TERRY HARRINGTON v. TFE GROUP; HON. LAWRENCE F. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: May 14, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2003-CA-002053-WC
TERRY HARRINGTON
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-82353
TFE GROUP;
HON. LAWRENCE F. SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MINTON, JUDGES.
BUCKINGHAM, JUDGE.
Terry Harrington petitions for review of an
opinion of the Workers’ Compensation Board affirming the
decision of the administrative law judge that dismissed
Harrington’s claim for workers’ compensation benefits based on
his failure to prove causation sufficient to establish a workrelated injury.
We affirm.
Harrington is 51 years old with a high school
education and a work history as a security manager, a paste
maker at a factory, a stock worker, and a sales clerk.
In June
1999, he became employed as a material handler operating a
powerjack at TFE Group’s warehouse in northern Kentucky, which
processes orders for and distributes apparel products.
A
powerjack is a battery-powered forklift with the forks at the
rear that is used to move stacks of products on a skid from the
receiving area to storage areas inside the warehouse.
Because
Harrington was left-handed, he typically operated the powerjack
by standing on the side of the front platform, holding on to a
bar with his right hand and using his left hand to manipulate
the controls for steering, raising, and lowering the forks.
The
distance from the platform of the powerjack to the floor is
approximately 10-11 inches.
On Monday and Tuesday, June 3 and 4, 2002, Harrington
was on sick leave after notifying TFE personnel that he had a
severe sunburn.
June 5.
Harrington reported for work at 6:00 a.m. on
Later in the morning, he told his supervisor, Tammy
Zachary, that he had injured his back stepping off his powerjack
as he was taking a scheduled fifteen-minute break from work.
stated that he felt as if he was going to turn his right ankle
He
as he was stepping down, so he jerked to the left to
counterbalance his weight, and then felt a “twinge” of pain in
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his back.
Harrington did not fall and was able to walk to the
breakroom, but he experienced increasing pain and numbness in
his low back and right leg as he sat there.
After attempting to return to work on his powerjack
for approximately 15-20 minutes, Harrington went to Zachary
complaining of pain and reported the incident.
Zachary notified
Kelly Throckmorton, TFE’s Human Resources Manager, who
instructed her to have Harrington taken to the hospital, where
he was examined and released with a prescription for pain
medication.
Harrington returned to the warehouse for a short
time where he was interviewed by Throckmorton about the
incident.
In July 2003, Jeff Weaver, an investigator for TFE’s
insurance carrier, interviewed Harrington and asked him to
recreate the incident.
As part of its investigation, TFE
developed a videotape from the series of time-lapse photographs
taken by security cameras of Harrington’s movements around the
time of the alleged incident.
Harrington was initially treated conservatively with
medication and physical therapy.
The results from a magnetic
resonance imaging (MRI) procedure performed on June 24, 2002,
revealed a herniated disc in the lumbar spine at the L3-L4 level
with a free disc fragment migrating superiorly and to the right
lying in the medial aspect of the L3-L4 foramen resulting in L3
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radiculopathy and pressure on the thecal sac.
In July 2002,
Harrington was referred to Dr. Lester Duplechan, a neurologist,
who performed epidural steroid injections, which were
unsuccessful.
5 incident.
Harrington did not return to work after the June
He eventually underwent surgery to remove the disc
fragment.
Harrington received temporary total disability
benefits and medical benefits from June 6, 2002, to July 10,
2002.
However, on July 16, 2002, TFE’s workers’ compensation
carrier notified him that these benefits would be terminated and
his claim for further benefits was being denied based on a
conclusion following its investigation that his injury did not
arise out of and in the course of his employment.
On October 6, 2002, Harrington filed an Application
for Resolution of Injury Claim seeking benefits for a workrelated injury to his spine that allegedly occurred when he
stepped off his powerjack on June 5, 2002.
He filed a motion to
bifurcate the issues of causation and permanent disability with
the causation issue being decided first.
TFE did not object to
the motion, noting its position that Harrington did not injure
his back at work on June 5, 2002.
The ALJ granted the motion,
and the case proceeded on the issue of causation alone.
The
parties then took the depositions of Harrington, Throckmorton,
Zachary, and Weaver.
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On January 29, 2003, Dr. Kenneth Graulich performed an
independent medical evaluation of Harrington on referral from
TFE.
