GREG GRAHAM v. OFFLOADERS UNLIMITED, INC.; HON. KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
NOVEMBER 9, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000506-WC
GREG GRAHAM
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-00-83161
v.
OFFLOADERS UNLIMITED, INC.;
HON. KEVIN KING, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Greg Graham has petitioned for review of an
opinion of the Workers’ Compensation Board, which affirmed the
opinion of the Administrative Law Judge, which dismissed Graham’s
claim pursuant to KRS1 342.165(2) based upon findings that he
falsely represented his physical condition and medical history on
an employment application, that his employer, Offloaders
Unlimited, Inc., had substantially relied upon those
misrepresentations when hiring him, and that his subsequent
1
Kentucky Revised Statutes.
injury was causally related to those misrepresentations.
Having
concluded that the ALJ’s findings of fact are supported by
substantial evidence, we affirm.
Graham started working for Offloaders, a business that
specializes in unloading trucks at warehousing facilities, on
March 27, 2000.
As part of the hiring process, he completed an
employment application in which he indicated that he could lift
up to 90 pounds on a continual basis.
On the same application,
Graham also denied having any prior injuries to his lower back.
Contrary to the representation on his employment
application, Graham had sought treatment for low back injuries in
1996.
He was diagnosed with significant herniated discs at the
L3-4, L4-5, and L5-S1 regions of his lower back.
Following
lumbar disc surgery to treat Graham’s condition, his doctor
instructed him to find alternative employment which did not
involve heavy lifting.
On May 1, 2000, approximately one month after starting
work for Offloaders, Graham injured his back while unloading a
truck.
Offloaders disputed the allegations of injury, and Graham
filed a claim for workers’ compensation benefits on June 19,
2000.
The ALJ dismissed Graham’s claim pursuant to KRS
342.165(2), which provides:
(2) No compensation shall be payable for
work-related injuries if the employee at the
time of entering the employment of the
employer by whom compensation would otherwise
be payable falsely represents, in writing,
his physical condition or medical history, if
all of the following factors are present:
(a) The employee has knowingly and willfully
made a false representation as to his
physical condition or medical history;
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(b) The employer has relied upon the false
representation, and this reliance was a
substantial factor in the hiring; and
(c) There is a causal connection between the
false representation and the injury for which
compensation has been claimed.
Graham appealed the ALJ’s dismissal to the Board and
argued that the ALJ erred in finding a causal connection between
his false representations and the injury for which he claimed
compensation.
Graham specifically asserted that because no
direct medical evidence linked his preexisting condition to the
cause of his current injury, a causal connection could not exist
as a matter of law.
The Board unanimously affirmed the opinion
of the ALJ, ruling that the ALJ’s determination was supported by
substantial evidence.
This petition for review followed.
Since Graham concedes that he misrepresented his
physical condition and medical history to Offloaders and that his
misrepresentations were a substantial factor in Offloaders’s
decision to hire him, the first two prongs of the statute were
met.
Graham argues that under the third requirement the ALJ
erred in finding a causal connection between his false
representations and the claimed injury.
Specifically, Graham
challenges the sufficiency of the evidence upon which the ALJ
based his decision.
Graham argues that a causal connection, as a
matter of law, cannot exist in the absence of direct medical
evidence of that connection.
Since Offloaders was attempting to defeat Graham’s
claim by invoking the prohibition provided for in KRS 342.165(2),
it had the burden of proof on this issue.
“When the decision of
the fact-finder favors the person with the burden of proof, his
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only burden on appeal is to show that there was some evidence of
substance to support the finding, meaning evidence which would
permit a fact-finder to reasonably find as it did.”2
A finding
of the ALJ on a question of fact will not be disturbed on appeal
if there is substantial evidence to support it.3
“Substantial
evidence has been conclusively defined by Kentucky courts as that
which, when taken alone or in light of all the evidence, has
sufficient probative value to induce conviction in the mind of a
reasonable person.”4
This Court’s function in reviewing the
Board’s decision 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.”5
The record before the ALJ contained conflicting
evidence.
