PEPSI COLA OF CORBIN v. PAUL BARTON; ROBERT WHITTAKER, Acting Director of SPECIAL FUND; RICHARD H. CAMPBELL, JR., Administrative Law Judge; and WORKERS' COMPENSATION BOARD AND ROBERT L. WHITTAKER, Acting Director of SPECIAL FUND v. PAUL BARTON; PEPSI COLA OF CORBIN; RICHARD H. CAMPBELL, JR., Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: November 25, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000132-WC
PEPSI COLA OF CORBIN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. 95-36386
PAUL BARTON; ROBERT WHITTAKER,
Acting Director of SPECIAL FUND;
RICHARD H. CAMPBELL, JR.,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
and
NO. 1998-CA-000139-WC
ROBERT L. WHITTAKER,
Acting Director of SPECIAL FUND
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
ACTION NO. 95-36386
PAUL BARTON; PEPSI COLA OF CORBIN;
RICHARD H. CAMPBELL, JR.,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
DYCHE, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge.
Pepsi Cola of Corbin and the Special Fund
appeal from an order of the Workers' Compensation Board that
affirmed an Administrative Law Judge's determination that a back
injury Paul Barton received on January 30, 1992, was work-related.
Paul Barton, who was born on October 30, 1951, worked
for Pepsi Cola from April 1973 through August 1995.
As an
employee for Pepsi Cola, Barton worked in a number of capacities
such as laborer, inventory clerk, route driver, loading crew
supervisor and tractor-trailer driver.
On January 30, 1992,
while driving Pepsi Cola's tractor-trailer along Interstate
Highway 75 north of the Tennessee-Kentucky border, Barton struck
and killed a deer.
He stopped and removed the deer from the
underside of the vehicle and dragged it to the side of the
highway.
Because the deer's carcass was intact, Barton decided
to field dress the deer.
As he was bending down to do so he felt
an excruciating pain in his lower back.1
Barton received chiro-
practic treatment for the injury and missed some six weeks of
work.
Barton submitted a claim for this injury, but Pepsi Cola's
compensation carrier determined that the injury was not workrelated.
On August 8, 1995, Barton injured his cervical spine as
he was cranking a loaded trailer's dolly gears that were "messed
up."
Barton initially received chiropractic treatment for the
injury.
Eventually a neurosurgeon determined that it was neces-
sary to perform an anterior cervical diskectomy and fusion upon
Barton.
Despite this treatment, Barton has continued to suffer
1
Barton noted that field dressing a deer requires no great
exertion, but simply requires cutting open the deer's underside and
letting its entrails roll out.
2
from constant pain and depression.
On September 10, 1996, Barton
filed for workers' compensation disability benefits for the
August 8, 1995, injury.
On July 31, 1997, the ALJ determined
that Barton is totally and permanently occupationally disabled.
The ALJ also determined that 60% of Barton's disability is
attributable to the August 1995 injury and 40% to the January
1992 injury.
Because the ALJ designated the prior injury as pre-
existing and active it was noncompensable within the instant
claim.
However, he adjudged the prior injury to be sufficiently
work-related (notwithstanding that Barton had never filed a
claim) and thus a basis for invoking the principle of TeledyneWirz v. Willhite, Ky. App., 710 S.W.2d 858 (1986), to enhance the
amount and duration of the benefits payable for plaintiff’s 60%
compensable permanent occupational disability, in accordance with
Ky. Rev. Stat. (KRS) 342.730(1)(a).
Pepsi Cola and the Special Fund contend that the ALJ
wrongly determined that Barton's 1992 back injury was workrelated.
Since the Board affirmed the ALJ's decision, it is
necessary to state the standard of review as to both.
As was
explained in Western Hospital v. Kelly, Ky., 827 S.W.2d 685, 68788 (1992), this Court is to correct a decision of the Board only
where it has assessed the evidence so flagrantly as to cause a
gross injustice.
Likewise, under KRS 342.285(2)(d), the Board
shall not substitute its judgment for that of the administrative
law judge as to the weight of evidence on questions of fact, the
Board's review being limited to determining whether or not the
3
decision is clearly erroneous on the basis of the reliable,
probative and material evidence contained in the whole record.
Furthermore, this Court may not disturb a fact finder's
factual determination if there is any substantial evidence to
support it.
Yocum v. Harvey, Ky., 578 S.W.2d 52, 53 (1970).
No
single factor should be given conclusive weight in determining
whether an injury is work-related.
The determination as to
whether or not an injury was work-related is based upon the
aggregate of facts rather than the existence or non-existence of
any particular factor.
Beale v. Hammons, Ky. App., 804 S.W.2d 13
(1990).
In the present case, the ALJ noted that Barton had
engaged in strenuous physical activity in removing the deer
carcass from underneath the tractor-trailer.
Having completed
this physical activity, Barton decided to field dress the deer in
anticipation of later retrieval.
According to the ALJ, the field
dressing of the deer was "nothing more than the final event in a
series of occurrences which emanated from the work in which
plaintiff engaged as an employee of the defendant-employer."
The
ALJ found that "[a]s he 'bent down' to begin that process,
plaintiff experienced severe back pain, the first manifestation
of the injury he suffered that day."
After a review of the record, we conclude that the ALJ
relied upon substantial evidence in determining that Barton's
1992 injury was work-related.
Furthermore, since that injury was
pre-existing and active, his decision to enhance the amount and
4
duration of benefits pursuant to KRS 342.730(1)(a) was correct as
a matter of law.
Accordingly, the Board's affirmation of the ALJ's
determination that Barton's 1992 injury was work-related is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT
PEPSI COLA OF CORBIN:
BRIEF FOR APPELLEE:
John E. Anderson
COLE, COLE & ANDERSON
Barbourville, Kentucky
Kevin R. Mullins
GREENEBAUM DOLL & McDONALD
Louisville, Kentucky
BRIEF FOR APPELLANT
SPECIAL FUND:
Benjamin C. Johnson
Louisville, Kentucky
5
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