LINDSEY CRUM v. FLOYD COUNTY BOARD OF EDUCATION; HON. J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: October 13, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000525-WC
LINDSEY CRUM
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-97921
v.
FLOYD COUNTY BOARD OF EDUCATION;
HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, MILLER AND TACKETT, JUDGES.
TACKETT, JUDGE:
Lindsey Crum (Crum) petitions for review of a
decision of the Workers’ Compensation Board (the Board) affirming
the opinion and award of an administrative law judge (ALJ).
We
affirm.
Crum was employed by respondent, Floyd County Board of
Education, as a maintenance technician when he fell off of a
ladder and fractured the fifth metatarsal of his right foot.
However, the fracture was not discovered until some months later,
when an x-ray of the foot was taken by Dr. Timothy Webb in
conjunction with treatment for another condition.
Crum was not
aware of the fracture due to a lack of feeling in his foot as a
result of diabetes.
Crum later filed a claim for workers’
compensation benefits and the ALJ awarded Crum benefits based
upon the fracture, but denied benefits for Crum’s Charcot’s
joint.1
Crum’s petition for reconsideration was denied, after
which he appealed to the Board.
The Board affirmed the ALJ,
after which Crum filed this petition for review.
Crum argues that the ALJ erred by denying him benefits
for his Charcot joint.
As the claimant, Crum “bears the burden
of proof and risk of nonpersuasion before the fact-finder [ALJ]
with regard to every element of the claim.”
Rowland, Ky., 998 S.W.2d 479, 481 (1999).
Whittaker v.
The ALJ has the “sole
discretion to determine the quality, character, and substance of
[the] evidence. . . .”
Id.
The ALJ “may reject any testimony
and believe or disbelieve various parts of the evidence,
regardless of whether it came from the same witness or the same
adversary party’s total proof. . . .”
Id.
Since Crum was
unsuccessful before the ALJ:
[O]n appeal he must prove that the evidence compels a
finding in his favor. Paramount Foods v. Burkhardt,
Ky., 695 S.W.2d 418 (1985). To be compelling, evidence
must be so overwhelming that no reasonable person could
reach the same conclusion as the ALJ. REO Mechanical
1
Charcot’s joint is defined as joint “enlargement with
osteoarthritis due to trophic disturbances in patients with tabes
dorsalis.” Stedman’s Medical Dictionary 734 (4th ed. 1976).
Trophic is defined as “[r]esulting from interruption of nerve
supply.” Id. at 1488. Tabes dorsalis is “a chronic inflammation
and progressive sclerosis of the posterior proximal spinal roots,
the posterior columns of the spinal cord, and the peripheral
nerves. . . . [T]rophic disorders of the joints (arthropathies)
are frequent, and paralysis is a late symptom[.]” Id. at 1399.
-2-
v. Barnes, Ky. App., 691 S.W.2d 224 (1985). If the
decision of the ALJ is supported by any substantial
evidence of probative value, it cannot be reversed on
appeal. Special Fund v. Francis, Ky., 708 S.W.2d 641
(1986).
Daniel v. Armco Steel Company, L.P., Ky. App., 913 S.W.2d 797,
799-800 (1995).
Crum relies upon the testimony of Dr. Webb to support
his contention that he was entitled to benefits for his Charcot
joint condition, which Crum alleges occurred as a result of the
work-related fracture.
When asked as to the cause of Crum’s
Charcot joint condition in his deposition, Dr. Webb replied: “I
suspect in this case it could possibly have been the fracture of
the fifth metatarsal which caused increased weight bearing on the
remaining metatarsal that could have thrown the metatarsal
cuneiform joint into improper alignment.”
Later in his
deposition, Dr. Webb stated that Crum’s fracture was a causative
factor in his Charcot joint condition.
Confusingly, Dr. Webb
also testified that “[i]f you’re asking me if it’s with
reasonable probability that his result of his foot now is not
from a cause of the earlier [work-related] injury, I would agree
with that.”
Dr. Webb’s testimony is confusing and contradictory.
The ALJ could have relied on selected portions of that testimony
to find that Crum’s Charcot joint condition was caused by the
fracture.
However, the ALJ had the sole power to determine the
“quality, character, and substance” of the evidence.
supra.
Rowland,
Furthermore, Dr. Michael Kyles specifically found that
“Crum[s] foot pathology is directly related to his diabetes which
-3-
is not caused from a traumatic injury.
Therefore, no
relationship exist[s] between his [Crum’s] current problem and
his injury [fracture]. . . .”
Even if Dr. Webb’s testimony is
viewed in a light most favorable to Crum, Dr. Kyles’s report
means that the record does not compel a different result.
Thus,
the ALJ’s decision is supported by substantial evidence and may
not be disturbed on appeal.
Daniel, supra.
The Workers’ Compensation Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, FLOYD
COUNTY BOARD OF EDUCATION:
Thomas W. Moak
Prestonsburg, Kentucky
Paul E. Jones
Pikeville, Kentucky
-4-
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