KENTUCKY MIRROR & PLATE GLASS v. CHRISTOPHER DERRICK BRIAN; DONNA H. TERRY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED:
April 13, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-000691-WC
KENTUCKY MIRROR & PLATE GLASS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-98-63785
v.
CHRISTOPHER DERRICK BRIAN;
DONNA H. TERRY, Administrative
Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON and GUIDUGLI, Judges.
HUDDLESTON, Judge.
Kentucky Mirror & Plate Glass appeals from a
Workers’ Compensation Board opinion affirming an Administrative Law
Judge’s award of temporary total disability benefits to Christopher
Derrick Brian.
Kentucky Mirror contends that the ALJ erred in
finding that substantial evidence supported Brian’s claim that a
traumatic event was the proximate cause of his injury.
Brian was a glazer for Kentucky Mirror.
On August 20,
1998, he was carrying a 250 pound I-beam with another worker when
he fell.
The beam landed on his right knee.
He experienced pain
immediately and began limping.
However, he continued to work.
After sitting for lunch, his right ankle began to swell and ache.
He sought emergency treatment and was referred to Dr. Gregory
Rennirt.
Dr. Rennirt diagnosed a soft tissue abrasion of the right
knee and an osteochondritis dissecans (OCD) lesion of the right
ankle.
On September 23, 1998, Dr. Rennirt removed the lesion
surgically.
Eventually, Brian was released by Dr. Rennirt to
return to work without restrictions.
Dr. Rennirt testified that 70% of OCD problems are trauma
related and that it was likely that the August 20, 1998, accident
was the precipitating event causing pain and requiring surgery. In
addition to the testimony of Dr. Rennirt, the ALJ heard testimony
from Dr. Bart Goldman, an orthopedic surgeon who performed a
medical records review for Kentucky Mirror.
Dr. Goldman concluded
that the osteochondritis dissecans lesion did not occur at the time
of the August 20, 1998, injury.
However, Dr. Goldman also stated
that the lesion could have pre-existed the injury and could have
been brought into clinical reality by the injury.
The ALJ found Dr. Rennirt’s testimony convincing and
authoritative. The ALJ specifically found that Brian had sustained
his burden of proving that the August 20, 1998, incident was the
proximate cause of his right ankle complaints and that he was
entitled to benefits for the ankle injury.
-2-
The ALJ also stated
that this accident clearly fits the statutory definition of injury
adopted in Kentucky Revised Statute (KRS) 342.0011(1).1
Kentucky Mirror argues that the August 20, 1998, accident
was not the proximate cause of Brian’s injury.
Its position is
that the accident was merely a contributing factor that allowed the
lesion to become clinically apparent.
Young
v.
McDonald2
where
the
It directs our attention to
Supreme
Court
denied
a
worker
compensation for “the arousal into disabling reality of the preexisting,
dormant,
nondisabling
disease
of
coronary
atherosclerosis.”3 However, the McDonald case is not applicable to
the case under consideration.
In McDonald, the Court noted that
there was “no probative evidence of an injury by accident . . .
without which there can be no liability on the employer . . . .”4
Unlike McDonald, this case involves evidence of an injury by
accident.
Kentucky Mirror also directs our attention to Sowders v.
Mason Dixon Lines, Inc.,5 in which the Supreme Court stated that,
“the
employer
is
not
liable
for
symptomatic
1
—
even
possibly
KRS 342.0011(1) provides, in relevant part, that:
"’Injury’ means any work-related traumatic event or series of
traumatic events, including cumulative trauma, arising out of and
in the course of employment which is the proximate cause producing
a harmful change in the human organism evidenced by objective
medical findings.”
2
Ky., 481 S.W.2d 41 (1972).
3
Id. at 42.
4
Id. at 42. [Emphasis in original.]
5
Ky., 579 S.W.2d 380 (1979).
-3-
disabling — pain arising from a diseased condition which is not
causally attributable to work performance or working conditions.”6
However, Kentucky Mirror has failed to take notice of the
additional statement in Sowders concerning the facts of that case
in
relation
to
the
outcome.7
The
Court
stated
that
“[h]ad
[Sowders] suffered permanent damage to his heart muscle and proved
that the physical strain of his job precipitated the injury, the
outcome of this case could well have been different.”8
In
the
case
under
consideration,
Brian
successfully
proved that the injury to his ankle was due to the physical strain
of the I-beam’s impact.
In fact, the ALJ noted that in finding
that the accident was the proximate cause of the ankle problem,
this was not even a close call.
Our function, in reviewing the decision of the Workers’
Compensation Board “is to correct the Board only where the [] 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.”9
Kentucky
Mirror has failed to point to anything in the Board’s decision that
meets this threshold. Kentucky Mirror simply disputes the findings
of the ALJ as its sole basis of attack on the Board’s decision.
The Board’s decision is affirmed.
6
Id. at 382.
7
The
Board
denied
benefits
to
Sowders
and
the
Court
affirmed.
8
Id. at 381-382.
9
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-688 (1992).
-4-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
CHRISTOPHER DERRICK BRIAN:
James G. Fogle
FERRERI & FOGLE
Louisville, Kentucky
Ched Jennings
Louisville, Kentucky
-5-
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