MARK A. JONES v. COX INTERIOR, INC.; ROBERT E. SPURLIN, ACTING DIRECTOR OF SPECIAL FUND; HON. DENIS S. KLINE, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
November 7, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-003075-WC
MARK A. JONES
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF THE
WORKERS' COMPENSATION BOARD
CLAIM NO. WC-95-44994
COX INTERIOR, INC.;
ROBERT E. SPURLIN, ACTING
DIRECTOR OF SPECIAL FUND;
HON. DENIS S. KLINE,
ADMINISTRATIVE LAW JUDGE;
and WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
*
BEFORE:
*
*
*
*
WILHOIT, CHIEF JUDGE; COMBS and JOHNSON, Judges.
JOHNSON, JUDGE:
Mark A. Jones (Jones) petitions for review of an
opinion of the Workers' Compensation Board (Board) entered on
October 11, 1996, which affirmed the Administrative Law Judge's
(ALJ) decision to deny Jones' claim for benefits due to his injury
not being work-related.
We affirm.
On April 28, 1994, Jones injured his right knee while
lifting a door for his employer, Cox Interior, Inc. (Cox).
He was
taken to the emergency room, treated, and released. He returned to
work the next day, performed an easier job for a week, and then
resumed his regular job.
He continued to work at Cox until August
22, 1994, without missing a day.
On August 22, Jones voluntarily quit his job at Cox and
returned to employment at his father's construction company where
he had worked prior to being employed for Cox.
When Jones had
previously worked for his father's company, he did carpentry work.
However, when he returned to his father's business in August 1994,
he was not able to do carpentry work because of problems with his
knee locking so he drove a truck.
After Jones' injury on April 28, 1994, his knee would
lock two to three times a day and his knee would pop 20-30 times
per day.
However, Jones was able to unlock the knee and he did not
seek medical care until a severe knee locking episode occurred on
May 2, 1995.
Jones testified that when he was getting out of his
waterbed on May 2, his knee locked.
He stated his knee would not
unlock, and he had to go to the emergency room.
The hospital notes
that were handwritten by Dr. John Mullins, the emergency room
physician, state that Jones told Dr. Mullins that he was injured
when he stepped on a board that day at work.
Based upon x-rays,
Dr. Mullins referred Jones to Dr. Thomas Loeb, an orthopedic
surgeon.
Dr. Loeb's diagnosis was a bucket handle tear of the
medial meniscus and in December 1995, Dr. Loeb performed arthroscopic knee surgery on Jones. When Jones was released from medical
care, he returned to work for his father's business as a finish
carpenter and has had no further knee problems.
On November 1, 1995, Jones filed the claim that is at
issue in this action.
At the hearing on April 29, 1996, Jones
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testified and presented the deposition of Dr. Loeb.
Cox presented
the depositions of Jones, Dr. Mullins, and Dr. John Nehil, an
orthopedic surgeon, who examined Jones for Cox.
The issue in dispute is whether Jones established workrelated causation.
Dr. Mullins' testimony was based solely on the
medical records since he had no independent recollection of the
emergency room visit.
He stated that he saw Jones in the emergency
room at 4:25 p.m. and that Jones told him that he injured his knee
by "stepping on a board today at work."
Dr. Mullins stated that
Jones "gave me a past medical history that was significant for a
patellar dislocation."
He diagnosed him with a patellar disloca-
tion which had spontaneously unlocked, then released him at 5:30
p.m.
Dr. Mullins suggested that Jones see Dr. Loeb.
Dr. Loeb testified that it was his opinion that Jones had
no pre-existing condition and had injured his knee while working
for Cox on April 28, 1994, when he lifted a door.
Dr. Loeb
explained that the daily episodes of knee popping and locking which
Jones had experienced since the April 28, 1994 injury were classic
symptoms of a medial meniscus tear.
He stated that the May 2, 1995
episode was merely a continuation of the original injury that had
never healed and was not a separate injury.
He explained that many
people with this condition go for years without surgery, and that
Jones was in the emergency room because he could not unlock the
knee on that day--not because he had been additionally injured.
Dr. Nehil testified that upon reviewing the records and
examining Jones that Jones had suffered a medial meniscus tear.
