MICHAEL REYNOLDS v. MAXIM/CARLISLE CONSTRUCTION; HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE;
Annotate this Case
Download PDF
RENDERED:
DECEMBER 16, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001613-WC
MICHAEL REYNOLDS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 03-WC-91900
v.
MAXIM/CARLISLE CONSTRUCTION;
HON. DONNA H. TERRY,
ADMINISTRATIVE LAW JUDGE;
and WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MINTON, JUDGES.
BARBER, JUDGE:
Appellant, Michael Reynolds (Reynolds),
petitions for review of a decision of the Workers’ Compensation
Board (WCB) that affirmed a determination by the Administrative
Law Judge (ALJ) that his back injury on November 3, 2003 while
employed at Appellee, Maxim/Carlisle Construction Company,
(Carlisle) was not a separate and distinct injury pursuant to
KRS 342.0011(1). 1
The ALJ found that his back injury was a
temporary exacerbation of a pre-existing condition from an
injury that occurred December 24, 2001. 2
Therefore, the ALJ
found the claim related to the original back injury was time
barred and Carlisle was liable for medical expenses related to
the November 3, 2003 injury until December 24, 2003.
We affirm.
Reynolds began working for Carlisle in 1998.
Carlisle
builds roads and performs excavation for building sites.
Reynolds served as a field mechanic with responsibilities for
repair and maintenance of heavy equipment such as track hoes,
track loaders, dozers, scrapers, compactors, and graders.
At
the time of the hearing, Reynolds still worked as a field
mechanic full-time for Carlisle. 3
On January 3, 2002, Reynolds experienced pain
throughout his back while attempting to lift an eighty pound
hydraulic test kit from his tool box with his right hand.
He
finished his shift and reported the injury to his supervisor the
following day.
Reynolds first sought treatment for his back
pain, including physical therapy and epidural injections, with
1
Reynolds had other injuries listed in his claim, but his appeal is limited
to the November 3, 2003 back injury.
2
The record reflects that Reynolds’ first back injury occurred on January 3,
2002. An injury did occur on December 24, 2001, but it was a left elbow
injury. Reynolds did not appeal this finding in his appeal to the WCB or to
our court.
3
Reynolds worked 50-55 hours per week on average.
-2-
little relief at St. Elizabeth Medical Center and Christ
Hospital.
Later, Reynolds sought relief from a chiropractor,
Mark G. Schweitzer, D.C., on July 10, 2003.
well to Dr. Schweitzer’s treatment. 4
Reynolds responded
Initially, Reynolds saw Dr.
Schweitzer about twice a week, but later decreased the frequency
of treatment to approximately once a week. 5
To Reynolds’ credit,
he did not miss a day of work as a result of his January 2002
injury.
Unfortunately, Reynolds suffered another episode with
his back on November 3, 2003, while he was alone and attempted
to manipulate a 250 pound hydraulic cylinder.
At the time of
the November 3, 2003 episode, Reynolds was still under the care
of Dr. Schweitzer and coincidentally had an appointment with him
that day. 6
Reynolds was still being treated by Dr. Schweitzer at
the time of the hearing, but the frequency had decreased to only
once every two weeks.
The final hearing was held January 25, 2005 before ALJ
Donna H. Terry.
8, 2005.
The ALJ issued her opinion and award on March
The ALJ found that the January 3, 2002 low back injury
4
In his deposition, Dr. Schweitzer states that Reynolds was placed in the
prone antigravity position, received flexion distraction technique, as well
as sideline sacroiliac manipulation on nearly every visit. He also
administered electrical stimulation, ice, and heat during the early stages of
Reynolds’ treatment.
5
Reynolds had decreased to about once a week on his chiropractic visits prior
to his November 3, 2003 injury.
6
Dr. Schweitzer testified in his November 11, 2004 deposition that he
provided the same treatment November 3, 2003, as he had on prior visits.
-3-
was time barred pursuant to KRS 342.185.
The ALJ further found
that the November 3, 2003 injury was not a separate injury
pursuant to KRS 342.0011(1) causing a harmful change or
significant difference in symptomatology, but was a temporary
exacerbation of the December 24, 2001 injury.
As such, Reynolds
was entitled to payment of related medical expenses, including
reasonable and necessary chiropractic treatment, up to and
including December 24, 2003.
6, 2005.
The WCB issued an opinion July 8, 2005, affirming the
ALJ award.
court.
Reynolds appealed to the WCB April
Following this affirmation, Reynolds appealed to our
Reynolds’ sole argument is that the ALJ erred in not
finding his November 3, 2003 back injury as a separate and
distinct injury entitling him to medical and permanent partial
disability benefits.
Reynolds argues that the medical evidence supports a
finding that his November 3, 2003 back injury was a separate and
distinct injury under KRS 342.0011(1).
