FOOD EXPRESS v. LINDA MEADE; SPECIAL FUND; HON. RICHARD H. CAMPBELL, JR., ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
October 30, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-002187-WC
FOOD EXPRESS
APPELLANT
v.
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-005492
LINDA MEADE;
SPECIAL FUND;
HON. RICHARD H. CAMPBELL,
JR.,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
GUIDUGLI, JOHNSON and SCHRODER, Judges.
GUIDUGLI, JUDGE:
Food Express appeals the Workers’ Compensation
Board’s (Board) opinion which affirmed the Administrative Law
Judge’s (ALJ) award to Linda Meade (Meade) for a forty percent
(40%) occupational disability.
Food Express appeals claiming
that Meade had failed to prove that she sustained a work-related
injury and that there was insufficient medical evidence as to
causation.
Food Express contends that the ALJ’s decision was not
based upon the evidence and thus, arbitrary and an abuse of
discretion.
Finding no error, we affirm.
Meade was born January 12, 1957, is a high school
graduate but has no specialized or vocational training.
She was
employed by Food Express as a food preparer and kitchen worker
whose duties included stocking and cleaning the dining areas and
bathrooms of a fast-food facility (Burger King) to which she was
assigned.
On February 1, 1996, Meade was bringing containers of
soft drink syrup from the stockroom when she suffered an onset of
pain that extended from the left lower quadrant of her back into
her abdominal area and left hip and leg.
She informed her crew
leader of the pain and left work unable to continue working that
day.
She has not returned to work.
By the late evening of February 1, 1996, the pain had
become so severe that Meade sought treatment at the emergency
room of the local hospital.
Although admitted to the hospital,
she left the next morning signing out against medical advise.
Over the next two weeks she was treated at the regional hospital
on two separate occasions for severe back pain and had an MRI
performed.
On February 19, 1996, Meade eventually came under the
case of Dr. Leon J. Ravvin, a neurosurgeon, who diagnosed back
and left leg pain due to an L4-5 disc herination.
The next day,
February 20, 1996, Dr. Ravvin performed an L4-5 discetomy
surgical procedure.
The surgery also revealed a prominent
central bulge at L1-2 and a spur to the left of L5-S1.
-2-
The ALJ, after reviewing the evidence from Meade
including her testimony by deposition and at the hearing, as well
as, the medical evidence from Dr. Ravvin and Dr. Daniel D. Primm,
Jr., determined that Meade “indeed suffered a work related injury
on February 1, 1996, while lifting and maneuvering cartons of
soft drink syrup and, per the evidence from Dr. Ravvin, that such
injury precipitated the L4-5 disc herination, which accounts for
her current impairment and limitations.”
The ALJ further
concluded that Meade suffered a forty percent (40%) occupational
disability.
Food Express appealed to the Board contending that
there was a lack of medical evidence as to causation in the
record which would require reversal of the ALJ’s decision.
Specifically, Food Express alleged that Meade did not initially
tell anyone that the back pain was caused by a work injury.
In
fact, she denied sustaining any “injury” when giving a medical
history at the two (2) hospitals.
Dr. Primm, who performed an
independent medical examination at the request of Food Express,
stated that based upon the medical record as filed Meade’s
condition is not related to any work event.
However, the Board in affirming the ALJ found that the
ALJ made findings relevant to the causation issue as follows:
Nevertheless, Dr. Ravvin’s progress notes for
his February 19, 1996 examination of
plaintiff [Meade] reflects the following
notation: ‘She dates her symptoms to a work
event which involved heavy lifting at Burger
King on February 1, 1996. Further, plaintiff
[Meade] explained that she initially thought
-3-
her back and leg pain was attributable to
arthritis and that she did not want to report
a work injury until she was certain one had
occurred.
Based upon the ALJ’s review of Dr. Ravvin’s medical report, the
Board found that:
The history given to Dr. Ravvin by Meade
at the time of his initial examination, 18
days following the asserted work-related
injury, was considered significant by the ALJ
and we agree that to determine otherwise
would diminish weight to be given to medical
testimony which, by its very nature in
determining causation, necessarily relies on
historical information provided by a patient.
While Food Express argues that the
evidence here clearly does not rise to the
level necessary for establishing causation,
we are mindful that the question of causation
is generally reserved for a fact-finder, as
long as the findings are supported by
substantial evidence. Parker Seal Co. v.
Russell, Ky., 487 S.W.2d 280 (1972).
Substantial evidence has been defined as
“evidence of substance and relevant
consequence having the fitness to induce
conviction in the minds of reasonable men.”
Smyzer v. B. F. Goodrich Chem. Co., Ky., 474
S.W.2d 367 (1971). The question thus becomes
whether the medical testimony as to causation
provided sufficient support for the findings
of the ALJ. Findings can be supported by
direct, presumptive or circumstantial
evidence, but there must be some legal proof.
Blair Fork Coal Co. v. Blankenship, Ky., 416
S.W.2d 716 (1967).
*
*
*
The ALJ’s conclusion that there was a
causal nexus between employment and the
herniated disc to Meade’s back is supported
by substantial evidence. Where the decision
of the ALJ is supported by any evidence of
substance, it may not be reversed on appeal.
Special Fund v. Francis, Ky., 708 S.W.2d 641
(1986); Holman Enter. Tobacco Whse. v.
-4-
Carter, Ky., 536 S.W.2d 461 (1976); Miller’s
Lane Concrete Co., Inc. v. Dennis, Ky.App.,
599 S.W.2d 464 (1980). Further, the ALJ, as
fact-finder, has the sole authority to judge
the weight, credibility, substance, and
inferences to be drawn from the evidence.
Paramount Foods, Inc. v. Burkhardt, Ky., 695
S.W.2d 418 (1985); Kentucky Carbon Corp. v.
Dotson, Ky.App., 573 S.W.2d 368 (1978).
Here, the ALJ was persuaded by the credible
evidence from Meade in combination with the
history provided to Dr. Ravvin, her operating
surgeon, that the herniated disc, indeed, was
causally related to the February 1, 1996
work-related incident in which she sustained
a back injury.
On appeal, Food Express makes the same or very similar
argument as it did before the Board.
As stated in Western
Baptist Hosp. v. Kelly, Ky., 827 S.W.2d 685 (1992), “[t]he
function of further review of the WCB (Board) in the Court of
Appeals is to correct the Board only where the the (sic) 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.”
We agree with the Board that the ALJ’s conclusion that
there was a casual nexus between employment and the herniated
disc to Meade’s back is supported by substantial evidence.
Hence, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
H. Douglas Jones
Kenneth J. Dietz
Covington, KY
Eric C. Conn
Stanville, KY
BRIEF FOR SPECIAL FUND:
Benjamin C. Johnson
-5-
Louisville, KY
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