In his report, Dr. Graulich diagnosed Harrington as
suffering from a herniated disc with a free fragment and right
radiculopathy.
He stated that Harrington’s “description of the
mechanism of injury is compatible with the MRI scan findings,
clinical symptoms, and physical examination findings.”
Given
this compatibility, Dr. Graulich tentatively concluded that
Harrington’s condition was causally related to the incident at
work.
However, he did not believe the incident alone would have
caused an injury severe enough to herniate a normal disc, so he
felt Harrington must have had significant underlying
degenerative disc disease.
In February 2003, Dr. Graulich reviewed the time-lapse
videotape of June 5 and a time-line description prepared by TFE.1
After viewing the videotape, Dr. Graulich modified his opinion,
stating that any injury Harrington may have suffered from the
incident stepping off the powerjack would have been trivial and
that the main cause for his herniated disc was likely
degenerative arthritis.
Dr. Graulich also opined that
Harrington’s claim of severe sunburn as the reason for missing
the two previous days of work was suspicious and more likely due
to back pain from his underlying degenerative arthritis.
1
The videotape is not included in the record on appeal.
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On March 27, 2003, the ALJ conducted a hearing with
Harrington as the only witness.
On May 21, 2003, the ALJ
entered an opinion and order dismissing the workers’
compensation claim.
The ALJ held that Harrington had not
satisfied his burden of proving that he suffered a work-related
injury on June 5, 2002.
The ALJ believed there were inconsistencies in
Harrington’s description of the incident, and he questioned
Harrington’s assertion that he had experienced severe sunburn on
the prior weekend.
As support for this latter finding, the ALJ
mentioned climatological records showing that both weekend days
were relatively cloudy, testimony from two witnesses (presumably
Zachary and Throckmorton) who saw Harrington on June 5 that
indicated “he had no signs of any sunburn,” and the fact that
Harrington neither sought nor received any medical care for his
sunburn.
The ALJ also noted that Jeffrey Weaver stated that
Harrington could not recreate the injury incident during his
interview of him.
The ALJ concluded:
From my review of this record including all
other reports and deposition testimony and
from my observations of the demeanor of the
witness and the formal hearing, I remain
unpersuaded that Mr. Harrington’s back
injury is a result of the actions he
described at the workplace on June 5, 2002.
I agree with Dr. Graulich that it would be
more likely to conclude he missed work
because he was having back pain – a common
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occurrence in his age group with such severe
underlying degenerative arthritis.
Harrington filed a petition for reconsideration, which was
summarily denied.
On September 10, 2003, the Board entered an opinion
affirming the ALJ’s decision.
While acknowledging weaknesses in
the evidence submitted by both parties, the Board characterized
its role as determining whether the inferences drawn by the ALJ
were reasonable.
It stated:
Although only by the barest of margins,
we cannot legally say the ALJ’s conclusions
with regard to these questions are totally
without merit. The fact that this Board or
another fact finder might have interpreted
the evidence differently does not matter in
the law’s mind’s eye. When the testimony of
Throckmorton and Weaver is considered along
with Dr. Graulich’s conclusions of February
28, 2003, and the ALJ’s statement that he
did not find Harrington to be a particularly
credible witness, the matter is entirely one
of assignment of weight and credibility by
the fact-finder. While we may be
sympathetic to the frustrations expressed by
Harrington in this appeal, as a matter of
law, we must affirm.
In a workers’ compensation action, the claimant bears
the burden of proving by substantial evidence every essential
element of a claim.
Burton v. Foster Wheeler Corp., Ky., 72
S.W.3d 925, 928 (2002); Magic Coal Co. v. Fox, Ky., 19 S.W.3d
88, 96 (2000).
Among those elements are that a work-related
injury proximately caused the impairment resulting in
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occupational disability, see, e.g., Jones v. Newberg, Ky., 890
S.W.2d 284 (1994) and KRS 342.0011(1) and (11), and the extent
and duration of the injury, see Stovall v. Collett, Ky. App.,
671 S.W.2d 256 (1984), and Codell Const. Co. v. Dixon, Ky., 478
S.W.2d 703 (1972).
by the fact-finder.
Causation is a factual issue to be decided
Coleman v. Emily Enterprises, Inc., Ky., 58
S.W.3d 459, 462 (2001).