Reynolds relies upon the
testimony and medical reports of Dr. Schweitzer, the only
medical witness presented in his claim.
The claimant bears the burden of proof and the risk of
non-persuasion before the fact-finder with regard to every
element of a workers’ compensation claim.
Fox, 19 S.W.3d 88, 96 (Ky. 2000).
Magic Coal Company v.
In order for that burden to
be sustained, no less than substantial evidence of each element
-4-
of the claim must be introduced.
Id.
Substantial evidence has
been defined as some evidence of substance and relevant
consequence, having the fitness to induce conviction in the mind
of reasonable people.
Id.
Although substantial evidence is
sufficient to support an essential finding of fact, it will not
necessarily require a favorable ruling, even in instances where
the contrary evidence is less than substantial.
Id.
Only
evidence which is so overwhelming that no reasonable person
would fail to be persuaded by it will compel a particular
finding.
Id.
Therefore, since Reynolds was unsuccessful in his
burden of proof, the question on appeal is whether the evidence
is so overwhelming, upon consideration of the record as a whole,
as to compel a finding in his favor.
Wolf Creek Collieries v.
Crum, 673 S.W.2d 735, 736 (Ky. 1984).
Compelling evidence is defined as evidence so
overwhelming that no reasonable person could reach the
conclusion of the ALJ.
Webster County Coal Corp. v. Lee, 125
S.W.3d 310, 316 (Ky.App. 2003).
The ALJ has the sole authority
to determine the weight, credibility, and substance of the
evidence and to draw reasonable inferences from the evidence.
Transportation Cabinet v. Poe, 69 S.W.3d 60, 62 (Ky. 2001), see
also KRS 342.285.
what to believe.
The ALJ has the discretion to choose whom and
Id., (citing Pruitt v. Bugg Brothers, 547
S.W.2d 123, 125 (Ky. 1977)).
The ALJ, as fact-finder, may
-5-
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.
Burton v.
Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky. 2002), (citing
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky.
1977)).
Although a party may note evidence which would have
supported a conclusion contrary to the ALJ’s decision, such
evidence is not an adequate basis for reversal on appeal.
Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999).
The medical evidence related to Reynolds’ back injury
submitted in this matter was solely from Dr. Schweitzer and
consisted of a medical report, 7 a letter with Reynolds’
impairment rating, 8 and a transcript of Dr. Schweitzer’s
deposition. 9
The ALJ stated the following in her Opinion and
Award:
The most troubling and contested issue
is the compensability of Mr. Reynolds’ back
condition. Mr. Reynolds is a credible
witness and the Administrative Law Judge
finds that he did report the November 3,
2003 incident to one of his two supervisors
on the following day. However, the effect
of that incident has been vigorously
contested.
7
Workers Compensation Form 107.
8
The letter was prepared October 4, 2004 and gave Reynolds an 8% permanent
impairment rating.
9
The deposition was taken November 11, 2004.
-6-
Under KRS 342.0011(1), an employee
bears the burden of proving that an incident
is the proximate cause of a harmful change
in the human organism evidenced by objective
medical findings. In this case, Mr.
Reynolds was undergoing active chiropractic
treatment for back symptoms which waxed and
waned depending on his job duties. To his
credit, Mr. Reynolds is an industrious
worker who continued to perform his regular
job, including lifting, bending, and
twisting on a regular basis, the very type
of activities which could be expected to
exacerbate his already-active back
complaints. On November 3, 2003, Mr.
Reynolds reported to Dr. Schweitzer that he
had experienced “bad days” on Monday,
Tuesday, and Wednesday of that week while
pulling a cylinder and received the same
type of treatment which had been rendered on
each of his previous visits. Subsequent
chiropractic notes showed improvement in
flexibility and pain level and Dr.
Schweitzer indicated that Mr. Reynolds
currently has about the same residual
symptoms as before the November 3, 2003
incident and that his condition has returned
to baseline. Dr. Schweitzer testified that
he would probably have assessed the same
impairment rating before and after November
3, 2003 and that the type of treatment did
not change before or after that date.
Based upon the foregoing, the
Administrative Law Judge finds that the
incident which caused the harmful change in
Mr. Reynolds’ low back occurred on December
24, 2001 and that he sustained temporary
exacerbations of that injury thereafter with
various work activities. However, he had
not been released from chiropractic care
prior to November 3, 2003 and he continued
to receive the same type of treatment for
similar symptoms both before and after the
November 3, 2003 incident. While Dr.
Schweitzer’s full treatment notes were not
filed herein, his deposition testimony
-7-
establishes that by December 12, 2003, Mr.
Reynolds reported significant improvement
and his symptoms and range of motion had
dramatically improved. Thereafter, the
symptoms appear to have waxed and waned on a
similar basis as in the past.