When asked whether the May 2, 1995 episode might have caused such
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a tear, Dr. Nehil stated that it may have caused the tear if there
had been some twisting motion involved.
There was no proof that a
twisting motion occurred on May 2, 1995.
The ALJ's May 28, 1996 opinion stated in part as follows:
The threshold issue presented is whether
the Plaintiff's current condition is related
to his April 28, 1994 knee injury. The Plaintiff, of course, bears the burden of proof and
the attendant risk on non-persuasion in cases
of this nature.
Based upon the testimony of Dr. Mullins,
and the Defendant's Exhibit Number One (1) to
his deposition [the emergency room record], I
will conclude that the Plaintiff suffered an
injury while working for his father on May 2,
1995[,] when he stepped on a board. I believe
it was this incident which led to his current
problems, and his claim for any additional
workers['] compensation benefits against the
Defendant, Cox Interior, Inc., will be dismissed.
In the Board's October 11, 1996 opinion, the Board stated in part
as follows:
It was Jones' burden of proof to show
causation and the employer is not necessarily
required to provide countervailing evidence
that there was twisting of his leg in the 1995
incident.
The ALJ can simply disbelieve
Jones' version of how his knee problems suddenly increased. As long as it was reasonable
for the ALJ to conclude a second superseding
injury occurred in May of 1994 [sic], there is
no compelling evidence supporting the Plaintiff.
The testimony of Dr. Nehil certainly
stated that this was a definite possibility,
given the assumption that there was a twisting
type of injury. The evidence is conflicting,
although the medical opinions do not necessarily contradict one another.
Given the fact
that a presumably reliable piece of evidence,
the emergency room record, contains an entirely different account of the 1995 incident
as that attested to by Jones, not only is
Jones' credibility called into question but
there is a reasonable basis to support the
ALJ's conclusion.
Given the significant
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change in symptomatology, ability to work[,]
and rapid deterioration of the knee as compared with his condition before May 1995 when
he was working full-time and not missing any
work, not only is his credibility in question,
but, in conjunction with Dr. Nehil's testimony
there is substantial evidence in the record
from which the ALJ could find that there was a
superseding injury and, hence, no causation.
The Board further noted that when evidence is conflicting the ALJ
may believe some parts of the evidence and disbelieve other parts
even if it comes from the same witness or the same party's proof.
Caudill v. Maloney's Discount Stores, Ky., 560 S.W.2d 15, 16
(1977).
The function of the Court of Appeals in reviewing the
Board's decision "is to correct the Board only where . . . the
Court perceives the Board 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, Ky., 827 S.W.2d 685, 687-688 (1992).
If the fact-finder finds against the person
with the burden of proof, his burden on appeal
is infinitely greater. It is of no avail in
such a case to show that there was some evidence of substance which would have justified
a finding in his favor. He must show that the
evidence was such that the finding against him
was unreasonable because the finding cannot be
labeled "clearly erroneous" if it reasonably
could have been made.
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
Where
the party with the burden of proof is unsuccessful before the ALJ,
the
question
on
different result.
appeal
is
whether
the
evidence
compelled
a
Wolf Creek Collieries v. Crum, Ky.App., 673
S.W.2d 735, 736 (1984).
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Jones strongly argues that "the absence of a twisting
event
renders
Dr.
Nehil's
testimony
worthless
as
causation of an injury that occurred in May, 1995[.]"
concerning
However, as
the Board correctly noted, it was within the ALJ's authority to
find that a May 1995 work incident did occur and that the May 1995
work incident was the cause of the injury.
The emergency room
report and Dr. Nehil's testimony constitute substantial evidence in
support of this finding.
It was reasonable for the ALJ to infer
that by stepping on a board Jones twisted his knee.
While there is
substantial
a
evidence
that
would
have
supported
finding
of
causation, we cannot say that this evidence compelled a finding of
causation.
We affirm the Board.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE,
COX INTERIOR, INC.:
Hon. Ben T. Haydon, Jr.
Bardstown, KY
Hon. Gregory Y. Dunn
Horse Cave, KY
BRIEF FOR APPELLEE,
SPECIAL FUND:
Hon. Judith K. Bartholomew
Louisville, KY
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