BANK ONE v. VICKI BARNA; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 7, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-000543-WC
BANK ONE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-97899
v.
VICKI BARNA;
HON. DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GUIDUGLI, AND MILLER, JUDGES.
MILLER, JUDGE:
Bank One asks us to review an opinion of the
Worker's Compensation Board (Board) entered February 13, 2002.
Kentucky Revised Statutes (KRS) 342.290.
We affirm.
The petition before us emanates from an order of the
Board remanding to the Administrative Law Judge (ALJ) for a
second time.
Barna began working for Bank One as a machine operator
in 1997.
The work required her to sit with a calculator and
computer and place checks in a machine for the purpose of
encoding the amounts thereon.
In November of 1997, she developed
pain in her left upper extremity.
She feared a heart attack.
Ultimately, she was referred to doctors, Amit Gupta, and Erdogan
Atasoy, for treatment.
She was diagnosed as suffering from
“bilateral carpal tunnel syndrome,” and “thoracic outlet
compression.”
She underwent an operation for each condition.
She was seen by Dr. Jeffrey Lawton, who examined her at the
University of Kentucky pursuant to KRS 342.315.
The issue in this appeal, and the issue which has been
plaguing the ALJ, is how to handle the testimony of the Dr. Gupta
and Dr. Atasoy in light of the testimony of Dr. Lawton, the
University Evaluator.
The matter involves Magic Coal Company v.
Fox, Ky., 19 S.W.3d 88 (2000) and the interpretation of KRS
342.315(2).
That statute affords the University Evaluator
presumptive weight.
The ALJ persists in weighing the evidence of Drs. Gupta
and Atasoy, the treating physicians, against the testimony of Dr.
Lawton, the University Evaluator.
In doing so, he finds Barna
suffered a work related occupational disability, and makes an
award accordingly.
of Dr. Lawton.
This is contrary to the finding and testimony
We think the ALJ is in error.
The purpose of the statutory enactment was to eliminate
the battle of experts in compensation cases, wherein each side
was given to marshaling a number of physicians to support its
cause.
The ALJ's balancing of the testimony of the treating
physicians with the University Evaluator simply returns to this
pre-statutory chaos.
In other words, it eliminates the
presumption afforded the University Evaluator under KRS
-2-
342.315(2) and returns us to “square-one” - - - the practice of
marshaling an array of physicians on each side.
This is, of
course, inappropriate.
Our view is that since the enactment of KRS 342.315(2)
and the decision in Magic Coal the unassailed testimony of the
University Evaluator will “carry-the-day.”
It is not a matter
of balancing the testimony and determining that a party might
adduce testimony to outweigh the opinion of the Evaluator.
In the case at hand, it is difficult to believe that
the testimony of Dr. Lawton can be sufficiently denigrated on
remand so as to justify an award to Barna.
Nevertheless, we are
of the opinion that the Board acted correctly in remanding the
case a second time.
For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, VICKI
BARNA:
Walter E. Harding
Louisville, Kentucky
Wayne C. Daub
Louisville, Kentucky
-3-
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