CARROLL PERDUE v. WRIGHT TRUCKING CO.; SPECIAL FUND; HONORABLE VONNELL TINGLE, ARBITRATOR; HONORABLE JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000761-WC
CARROLL PERDUE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 96-78464
v.
WRIGHT TRUCKING CO.; SPECIAL FUND;
HONORABLE VONNELL TINGLE, ARBITRATOR;
HONORABLE JAMES L. KERR, ADMINISTRATIVE
LAW JUDGE; and WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, MCANULTY, AND SCHRODER, JUDGES.
DYCHE, JUDGE:
The sole question involved herein is the extent of
appellant’s disability.
Appellant, Carroll Perdue, was employed
by Wright Trucking Co. as a driver hauling coal when his truck
was struck by a loader, with the bucket of the loader protruding
through the driver’s side window.
Perdue was apparently injured
in an attempt to avoid being decapitated by the loader’s bucket.
He filed a claim for workers’ compensation benefits and
supported his claim with the testimony of Dr. Paul K. Gardner, a
neurosurgeon, who assessed his impairment at 15%, and found that
it would be inadvisable for him to return to his occupation;
unfortunately, Dr. Gardner’s credibility is somewhat impaired by
his statement that Perdue was a coal miner rather than a truck
driver.
Dr. E. V. Schaffer performed an independent medical
examination, and found “minimal” impairment, suspecting
malingering or psychologic overlay.
Dr. Schaffer opined that
Perdue could return to work without restriction “after a period
of time” (about eight weeks).
The employer presented the report of Dr. Ellen Ballard,
who found a 10% impairment, and placed restrictions of no
repetitive bending, and no lifting of more than 50 pounds.
A vocational expert reported, based on information from
Dr. Gardner and Perdue himself, that he could perform no work
activity.
When informed of Dr. Ballard’s findings, he stated
that such findings would indicate a 30-40% loss of access to the
local labor market.
The Administrative Law Judge (“ALJ”) found Perdue to
have a 40% permanent partial disability.
Perdue appeals,
asserting that he is totally and permanently disabled.
He has
the burden of proof on this appeal, and must show that the
evidence compels a finding in his favor.
Burkhardt, Ky., 695 S.W.2d 418 (1985).
Paramount Foods v.
If the ALJ’s finding is
supported by substantial evidence, a different result cannot be
compelled.
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986).
As indicated above, we have examined the entire record,
and find substantial evidence to support the ALJ’s decision, and
-2-
the Board.
favor.
The evidence does not compel a finding in Perdue’s
There is no flagrant error in assessing the evidence, or
any misconstruction of the law.
Western Baptist Hospital v.
Kelly, Ky., 827 S.W.2d 685 (1992).
The opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
WRIGHT TRUCKING COMPANY:
Dick Adams
Wm. Clint Prow
Madisonville, Kentucky
William P. Swain
Douglas A. U’Sellis
Louisville, Kentucky
BRIEF FOR APPELLEE
SPECIAL FUND:
David R. Allen
Louisville, Kentucky
-3-
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