RANDALL DANIELS v. B.R. & D. ENTERPRISES, INC.; LONE MOUNTAIN PROCESSING, INC.; SHEILA C. LOWTHER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JULY 29, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000420-WC
RANDALL DANIELS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-78746
ACTION NO. WC-98-65600
v.
B.R. & D. ENTERPRISES, INC.;
LONE MOUNTAIN PROCESSING, INC.;
SHEILA C. LOWTHER, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
BEFORE:
** ** ** ** **
BARBER, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Randall Daniels petitions for review of an
opinion of the Workers’ Compensation Board which affirmed a
decision of the Administrative Law Judge finding that Daniels’
claim against Lone Mountain Processing was barred by KRS
342.165(2) due to the falsification of an application for
employment.
We agree with the Board that there was a causal
connection between the false representation and the subsequent
injury, hence, we affirm.
On September 8, 1998, in the course of his employment
with B.R. & D. Enterprises (“B.R. & D.”), Daniels injured his
lower back when trying to move a large rock with a pry bar.
Daniels was diagnosed with lumbar strain by neurosurgeon Dr.
James Bean on September 28, 1998.
Daniels received temporary
total disability benefits for 3 ½ weeks, and returned to his
employment with B.R. & D.
On November 16, 1998, Dr. Bean
reviewed an MRI which showed degenerative disc disease at L5-S1
without a herniation.
As of December 7, 1998, Daniels reported
continued pain in his back and left leg.
Daniels’ final follow-
up visit with Dr. Bean was on March 1, 1999, at which time
Daniels reported experiencing back pain with lifting and
shoveling.
Dr. Bean assessed Daniels at maximum medical
improvement, retaining a 5% functional impairment.
Daniels
settled his workers’ compensation claim arising out of this
accident on July 1, 1999, on the basis of a 5% functional
impairment.
Daniels continued to work for B.R. & D. until October
2001, when he was hired by Lone Mountain Processing (Lone
Mountain).
As part of the hiring process with Lone Mountain,
Daniels was required to undergo a physical examination and
complete a medical history questionnaire.
On this
questionnaire, Daniels answered “No” to questions which included
whether he ever had or has now a back injury or back pain; if he
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had ever filed a compensation claim or received benefits as a
result of an industrial injury or disease; if he had any
physical complaints or disabilities at the present time; and if
he had ever consulted or been treated by physicians within the
past five years.
Based on the physical examination and review
of the medical questionnaire, Daniels was approved for work
without restrictions.
On June 11, 2002, while pulling on a miner cable,
Daniels felt a sharp pain in his back and hips.
Daniels was
treated on June 12, 2002, at the emergency room and subsequently
by Dr. LeFeuvre, who diagnosed him with acute chronic lumbar
sprain.
Daniels was eventually referred back to Dr. Bean.
Dr.
Bean saw Daniels on August 5, 2002, at which time Daniels
reported back pain which had begun on June 11, 2002 while
hanging a miner cable.
Dr. Bean ordered a new MRI which, in a
note dated August 19, 2002, he reported as showing degenerative
disc at L5-S1 with no evidence of disc herniation.
Dr. Bean
stated that this was the same finding at L5-S1 as seen in 1998.
Dr. Bean also stated Daniels “has a new injury preceding a
chronic degenerative disk.
new.”
This is 50% preexistant [sic]/ 50%
As of September 16, 2002, Dr. Bean assessed Daniels at
maximum medical improvement with a 7% impairment rating.
Daniels filed a claim and Lone Mountain resisted,
contending that Daniels willfully made a false representation as
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to his physical condition or medical condition on his
application and that his claim is barred under KRS 342.165(2).
