his low back and right leg.
He again reported that
he was not aware of any trauma or injury.
An MRI showed, at L5-
S1, “a 7-8 mm central and right paracentral disc herniation
effacing the ventral thecal sac, impinging on the right lateral
recess and presumably impinging on the traversing right S1 nerve
root.”
He was referred to an orthopedic surgeon on August 5,
2003, where he reported a one-year history of right leg pain
symptoms and right leg radicular pains beginning in August,
2002, while on the job driving a tractor-trailer.
After a
diagnosis of right S1 radiculopathy with mild mechanical low
back pain, surgery was performed on August 12, 2003, resulting
in a percutaneous discectomy and fusion at L5-S1 with pedicle
and cage instrumentation.
The surgery relieved the pain in
Ireland’s right leg, but post-surgery he reported more
significant low back pain as well as left leg pain.
At his
follow-up visit in September, 2003, Ireland was referred for
physical therapy.
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The record contains a report, dated May 2, 2004, from
Ireland’s orthopedic surgeon, indicating that Ireland’s
treatment was the direct result of injuries sustained while
working on the job in August of 2002; 1 assessing a 23% impairment
under DRE lumbar Category IV of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment,
Fifth Edition (AMA Guides); and recommending restrictions, if he
were pain free, against repetitive bending at the waist or
lifting of more than fifty pounds.
On June 2, 2004, an independent medical examination
(IME) was performed by an orthopedic surgeon.
After looking at
the medical records from the ER and the chiropractor, taking a
history, and performing a physical examination, he concluded
that Ireland’s condition was pre-existing and active prior to
July 18, 2002; that the right leg sciatica developed
spontaneously without traumatic causation while Ireland was
driving the truck; and that there was neither a single workrelated traumatic event nor a series of traumatic events
producing a harmful change in the human organism.
He therefore
assessed a 23% permanent impairment rating under DRE lumbar
Category IV of the AMA Guides based on Ireland’s continued
symptoms and new onset of left leg symptoms, or a 15% permanent
impairment rating under the Range of Motion Model of the AMA
1
In contrast, the date of the claim was July 18, 2002.
-5-
Guides; and allowed Ireland to return to work at a sedentary to
medium duty job with restrictions against lifting over thirty to
forty pounds.
On August 17, 2004, the ALJ issued its opinion and
order, dismissing Ireland’s claim on a finding that Ireland’s
recollection of the onset of his symptoms was not supported by
the contemporaneous medical record which established that in the
ER, he gave a history of onset three weeks before; and four days
later at the chiropractor, he gave a history of onset of two
months before.
As Ireland was “unable to point to any work-
related traumatic event or series of traumatic events which were
the proximate cause of his right leg and back pain on July 18,
2002,” the ALJ concluded that Ireland failed to carry his burden
of proving, pursuant to Kentucky Revised Statutes (KRS)
342.0011(1), 2 the occurrence of a work injury on July 18, 2002.
The ALJ discounted the orthopedic surgeon’s May 2, 2004, report,
noting that the surgeon did not have the benefit of a complete
history because he did not have the opportunity to review
medical records from other treating physicians; whereas the
2
"Injury" means any work-related traumatic event or series of traumatic
events, including cumulative trauma, arising out of and in the course of
employment which is the proximate cause producing a harmful change in the
human organism evidenced by objective medical findings. "Injury" does not
include the effects of the natural aging process, and does not include any
communicable disease unless the risk of contracting the disease is increased
by the nature of the employment. "Injury" when used generally, unless the
context indicates otherwise, shall include an occupational disease and damage
to a prosthetic appliance, but shall not include a psychological,
psychiatric, or stress-related change in the human organism, unless it is a
direct result of a physical injury.
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orthopedic surgeon who performed the IME had the benefit of a
full medical record review.
Before the Board, Ireland contended that although the
conclusion of the ALJ was based upon substantially undisputed
evidence, that it was subject to review by the Board as a legal
question, arguing that although the ER and chiropractic records
evidenced a history of symptoms prior to July 18, 2002, that
Ireland denied that history; that the medical records did not
indicate a history of leg pain prior to July 18, 2002, but only
low back pain; and that the leg pain began during the bumpy
delivery on July 18, 2002.