As the fact-finder, the ALJ has the authority to
determine the quality, character, and substance of the evidence.
Burton, 72 S.W.3d at 928; Square D Co. v. Tipton, Ky., 862
S.W.2d 308, 309 (1993).
Similarly, the ALJ has the sole
authority to determine the weight and inferences to be drawn
from the evidence.
Miller v. East Kentucky Beverage/PepsiCo,
Inc., Ky., 951 S.W.2d 329, 331 (1997); Luttrell v. Cardinal
Aluminum Co., Ky. App., 909 S.W.2d 334, 336 (1995).
The fact-
finder also may reject any testimony and believe or disbelieve
various parts of the evidence, even if it came from the same
witness.
Magic Coal, 19 S.W.3d at 96 and Whittaker v. Rowland,
Ky., 998 S.W.2d 479, 481 (1999).
A party challenging the ALJ’s factual findings must do
more than present evidence supporting a contrary conclusion to
justify reversal.
Transportation Cabinet, Department of
Highways v. Poe, Ky., 69 S.W.3d 60,62 (2001); Ira A. Watson
Department Store v. Hamilton, Ky., 34 S.W.3d 48, 52 (2000).
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Where the party with the burden of proof is not successful
before the ALJ in a workers compensation matter, the issue on
appeal is whether the evidence in that party's favor is so
compelling that no reasonable person could have failed to be
persuaded by it.
Carnes v. Tremco Mfg. Co., Ky., 30 S.W.3d 172,
176 (2000); Bullock v. Peabody Coal Co., Ky., 882 S.W.2d 676,
678 (1994).
Upon review of the Board’s decision, the appellate
court’s function is limited to correcting the Board only where
it has overlooked or misconstrued controlling statutes or
precedent or committed an error in assessing the evidence so
flagrant as to cause gross injustice.
Western Baptist Hospital
v. Kelly, Ky., 827 S.W.2d 685, 687 (1992); Phoenix Manufacturing
Co. v. Johnson, Ky., 69 S.W.3d 64, 67 (2002).
Harrington challenges the ALJ’s opinion as being based
on speculation and conjecture.
First, Harrington contests the
ALJ’s and Dr. Graulich’s conclusion that he more likely injured
his back the weekend prior to, rather than on, June 5.
He
asserts that this conclusion is rank speculation unsupported by
the evidence in the record.
See, e.g., Young v. L.A. Davidson,
Inc., Ky., 463 S.W.2d 924, 926 (1971)(medical opinion evidence
must be founded on probability and not on mere possibility or
speculation).
TFE contends that Dr. Graulich’s opinion was not
mere speculation because it was based on a review of the entire
record including the trivial nature of the alleged incident, the
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security videotape and accompanying time-line, Harrington’s
“suspicious” history about missing two days of work due to
sunburn, and Harrington’s degenerative arthritis.
While we believe the record supports some suspicion
concerning Harrington’s excuse for missing work the two days
prior to the alleged incident, there is no evidence that
Harrington suffered an injury over the weekend or missed work
due to back pain.
Logic does not support a conclusion that
Harrington missed work because of back pain even if he did not
have a severe sunburn and had degenerative arthritis.
TFE has
not pointed to anything on the videotape to suggest that
Harrington was suffering from back pain prior to the time of the
alleged incident.
As Harrington states, the conclusion that he
missed work because of back pain is generated from stacking
several inferences and excluding merely one of a myriad number
of possible reasons for why he could have decided to miss work.
Even though the conclusion that Harrington missed work
due to back pain may have been unreasonable, the ALJ’s
consideration of that fact does not render his decision invalid.
Harrington has the affirmative obligation to prove a workrelated injury; TFE does not have to establish that the
impairment was not work-related.
Given the absence of direct,
independent evidence that the incident involving his alleged
misstep occurred, Harrington’s credibility became a central
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issue.
As the ALJ noted, there was conflicting evidence
relevant to Harrington’s credibility with respect to his missing
work because of having suffered a severe sunburn.
Harrington stated that he was sunburned on a large
part of his body including his head, face, arms, and legs.
He
responded affirmatively when asked if his fellow workers could
have noticed that he was sunburned.