In an opinion and order entered March 26, 2004, the
ALJ found, in pertinent part:
Having reviewed the totality of the lay and
medical evidence contained in the record in
Mr. Daniels’ claim against Lone Mountain
Processing, it is the finding of the
Administrative Law Judge that the facts in
that claim cannot be distinguished from
those in [Gutermuth v. Excel, 43 S.W.3d 270
(Ky. 2001)]. Mr. Daniels had a previous
back injury, for which he underwent
diagnostic testing and treatment by a
neurosurgeon. He was off work for several
weeks following that injury, and
subsequently prosecuted a workers’
compensation claim and received a
settlement. Three years later, he sought
employment as an underground coal miner with
Lone Mountain Processing. He was required
to undergo a pre-employment physical as a
condition of that hiring. In the medical
questionnaire which the plaintiff was
required to complete as part of that
physical, multiple questions were posed to
the plaintiff, which should have revealed
his history of previous back complaints and
a workers’ compensation claim. Instead, the
plaintiff denied any such medical history.
Mr. Biggerstaff and Mr. Bowman both
testified that they were unaware of the
plaintiff’s history of back problems. Mr.
Bowman indicated that the medical
examination was an essential part of the
hiring process. As in Gutermuth, by
misrepresenting his physical condition Mr.
Daniels defeated the purpose of this medical
examination. He subsequently sustained a
work related injury to his low back, at the
same level where he was injured in 1998.
Based upon this evidence, it is the finding
of the Administrative Law Judge that
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[Daniels’ claim] against Lone Mountain
Processing is barred by the provisions of
KRS 342.165 (2). Therefore, that claim is
hereby DISMISSED.
In an opinion entered January 28, 2005, the Board affirmed,
finding:
[T]he CALJ’s decision is supported by
substantial evidence in the record. Lone
Mountain did not have to produce evidence
that there was a causal relationship between
Daniels’ previous injury and the one
incurred with Lone Mountain; only that the
work-related injury was causally related to
Daniels’ misrepresentation about any prior
back problem. . . . The CALJ noted the 2002
injury was at the same level as the 1998
injury. Though Dr. Bean classified the
incident as a new injury, the MRI in 2002
showed degenerative disc disease at L5-S1
with no evidence of disc herniation. This
was the same finding of degeneration at L5S1 as found in 1998. . . . We believe this
evidence supports the reasonable inference
by the CALJ that if not for the
falsification on the questionnaire Daniels
would not have been permitted to perform the
heavy labor with Lone Mountain, which caused
his work-related injury.
On appeal, Daniels contends the Board and ALJ erred in
that there is no proof to support the three-prong test of KRS
342.165(2).
KRS 342.165(2) provides:
No compensation shall be payable for workrelated injuries if the employee at the time
of entering the employment of the employer
by whom compensation would otherwise be
payable falsely represents, in writing, his
physical condition or medical history, if
all of the following factors are present:
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(a) The employee has knowingly and
willfully made a false representation as to
his physical condition or medical history;
(b) The employer has relied upon the false
representation, and this reliance was a
substantial factor in the hiring; and
(c) There is a causal connection between
the false representation and the injury for
which compensation has been claimed.
Daniels’ appeal basically concedes the first two
prongs.
Daniels argues, however, that the third prong of the
test (whether there is a causal connection between the false
representation and the subsequent injury for which compensation
is being claimed) is a medical question, to be determined by
medical experts, and that there was no medical evidence to
support the ALJ and the Board’s finding.
Daniels contends that
both the ALJ and the Board based their finding of a causal
connection on the fact that there was no change in the MRI
following the 1998 injury and the MRI following the 2002 injury,
but that they are not qualified to make such a medical
interpretation.
Gutermuth v. Excel, 43 S.W.3d 270, 273 (Ky. 2001)
indicates that the question of a causal connection is an issue
of fact for the ALJ.
In the present case, we cannot say the
ALJ’s finding was unreasonable.
The function of the Court of Appeals in reviewing a
decision of the Workers’ Compensation Board is to correct the
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Board only where the Court perceives the Board has overlooked or
misconstrued statutes, precedent, or has flagrantly erred in
assessing the evidence so as to cause a gross injustice.
Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992).
Having reviewed the evidence and the law, we find no
errors and therefore the decision of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
John E. Anderson
Barbourville, Kentucky
BRIEF FOR APPELLEE B.R. & D.
ENTERPRISES, INC.:
Denise Kirk Ash
Lexington, Kentucky
BRIEF FOR APPELLEE LONE
MOUNTAIN PROCESSING, INC.:
Denise M. Davidson
Hazard, Kentucky
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