ELEANOR ELAINE HUNDLEY V. R. R. DONNELLEY & SONS, COMPANY; ROBERT E. SPURLIN, DIRECTOR OF SPECIAL FUND; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
November 21, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 97-CA-0272-WC
ELEANOR ELAINE HUNDLEY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
NO. WC-92-000079
R. R. DONNELLEY & SONS, COMPANY;
ROBERT E. SPURLIN, DIRECTOR
OF SPECIAL FUND;
HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
GARDNER, GUIDUGLI and JOHNSON, Judges.
GUIDUGLI, JUDGE.
Eleanor Elaine Hundley (Hundley) petitions for
review of an opinion of the Workers' Compensation Board (WCB)
affirming the opinion and dismissal rendered by the
Administrative Law Judge (ALJ).
We affirm.
Hundley alleged that she suffered a "pop" in her left
wrist on July 15, 1991, while lifting at her place of employment,
R. R. Donnelley & Sons.
treated by Dr. Hamner.
Hundley sought medical treatment and was
Hundley experienced pain and swelling
which improved when she was off work for several days in a row.
Hundley developed a ganglion cyst near her left wrist which was
removed in November, 1992, by Dr. Sajadi.
After the surgery,
Hundley complained of decreased range of motion.
In June, 1993, Hundley had surgery for a compressed
nerve in her left wrist.
After that surgery she lost movement
and had numbness in her thumb and forefinger, pain and swelling
increased, and her left wrist range of motion was further
decreased.
In February 1993, Hundley had a left carpel tunnel
release and her condition improved somewhat and she was released
to light duty six to eight weeks later.
Hundley continues to
allege a variety of ailments including, left pronator teres
syndrome, left cubital tunnel syndrome, right carpal tunnel
syndrome and bilateral epicondylitis.
The medical testimony presented a range of AMA
impairment ratings.
Hundley's treating physician, Dr. Tsai,
increased his 3% impairment rating for her injuries and
conditions to 15% after the formal hearing before the ALJ.
Dr.
Einbecker, who performed an independent medical examination (IME)
on behalf of the Special Fund and employer, assigned Hundley a 6%
impairment rating, with 4% of that impairment pre-existing.
Dr.
Hargadon performed an IME of Hundley and assigned a 6%
impairment.
During her time off work, Hundley received
$19,310.93 in temporary total disability and $22,479.72 in
medical expenses were paid on her behalf.
The ALJ found that "based upon the record as a whole,
it is the finding of this ALJ that Plaintiff has not sustained an
occupational disability as a result of her work-related injury of
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7/15/91."
The WCB affirmed the ALJ's opinion and dismissal by
opinion rendered January 10, 1997.
Hundley bases this appeal on
the contention that there is "no evidence to support a finding of
no occupational disability."
On appeal, Hundley must show that the evidence was so
overwhelming as to compel a finding in her favor.
Paramount
Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985).
As long as
the ALJ's determination is supported by any evidence of
substance, it cannot be said that the evidence compels a
different result.
(1986).
Special Fund v. Francis, Ky., 708 S.W.2d 641
Hundley must show this Court that the WCB overlooked or
misconstrued a controlling statute 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
684, 687-88 (1992).
The sole issue presented by this appeal is what weight
must be given to the medical evidence presented to the ALJ.
Medical evidence, while probative, is not determinative on the
issue of occupational disability.
S.W.2d 565 (1969).
Hudson v. Owens, Ky., 439
The mere assignment of a functional
impairment is not in and of itself a mandate to assign or not
assign a percentage of occupational disability.
Recapping Service, Ky., 694 S.W.2d 684 (1985).
Cook v. Paducah
Simply stated,
the Board was correct in holding that the law does not mandate
some degree of occupational disability be awarded in this case.
Miller's Lane concrete Co., Inc. v. Dennis, Ky. App., 599 S.W.2d
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464 (1980).
Based upon the medical testimony presented there was
no error in the ALJ's decision not to award further surgical
benefits to Hundley.
Because there was evidence of substance to support the
ALJ's decisions, it cannot be said that the evidence compels a
result different from the ALJ's determination.
Francis, supra.
Special Fund v.
For the foregoing reasons, we affirm.
GARDNER, JUDGE, CONCURS.
JOHNSON JUDGE, DISSENTS AND FILES A SEPARATE OPINION.
JOHNSON, JUDGE, DISSENTING.
I respectfully dissent.
would vacate the Board's opinion and remand for specific factual
I
findings by the ALJ.
The ALJ's findings were very limited and
failed to explain the basis for her decision.
Her findings were
as follows:
Based upon the record as a whole, it is
the finding of this ALJ that Plaintiff has
not sustained an occupational disability as a
result of her work-related injury of 7/15/91.
She has returned to work successfully for the
past two years, and has only mild
restrictions from the physicians herein. It
further seems unlikely that Plaintiff's
various and sundry maladies in both of her
arms and shoulders would be the result of the
"pop" in her left wrist. Dr. Hargadon's
assessment that many of Plaintiff's symptoms
may be peripheral neuropathy resulting from
the diabetic condition may perhaps be more in
line with reality.
As to the additional surgeries contested
by the Defendant Employer, same shall not be
the responsibility of the Defendant Employer,
based upon the testimony of Dr. Hargadon that
they would not relieve Plaintiff's symptoms
[emphasis original].
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From these scant findings, it is impossible to determine if the
claim was denied because the ALJ found that Hundley did not
experience an occupational disability or because her occupational
disability was not work related.
I am of the opinion that the ALJ's decision suffers the
same inadequacies as the Board decisions reversed by this Court
in Kentland Elkhorn Coal Corporation v. Yates, Ky.App., 743
S.W.2d 47 (1988), and Shields v. Pittsburg and Midway Coal Mining
Company, Ky.App., 634 S.W.2d 440 (1982).
In Yates the claimant
was found to be suffering from pneumoconiosis by the Board.
This
Court in holding the factual findings to be inadequate stated:
In that the question of medical disability
was sharply disputed, it was again incumbent
upon the Board to set forth a specific
factual basis for its finding that the
appellee did, in fact, suffer from
pneumoconiosis. As stated by the circuit
court in Shields, supra: "the litigants are
entitled to at least a modicum of attention
and consideration to their individual case."
At p. 444.
In effect, the Shields court held that if
the issue of whether the claimant suffers
from pneumoconiosis is sharply disputed by
numerous physicians, the litigants should
have the benefit of knowing the factual basis
for the Board's determination that he does,
in fact, suffer from it. Here, the Board's
finding was woefully inadequate.
743 S.W.2d at 49-50.
As this Court stated in Shields, supra:
It is not the intention of the Court to
place an impossible burden on the Workers'
Compensation Board (now ALJ) but only to
point out that the statute and the case law
require the Board (now ALJ) to support its
conclusions with facts drawn from the
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evidence in each case so that both sides may
be dealt with fairly and be properly apprised
of the basis for the decision.
634 S.W.2d at 444.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, R. R.
DONNELLEY & SONS:
P. Joseph Clarke, Esq.
Danville, KY
G. Kennedy Hall, Jr.
Middleton & Reutlinger
Louisville, KY
BRIEF FOR APPELLEE, SPECIAL
FUND:
Benjamin C. Johnson
Labor Cabinet
Louisville, KY
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