In affirming the ALJ's opinion and order, the Board
stated:
Ireland impermissibly requests this
Board to substitute its judgment as to the
weight and credibility of the evidence for
that of the ALJ as fact-finder. As we
admonish so frequently, this is not the
Board’s function. See KRS 342.285(2);
Paramount Foods Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985).
It is well-established that a claimant
in a workers’ compensation claim bears the
burden of proving each of the essential
elements of his cause of action. Burton v.
Foster Wheeler Corp., Ky., 72 S.W.3d 925
(2002). Since Ireland was unsuccessful in
his burden of proof before the ALJ, the
question on appeal is whether the evidence
is so overwhelming, upon consideration of
the whole record, as to compel a finding in
his favor. Wolf Creek Collieries v. Crum,
Ky.App., 673 S.W.2d 735 (1984).
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Compelling evidence is defined as
evidence that is so overwhelming no
reasonable person could reach the same
conclusion as the ALJ. REO Mechanical v.
Barnes, Ky.App., 691 S.W.2d 224 (1985). As
fact-finder, the ALJ has the sole authority
to determine the quality, character, and
substance of the evidence. Square D Co. v.
Tipton, Ky., 862 S.W.2d 308 (1993);
Paramount Foods Inc. v. Burkhardt, supra.
Similarly, the ALJ has the sole authority to
judge the weight and inferences to be drawn
from the evidence. Miller v. East Kentucky
Beverage/Pepsico, Inc., Ky., 951 S.W.2d 329
(1997); Luttrell v. Cardinal Aluminum Co.,
Ky.App., 909 S.W.2d 334 (1995). The ALJ, as
fact-finder, may reject any testimony and
believe or disbelieve various parts of the
evidence, regardless of whether it comes
from the same witness or the same adversary
party’s total proof. Magic Coal v. Fox,
Ky., 19 S.W.3d 88 (2000); Whittaker v.
Rowland, Ky., 998 S.W.2d 479 (1999); Halls
Hardwood Floor Co. v. Stapleton, Ky.App., 16
S.W.3d 327 (2000). Mere evidence contrary
to the ALJ’s decision is not adequate to
require reversal on appeal. Whittaker v.
Rowland, supra. In order to reverse the
decision of the ALJ, it must be shown there
was no evidence of substantial probative
value to support his decision. Special Fund
v. Francis, Ky., 708 S.W.2d 641 (1986).
In this instance, pertaining to the
issue of when and how the petitioner’s
injury actually occurred, the evidence is
conflicting. Ireland could not identify a
specific episode of trauma that produced his
symptoms. While it is undisputed that
Ireland was afflicted with significant pain
on July 18, 2002, upon arriving at the
Norton Hospital emergency room he reported a
history of low back pain with hip and leg
muscle stiffness that had begun three weeks
prior. The emergency room records do not
mention a work-related cause. Four days
later, on July 22, 2003 (sic), Ireland
sought treatment at Eriksen Chiropractic
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Center. The patient intake form contained a
history of low back pain and stiffness and
sharp pain in both legs for the preceding
two months. Again Ireland did not report a
work-related cause. Moreover, as pointed
out by the ALJ, Dr. Gleis, after conducting
an exhaustive medical records review,
concluded that Ireland’s right leg and low
back condition were pre-existing and active
prior to July 18, 2002. Dr. Gleis further
opined that Ireland’s complaints developed
spontaneously and without any work-related
traumatic causation. Such evidence, in our
opinion, is more than ample to support the
conclusions reach (sic) by the ALJ
dismissing Ireland’s case. There is
sufficient evidence of substantial probative
value plainly indicating that Ireland’s
complaints were pre-existing and active
prior to July 18, 2002. Hence, we may not
disturb the ALJ’s ruling on appeal. Special
Fund v. Francis, supra.
Before us, Ireland submits as he did before the Board
that the ALJ erred in dismissing his claim upon substantially
undisputed evidence that he suffered a traumatic event/injury
while driving his truck for Milan on July 18, 2002, in that
although he suffered problems prior to that date, that they were
normal aches and pains, and the leg pain of the type he
experienced that caused him to be unable to walk, stand up, or
drive, began on July 18, 2002.
Ultimately, he argues that the
ALJ and the Board erred in failing to conclude in his favor
based upon his “undisputed and unrefuted” testimony.
