SANDRA TODD v. KENTUCKY RIVER FOOTHILLS DEVELOPMENT COUNCIL, INC.; DONNA H. TERRY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: November 3, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-003046-WC
SANDRA TODD
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-88260
v.
KENTUCKY RIVER FOOTHILLS DEVELOPMENT
COUNCIL, INC.; DONNA H. TERRY,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, EMBERTON AND GUIDUGLI, JUDGES.
EMBERTON, JUDGE: Sandra Todd appeals from an opinion of the
Workers’ Compensation Board upholding the Administrative Law
Judge’s conclusion that she had failed to establish a workrelated injury.
Appellant argues in this appeal that the Board
erred: (1) in refusing to declare the ALJ’s decision “null and
void” due to misconduct on the part of her first attorney; (2) in
failing to find that the evidence before the ALJ compelled a
decision in her favor; (3) in upholding the ALJ’s decision that a
second work-related injury produced no occupational disability;
and (4) in affirming the ALJ’s calculation of her average weekly
wage.
We affirm.
In the prosecution of her claim for workers’
compensation benefits, appellant alleged a work-related injury on
July 27, 1997, while performing her duties as a home health care
aide for appellee, Kentucky River Foothills Development Council.
She testified that on her last assignment of the day she began to
experience low back pain while lifting a five-gallon bucket of
water to water some flowers for a one hundred two-year-old
patient.
Appellant stated that after resting for a few minutes
she was able to finish the job before going home.
Appellant also
testified that the following day she notified her supervisor,
Diane Worthington, that she was feeling bad and would be unable
to work.
Appellant indicated that on the next day, June 29,
1997, she again contacted Worthington to inform her that she had
injured her back.
Although she initially testified that she
immediately saw her family physician, there is some discrepancy
in her testimony as to the date of the injury and the date she
sought medical attention, including August 1, 1997, more than one
month after the alleged incident.
Appellant also testified that
Worthington informed her that she was not eligible for workers’
compensation benefits because she did not report the incident
within twenty-four hours of its occurrence.
Subsequently,
appellant sought and received short term disability benefits.
Upon her return to work, appellant sustained a second injury on
February 17, 1998, while emptying a large garbage can.
-2-
She
promptly reported this incident to Worthington.
Appellant
testified that she had been seeing Dr. John Gilbert because of
the previous injury and although she continued that treatment,
she was also seen by other physicians.
Finally, appellant stated
that she was unable to return to work and suffers constant pain
in her low back.
Worthington’s testimony painted a different picture.
Although she recalled appellant contacting her in June 1997,
indicating that she may have hurt her back at work, Worthington
denied telling appellant that she could not file a workers’
compensation claim.
To the contrary, Worthington testified when
she asked appellant about filing a claim she stated that she did
not want to do so because she didn’t want to see a doctor.
Worthington also testified that appellant told her that she did
not want to see a doctor because she believed her problems were
related to an old injury.
Worthington admitted telling appellant
that she should have reported the injury within twenty-four
hours, but denied ever telling her that she could not file a
workers’ compensation claim.
Through the testimony of Carla
Chapman the employer’s payroll/benefits coordinator, notes taken
by Worthington after the February 27, 1998, injury were
introduced into evidence.
These notes which were signed by
Worthington indicate that appellant’s husband called her on March
2, 1998, stating that appellant had injured her back lifting a
garbage can and that she would need to go back on disability.
Appellant had been on short-term disability from August 11
through mid-September 1997.
Worthington’s notes also indicated
-3-
that both appellant and her husband told her that she did not
want to file for worker’s compensation benefits because she felt
this injury was related to her previous back problems and that
she did not want to see any doctor other than Dr. Gilbert.
After reviewing medical testimony from several
physicians and noting a number of inconsistencies in appellant’s
testimony, the ALJ concluded that appellant had failed to meet
her burden of proving a work-related injury in June 1997.
