WAYNE L. RAYBOURNE v. UNITED PARCEL SERVICE; HONORABLE ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: JUNE 18, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002642-WC
WAYNE L. RAYBOURNE
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-01772
UNITED PARCEL SERVICE;
HONORABLE ROGER D. RIGGS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY AND MINTON, JUDGES.
GUIDUGLI, JUDGE.
Wayne Raybourne (“Raybourne”) seeks review of
an opinion of the Workers’ Compensation Board (“the Board”)
which reversed and remanded a decision of the Administrative Law
Judge (“ALJ”) granting Raybourne a permanent partial disability
award based upon a 13% impairment rating.
The Board opined that
the record contained no evidence of substantial probative value
sufficient to support the existence of a cumulative trauma
injury producing permanent functional impairment as found by the
ALJ.
We affirm the opinion of the Board.
The facts are not in controversy.
Raybourne began
working for United Parcel Service (“UPS”) in 1990 as a part-time
package sorter.
The position required repetitive lifting,
bending, and twisting.
delivery driver.
In 1996, he began working as a full-time
This position also required the lifting of
packages weighing up to 150 pounds.
In March, 2000, Raybourne stepped off of a delivery
truck and felt pain in his left posterior hip and lateral thigh
area.
He reported the pain to his superiors and initially was
treated by a UPS physician, Dr. Nunnelley.
Raybourne was placed
on disability leave for 30 days, after which he returned to
work.
For more than two years thereafter, Raybourne
continued to work but would have reoccurring problems with his
back and leg.
When the problem worsened, he again reported it
to his superiors.
The pain caused him to stop working on
September 13, 2002.
Raybourne was eventually referred to Dr.
John Harpring (“Dr. Harpring”).
Dr. Harpring diagnosed a lumbar
disk herniation, and performed surgery to correct the condition
on November 20, 2002.
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After a period of recovery, Raybourne returned to work
with no restrictions in January, 2003.
At approximately the
same time, he filed a claim for benefits with the Department of
Workers’ Claims.
Raybourne claimed entitlement to temporary
total disability benefits for his period of total disability
(September, 2002 to January, 2003) in addition to permanent
partial occupational disability benefits.
The matter went before the ALJ who, upon hearing
proof, concluded that Raybourne suffered a work-related back
injury or condition due to cumulative trauma.
The conclusion
was based on the medical evidence showing Raybourne to be
suffering from a 13% impairment to the body as a whole.
On May
22, 2003, the ALJ rendered an award to Raybourne for both
temporary total disability benefits and permanent occupational
disability benefits.
UPS’s petition for reconsideration was
denied.
UPS appealed the ALJ’s decision and award to the
Board.
Upon considering the issues raised, the Board concluded
that the record contained no evidence of substantial probative
value sufficient to support the existence of a cumulative trauma
injury producing permanent functional impairment as found by the
ALJ.
Rather, it found that the medical evidence wholly
confirmed that Raybourne’s disk herniation produced by the May
7, 2000 work related traumatic incident (i.e., stepping off of
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the delivery truck) was the cause of his current condition.
Having found no evidence in the record to support the ALJ’s
conclusion that cumulative trauma resulted in Raybourne’s
condition, the Board concluded that the Workers’ Compensation
claim had been filed outside the permissible statute of
limitations.
The Board reversed the award and remanded the
matter for an order in accordance with its decision.
This
appeal followed.
Raybourne now argues that the findings and award of
the ALJ are supported by the medical and lay evidence, and that
as such it was clear error for the Board to substitute its
finding and judgment for that of the ALJ.
He directs our
attention to 1) the medical questionnaire of Dr. S. Pearson
Auerbach (“Dr. Auerbach”) which he claims affirmatively and
specifically describes Raybourne’s back condition as being workrelated; 2) the definition of “injury” including either a single
traumatic incident or cumulative mini-traumas; and, 3) his
assertion that report of Dr. Robert Baker (“Dr. Baker”) failed
to controvert the work-related opinions of Dr. Auerbach and Dr.
Warren Bailey (“Dr. Bailey”).
Raybourne also argues that the
Board was without authority to rely on the statute of
limitations because this issue was not raised by the parties.
He seeks an order reversing the opinion of the Board and
reinstating the ALJ’s award.
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We have closely examined the record and the written
arguments, and cannot conclude that the Board erred in finding
that the record contained no evidence of substantial probative
value sufficient to support the existence of a cumulative trauma
injury producing permanent functional impairment as found by the
ALJ.
The weight of the medical evidence at issue is represented
by the opinions of Drs. Bilkey, Auerbach and Baker.
Additional
evidence was produced by Dr. Joseph Goben (chiropractor) and
Lisa Dunsmore, the business manager for UPS.
Dr. Bilkey assessed a 13% whole body impairment, which
he attributed not to cumulative trauma, but to “the work injury
that occurred in March of 2000, in combination with the
degenerative disease that he had in his spine.”
Dr. Auerbach
also assessed a 13% impairment rating, which he attributes
entirely to the March 7, 2000 injury.
Lastly, Dr. Baker
assessed a 10% impairment rating (post-surgically), and did not
attribute the rating to cumulative trauma.
The Board properly concluded that “there is no
evidence to support the ALJ’s finding that following the
original work-related injury of March 7, 2000, Raybourne
suffered from additional cumulative trauma or that any of his
13% impairment was attributable to repetitive work activities.”
It noted that none of the physicians of record diagnose or
reference phrases like “cumulative trauma,” “mini-trauma,” or
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“repetitive trauma” to describe the genesis of Raybourne’s
condition.
Where the ALJ’s award is in favor of the party with
the burden of proof, the issue on appeal before the Board is
whether the decision was supported by substantial evidence.
Transportation Cabinet v. Poe, Ky., 69 S.W.3d 60 (2001).
The
Board properly applied this standard of review, and in so doing
correctly determined that the record contains no substantial
evidence in support of the ALJ’s finding of cumulative trauma
producing Raybourne’s functional impairment.
KRS 342.0011 defines injury as resulting from a workrelated traumatic event, or from a series of traumatic events
including cumulative trauma.
Raybourne was required to file his
claim for benefits within two years of the date of injury.
342.185(1).
KRS
Since the date of injury was March 7, 2000, and as
there is no medical evidence in the record showing Raybourne’s
condition to have resulted from cumulative trauma occurring
subsequent to March 7, 2000, the Board properly concluded that
Raybourne’s application for benefits was not timely filed.
Its
reliance on the statute of limitations was proper even though
the issue had not been raised by UPS.
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:
Ched Jennings
Louisville, KY
Anthony K. Finaldi
Louisville, KY
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