While Mr. Reynolds is entitled to
payment of medical expenses for the cure and
relief of a work injury, he failed to file a
claim to assert entitlement to benefits
arising from that injury within two years
following the significant injury which
occurred on December 24, 2001 and Carlisle
Construction has no liability for payment of
medical expenses arising from the effects of
the chronic December 24, 2001 back injury
after December 24, 2003. Therefore, Mr.
Reynolds shall be entitled to payment for
reasonable and necessary chiropractic
treatment by Dr. Schweitzer up to and
including December 24, 2003 but Carlisle
Construction shall have no liability for
payment of treatment thereafter. The
November 3, 2003 incident was not a separate
injury pursuant to KRS 342.0011(1) causing a
harmful change or significant difference in
symptomatology but was rather a temporary
exacerbation of the December 24, 2001 injury
and does not trigger an additional two years
of benefits.
Reynolds argues there was compelling evidence related
to Dr. Schweitzer which requires reversal.
Reynolds points out
that Dr. Schweitzer opined in his Form 107 and deposition that
Reynolds sustained a new and distinct injury on November 3,
2003.
He also argues that the ALJ should not have substituted
her judgment for that of the uncontradicted medical expert
relying upon Mengel v. Hawaiian-Tropic, 618 S.W.2d 184 (Ky.App.
1981).
We believe that Mengel is distinguishable from the
-8-
instant matter.
In Mengel, there was a complete disregard for
the medical evidence related to causation.
In the present
case, Dr. Schweitzer provided opinions in his deposition which
would support the findings of the ALJ. 10
Therefore, we do not
10
For example, in his November 11, 2004 deposition, Dr. Schweitzer testified
as follows:
Q.
. . . Are you saying that at this point he’s back to the baseline
he was before the November 2003 incident?
A. For the most part, I think that I would agree that currently he’s
at about the same baseline that he was before the November 2003
exacerbation.
Q. Okay. But did he have an increase, a temporary flare-up in his
pain, which is consistent with his history for many years?
A. Well, there’s two different arenas that I have to treat this
patient in. One is the patient himself, and I have to gear a treatment
plan based on what he presents me with. But then I also have to
establish a correspondence with a third party payor explaining why, why
should someone with a sprain or strain or herniated disc that
progressed to this point all of a sudden have an increase in treatment
frequency and all of a – why is this continuing to go on. So you
evidence to them why. And probably the most significant of the
reinjuries during that time was that November 3 incident. So I’m
describing to them that the treatments that followed the November 3rd
incident were primarily – maybe 90 percent of what I was treating was
what – the symptomatology that resulted from that more recent or most
recent injury.
Q. And Doctor Schweitzer, in individuals who have chronic low back
pain and especially that continue to do manual labor – and you noted in
one of your notes that it spoke a lot of this gentleman’s character
that he continued to work – that’s kind of the nature of the beast,
isn’t it? I mean, they’re going to have activities, episodes, things
that happen to them at work going to flare-up their pain, they’re going
to need more medication, they’re going to just need a window of more
concentrated treatment; then they return, your hope is, back to where
they were before that and they go on; and then maybe six months or a
year later they have another incident and it’s the same thing, we have
a flare-up, have to give more medication, more treatment. That’s just
consistent with the nature of the problem that this gentleman has,
isn’t it?
A. A person with his back condition might be expected to follow in a
course like that. It’s certainly reasonable.
. . .
-9-
find that Mengel is dispositive in this appeal as argued by
Reynolds.
As stated earlier, in order for this court to reverse
the findings of the ALJ unfavorable to the claimant and upon
which he had the burden of proof, the test is whether the
evidence compelled a finding in his favor.
Following a review
of the evidence presented by Reynolds, we are unpersuaded that
it is of a nature that is compelling.
While the evidence may
have been used to support a finding for Reynolds, the ALJ chose
not to do so.
This is not sufficient to warrant a reversal.
Further, we believe Dr. Schweitzer’s testimony qualifies as
substantial evidence sufficient to support the ALJ
determination that the November 3, 2003 incident was a
temporary exacerbation of a prior injury rather than a separate
and distinct injury as defined by KRS 342.0011(1). 11
Based on the foregoing, the decision of the WCB is
affirmed.
ALL CONCUR.
Q.
Okay. And I shouldn’t have interrupted you, but going back then
to where I was before, I understand the 8 percent, the basis for your
determination of that. But again, that would have been the same
impairment before November of 2003, that is a long-standing impairment?
A. If I were to base – if I would have done a similar impairment
opinion but on the visit prior to the November 2003 visit, it would
probably look similar to that.
11
The ALJ also found that a claim related to the January 3, 2002 back injury
was time barred pursuant to KRS 342.185.
-10-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry Hicks
Edgewood, Kentucky
Ronald J. Pohl
Lexington, Kentucky
-11-
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.