The
ALJ also concluded that while appellant had sustained an injury
in February 1998, it was merely a temporary aggravation of an
already existing condition.
Therefore, benefits relating to that
injury were limited to the period of temporary total disability
she had experienced from that incident.
Although an arbitrator
who had considered the matter reached a different conclusion,
that decision lost all legal import upon appellant’s request for
a de novo hearing before the ALJ.
As she did before the Board, appellant now seeks relief
from the decision of the ALJ arguing that she was not informed by
her counsel of a request for a de novo hearing and that, had she
been so informed, she would not have agreed to filing such an
appeal.
Although appellant asks for reinstatement of the
decision of the arbitrator, the relief is no longer available to
her.
First, as the Board correctly determined, any disagreement
between appellant and her attorneys cannot be redressed in the
context of her compensation proceeding as the Board lacks
jurisdiction over such matters.
There are other avenues
available to appellant for resolution of her dispute with the
-4-
conduct of her counsel.
Second, once her request for a de novo
hearing pursuant to Kentucky Revised Statutes (KRS) 342.275 had
been lodged, the benefit review determination by the arbitrator
lost all legal effect.
As provided in the analysis of de novo
review set out in Louisville & Jefferson County Planning & Zoning
Com’n v. Grady,1 a de novo hearing means “‘trying the dispute
anew as if no decision had been previously rendered.’” Thus, the
effect of an appeal from a benefit review determination is that
the claim in its entirety is before the ALJ as though there had
been no previous determination.
Therefore, once a de novo
hearing has been conducted, there is no prior determination to
reinstate.
In our opinion, once an appeal is taken from the
benefit review determination, the claim may be resolved only by
the claimant voluntarily dismissing her claim by agreement of the
parties with the approval of the ALJ, or by ALJ decision.2
Next, appellant asserts that the evidence before the
ALJ compelled a finding of a work-related injury in June 1997.
We disagree.
In Western Baptist Hospital v. Kelly,3 the Supreme
Court directed that review of opinions of the Board be limited to
ascertaining whether it “overlooked or misconstrued controlling
statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice.”
Here, because
a review of the record convinces us that the ALJ’s assessment of
the evidence is “neither patently unreasonable nor flagrantly
1
Ky., 273 S.W.2d 563, 565 (1954).
2
See, KRS 342.325.
3
Ky., 827 S.W.2d 685, 687-88 (1992).
-5-
implausible,” we must affirm the Board’s decision.4
It was well
within the prerogative of the ALJ to determine the weight and
credibility to be accorded the evidence received.
As the Board
points out, we are dealing with an unwitnessed accident which was
disputed by various other elements of evidence and thus the ALJ,
drawing reasonable inferences from that evidence, could
legitimately conclude there was no work-related injury.
The same reasoning dispels appellant’s contentions with
respect to the medical evidence which was at best conflicting.
There was ample evidence to support the ALJ’s finding that the
February 1998, injury was merely an aggravation of a pre-existing
condition which did not necessitate an assessment of permanent
occupational disability benefits.5
Finally, we are in complete agreement with the Board
that appellant did not show an error in the computation of her
average weekly wage based upon the failure to include the $100
per week she received for work performed by “Todds’ Cleaning.”
Although she correctly states that the average weekly wage may be
increased by proof of concurrent employment, appellant failed to
prove entitlement to any increase.
The testimony clearly
indicates that checks were issued in the name of appellant’s son
and while there is evidence that she may have been present while
the work was being performed, it falls short of mandating a
finding that she received pay for this work.
4
827 S.W.2d at 688.
5
Calloway County Fiscal Court v. Winchester, Ky., 557
S.W.2d 216 (1977).
-6-
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE KENTUCKY
RIVER FOOTHILLS DEVELOPMENT
COUNCIL, INC.:
Kaye L. Leighton
Mt. Sterling, Kentucky
William H. May III
Louisville, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.