Graham’s medical records indicate that in 1996 he
suffered herniated discs at the L3-4, L4-5, and L5-S1 regions of
his lower back.
Graham’s records further indicated that Dr.
Richard Jelsma, his neurosurgeon, cautioned him at that time
against taking a job which required heavy lifting.6
2
Dr. Jelsma
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
3
Jackson v. General Refractories Co., Ky., 581 S.W.2d 10, 11
(1979).
4
Bowling v. Natural Resources, Ky.App., 891 S.W.2d 406, 409
(1994)(citing Kentucky State Racing Commission v. Fuller, Ky.,
481 S.W.2d 298, 308 (1972); and Blankenship v. Lloyd Blankenship
Coal Co., Inc., Ky., 463 S.W.2d 62 (1970)).
5
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-88 (1992).
6
In his records, dated March 27, 1996, Dr. Jelsma stated:
(continued...)
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undoubtedly gave this advice because Graham’s physical condition
made him more prone to lower back injuries.
Graham was referred to Dr. Martyn A. Goldman, an
orthopedic surgeon, for an Independent Medical Examination.
In a
report dated September 18, 2000, Dr. Goldman stated that “an MRI
with gadolinium would be appropriate to define whether or not
there has been a significant change in the bulging disk at L4-5
noted on his previous studies in 1996.”
In regard to Graham’s
low back condition in 1996, Dr. Goldman testified that he would
have limited Graham to “[n]o bending forward with the knees
straight, no lifting of more than 25 to 35 pounds.”
He stated
“those are the same restrictions I gave anyone I operated upon
for a ruptured dis[c].”
He further testified that “[a]nyone who
has had lumbar dis[c] surgery and would entertain lifting 90
pounds on a repeated basis is almost guaranteed to have further
trouble.”
For a period of time, Graham followed Dr. Jelsma’s
advice and pursued a sedentary career as a security guard.
6
(...continued)
The patient has midline herniated discs
at L3-L4, L4-L5 and L5-S1. Any one or all of
these could be symptomatic disc.
. . .
For the long term this patient will need
to change his work. He is lifting 50-70 lbs.
continually at work and will need to change
to light or sendentary work permanently.
Otherwise he is very likely to have
increasing problems with his lower back
leading to disability.
On May 30, 1996, Dr. Jelsma performed a lumbar disc excision of
L5-S1 left.
-5-
During this span of employment, Graham remained injury-free.
In
fact, the record shows that Graham did not incur a work-related
injury until he took the position with Offloaders where
considerable strain was placed on his back.
Based on our review of the record, we hold that the
ALJ’s determination was supported by substantial evidence.
While
it might have been desirable to have had direct evidence from a
physician based on reasonable medical probability that Graham’s
current injury is related to his condition which existed before
he took employment with Offloaders, we must recognize the
authority vested in the ALJ to draw a reasonable inference from
the evidence.
The ALJ has the sole authority to judge the
weight, credibility, substance and inferences to be drawn from
the evidence.7
“[W]hen more than one reasonable inference can be
drawn from the evidence, it is for the fact-finder to decide.”8
It is not the role of the appellate courts “to decide questions
regarding reasonable inferences from the evidence.”9 Considering
the medical testimony of Dr. Jelsma and Dr. Goldman in light of
all the other evidence in the case, we believe it was reasonable
for the ALJ to find a causal connection between Graham’s false
representations and his current injury.10
7
Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418,
419 (1985); Roberts v. Estep, Ky., 845 S.W.2d 544, 547 (1993).
8
Whitaker Coal Co. v. Melton, Ky.App., 18 S.W.3d 361, 365
(2000)(citing Jackson, supra).
9
Western Baptist, supra at 687.
10
See Guttermuth v. Excel, Ky., 43 S.W.3d 270, 273 (2001).
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For the foregoing reasons, the opinion of the Board is
affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE, OFFLOADERS
UNLIMITED, INC.:
Wayne C. Daub
Louisville, KY
Judson F. Devlin
Louisville, KY
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