Our standard of review of a decision of the Board “is
to correct the Board only where the Court perceives the Board
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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 Hospital
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Having reviewed
the Board's application of the law to the evidence, we conclude
that the Board committed no error.
As noted by the ALJ and the Board, the evidence
supporting Ireland’s condition as pre-existing and active
ultimately consisted of ER and chiropractic medical records
containing histories of pre-existing low back and leg pain prior
to July 18, 2002; and the IME, which concluded, with the benefit
of full medical records, a complete history, and a physical
examination, that Ireland’s right leg and low back condition
were pre-existing and active prior to July 18, 2002.
In
contrast, Ireland disputed the medical histories and in support
of a work-related injury offered a differing opinion from his
orthopedic surgeon, which (in addition to incorrectly citing
August, 2002, as the injury date, instead of July 18, 2002, as
claimed) the ALJ discounted because the surgeon did not have the
opportunity to review all the medical histories.
Based on the above, we conclude that the Board
correctly applied the law in concluding that the ALJ, as factfinder, can accept or reject any testimony and evidence, and
that “(t)here [was] sufficient evidence of substantial probative
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value plainly indicating that Ireland’s complaints were preexisting and active prior to July 18, 2002.”
See generally,
Magic Coal v. Fox, 19 S.W.3d 88, 96 (Ky. 2000); Special Fund v.
Francis, 708 S.W.2d 641, 643 (Ky. 1986).
We note that Milan submits that because Ireland did
not file a petition for reconsideration with the ALJ, 3 he failed
to preserve the issue herein for appellate review pursuant to
KRS 342.285(1). 4
In Brasch-Barry General Contractors v. Jones,
____ S.W.3d ____, (Ky. 2005) (finality endorsed 11/10/05), the
Kentucky Supreme Court cited Smith v. Dixie Fuel Company, 900
S.W.2d 609, 612 (Ky. 1995), in summarizing the Board’s duties on
review:
No new evidence may be introduced before the
Board and the Board may not substitute its
judgment for that of the ALJ concerning the
weight of the evidence on questions of fact.
The scope of review of the Board is limited
to determining whether the ALJ’s decision
3
KRS 342.281 - Within fourteen (14) days from the date of the award, order,
or decision any party may file a petition for reconsideration of the award,
order, or decision of the administrative law judge. The petition for
reconsideration shall clearly set out the errors relied upon with the reasons
and argument for reconsideration of the pending award, order, or decision.
All other parties shall have ten (10) days thereafter to file a response to
the petition. The administrative law judge shall be limited in the review to
the correction of errors patently appearing upon the face of the award,
order, or decision and shall overrule the petition for reconsideration or
make any correction within ten (10) days after submission.
4
An award or order of the administrative law judge as provided in Kentucky
Revised Statutes (KRS) 342.275, if petition for reconsideration is not filed
as provided for in KRS 342.281, shall be conclusive and binding as to all
questions of fact, but either party may in accordance with administrative
regulations promulgated by the executive director appeal to the Workers’
Compensation Board for the review of the order or award.
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was: authorized, not procured by fraud, in
conformity with Chapter 342, supported by
the evidence, and not arbitrary or
capricious.
The court then went on to hold that questions of law need not be
preserved by a petition for reconsideration to the ALJ, but may
be appealed directly to the Board:
(I)n Whittaker v. Reeder, 30 S.W.3d 138 (Ky.
2000), we reiterated that it is the Board’s
province on appeal to ensure that ALJ
decisions are in conformity with Chapter 342
(the Workers’ Compensation Act) and that
such determinations constitute questions of
law, and not fact. Id. at 144.
Milan relies on Halls Hardwood Floor Company v. Stapleton, 16
S.W.3d 327, 330 (Ky. App. 2000), but that holding is consistent
with Brasch-Barry and factually distinguishable from the case at
bar.
In Halls Hardwood, the issue concerned an erroneous
computation of weekly benefits.
A petition for reconsideration
was therefore required to bring a patent factual error to the
attention of the fact-finder.
As the question herein was one of
law, it did not require Ireland to first file a petition for
reconsideration in order to preserve the issue for review before
the Board, and the Board did not err in addressing the issue on
the merits.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward A. Mayer
Mayer Law Office
Louisville, Kentucky
Carla Foreman Dallas
Turner, Keal & Dallas PLLC
Prospect, Kentucky
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