However, Throckmorton and
Zachary testified that they saw no indication that Harrington
was sunburned when they saw him on the day of the alleged
incident.2
In addition, the climatological records from data
collected at the Cincinnati Airport showed trace amounts of rain
with hazy skies on June 1, 2002, and broken cloud cover on June
2, 2002.
Harrington testified that it was sunny with no rain at
his residence, which is several miles from the airport, on both
days.
More probative is the evidence involving Harrington’s
description of the alleged injury.
During his interview of
Harrington, Weaver attempted to have Harrington demonstrate the
incident, but the transcript indicates that he had difficulty
doing so.3
Weaver testified that there were inconsistencies in
2
Zachary actually testified when asked if Harrington appeared to be
sunburned, “Terry always has a red face.” This statement is somewhat
ambiguous but does suggest that he looked normal. Throckmorton’s testimony
was not as equivocal.
3
Weaver created an audiotape of the interview and a transcription is included
in the record.
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Harrington’s description of the incident and that Harrington
“could never provide to me any satisfactory version of how he
injured himself.”
at 320.
See Record of the Workers’ Compensation Board
Inconsistencies in Harrington’s description appear
elsewhere in the record.
For instance, in Weaver’s interview,
Harrington indicated in his deposition that he operated the
powerjack standing on the left hand side of the platform and his
right foot touched the ground first, but Harrington testified at
the hearing that he stood on the right hand side and his left
foot hit the ground first.
See id. at 349, 351, and 575.
the hearing, Harrington testified as follows:
JUDGE SMITH: Okay. So you stand on
one side and you ride this power jack; is
that right?
HARRINGTON:
JUDGE SMITH:
right-hand side?
HARRINGTON:
Yes, sir.
And you were on the
Yes, sir.
. . . .
JUDGE SMITH: At some point you’re
getting off this power jack.
HARRINGTON:
Yes, sir.
JUDGE SMITH: And the first foot to
touch the ground is the left foot or the
right foot?
HARRINGTON:
The left foot, sir.
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At
JUDGE SMITH: So you back off the power
jack, you step backwards or something?
HARRINGTON:
No, you step off this way,
sir.
JUDGE SMITH: When you say, that way,
because you’re facing forward, right?
HARRINGTON:
forward.
Yes, sir, I’m facing
JUDGE SMITH: And you’re on the righthand side. So when you put the left foot
down, where is the left foot?
HARRINGTON:
JUDGE SMITH:
that –-
It varies from, you know.
As you can remember on
HARRINGTON: It would be roughly about
here and then I stepped off with my right
foot here and realized, so I come back
across.
JUDGE SMITH: Okay. Here’s what I’m
thinking he’s describing to me.
MR. MEHLING [Harrington’s attorney]:
Uh-huh.
JUDGE SMITH: I’m thinking he’s
describing that he stepped off with his left
foot on the right-hand side, is that what
he’s describing?
MR. MEHLING:
HARRINGTON:
That’s the way I took it.
Yes, sir.
. . . .
JUDGE SMITH: Okay. So you step off
with the left foot but you said it was the
right foot that was going to twist.
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HARRINGTON: Right. I stepped off with
the left and as I come down with my right to
balance myself, my ankle turned, and to keep
from twisting my ankle, I just twisted my
whole body ever so briefly.
JUDGE SMITH: So your left foot was
already on the ground?
HARRINGTON:
JUDGE SMITH:
going to turn.
HARRINGTON:
Yes, sir.
But your right foot’s
Yes, sir.
We agree with the Board that the evidence presented by
both parties was ambiguous, and we might have decided the case
differently.
Under the limited role of review in workers’
compensation cases, however, the ALJ has the primary authority
in determining credibility and the weight to be given the
evidence.
Viewing the entire record, we believe that Harrington
has not shown the ALJ erred in concluding that he did not
satisfy his burden of proving causation for a work-related
injury by evidence so overwhelming that it compelled a decision
in his favor.
As a result, we cannot say that the Board
overlooked or misconstrued controlling law or committed an error
in assessing the evidence so flagrant as to cause gross
injustice.
For the foregoing reasons, we affirm the opinion of
the Workers’ Compensation Board.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE—TFE Group:
Christopher J. Mehling
Tamara T. Pitts
Covington, Kentucky
Vonnell C. Tingle
Louisville, Kentucky
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