PLASTIC PRODUCTS COMPANY, INC., SAFETY AND CLAIMS PETITION FOR REVIEW OF A DECISION V. JEFF HOOTS; HONORABLE DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD; AND PLASTIC PRODUCTS COMPANY, INC., INSURANCE COMPANY
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RENDERED: October 8, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002704-WC
PLASTIC PRODUCTS COMPANY, INC.,
AS INSURED BY UNDERWRITERS'
SAFETY AND CLAIMS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-00-71250
V.
JEFF HOOTS;
HONORABLE DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD;
AND PLASTIC PRODUCTS COMPANY, INC.,
AS INSURED BY LIBERTY MUTUAL
INSURANCE COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, McANULTY, AND MINTON, JUDGES.
MINTON, JUDGE:
Plastic Products Company, Inc. (“PPC”) seeks
review from a November 19, 2003, Opinion of the Workers’
Compensation Board (“Board”).
An Administrative Law Judge
(“ALJ”) ordered PPC to compensate Jeff Hoots, a former PPC
employee whom the ALJ found had been injured on the job.
The
Board affirmed the decision of the ALJ and PPC appealed.
We
affirm.
BACKGROUND SUMMARY
Hoots is a 32 year-old man who began working for PPC
in 1994 as a press operator and material handler.
He worked
until July 27, 2000, when he suffered a debilitating workrelated injury.
Hoots has been unemployed since that time.
Hoots’s injuries are manifold, ranging from a hernia
to head, neck, and back injuries.
He was injured while working
at PPC on September 24, 1998; December 1, 1998; June 20, 2000;
and July 27, 2000.
Hoots was also involved in a non-work-
related car accident in March 1999.
After each injury, Hoots
was examined and treated by a physician.
Although he was always
released to return to work, Hoots was placed on certain
restrictions regarding the amount of weight he could lift and
pull.
The issue on appeal only involves the July 2000
injury.
Hoots alleges his injury occurred when he was pulling a
heavy load of boxes.
He began to experience back pain, chest
pain, and numbness in his left arm and was taken to the
hospital.
The human resources department at PPC was aware of
Hoots’s injury; however, Hoots did not fill out a report at the
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time of the accident.
He did not formally report the July 2000
incident until February 2, 2001.
The ALJ found that Hoots’s injuries were work-related
and adjudged the July 2000 injury to have left him 12 percent
impaired.
The ALJ also found that Hoots had given PPC proper
and timely notice of his injuries.
He ordered PPC to pay
benefits to Hoots for the July 2000 incident at the rate of
$94.84 per week for a period not to exceed 425 weeks.
PPC was
additionally required to pay Hoots’s medical expenses and for
his vocational evaluation by the Department of Workers’ Claims.
The Board affirmed the ALJ’s findings of facts and
conclusions of law.
This appeal follows.
THE JULY 2000 INJURY
PPC first argues there was not substantial evidence to
support the finding that Hoots suffered a work-related injury on
July 27, 2000.
Specifically, PPC claims the ALJ should not have
relied on the testimony of Hoots and Dr. O.M. Patrick.
We
disagree.
It is well settled that “the ALJ, as fact-finder, has
the sole authority to judge the weight, credibility and
inferences to be drawn from the record.”1
The decision of the
ALJ may be appealed to the Board; but “[n]o new evidence may be
1
Miller v. East Kentucky Beverage/Pepsico, Inc., Ky., 951 S.W.2d
329, 331 (1997).
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introduced before the Board, and the Board may not substitute
its judgment for that of the ALJ concerning the weight of
evidence on questions of fact.”2
The role of this Court in
reviewing decisions of the Board “is to correct the Board only
when we perceive that the Board has overlooked or misconstrued
controlling law or committed an error in assessing the evidence
so flagrant as to cause gross injustice.”3
If a decision is made in favor of the claimant, the
question on appeal “is whether the decision . . . is supported
by substantial evidence[.]”4
The term “substantial evidence” has
been defined as “evidence of substance and relevant consequence
having the fitness to induce conviction in the minds of
reasonable men.”5
When, as in this case, there is conflicting medical
testimony, it is within the province of the ALJ to decide whom
to believe.6
The ALJ “has the right to believe part of the
evidence and disbelieve other parts of the evidence whether it
2
Smith v. Dixie Fuel Co., Ky., 900 S.W.2d 609, 612 (1995).
3
Daniel v. Armco Steel Company, L.P., Ky.App., 913 S.W.2d 797, 798
(1995), quoting Western Baptist Hospital v. Kelly, Ky.,
827 S.W.2d 685, 687-688 (1992).
4
Wolf Creek Colleries v. Crum, Ky.App., 673 SW2d 735, 736 (1984).
5
Smyzer v. B.F. Goodrich Chemical Company, Ky., 474 S.W.2d 367,
369 (1971).
6
Copar, Inc. v. Rogers, Ky., 127 S.W.3d 554, 561 (2003); see also,
Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123, 124 (1977).
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came from the same witness or the same adversary party’s total
proof.”7
PPC argues the ALJ should not have relied on the
testimony of Hoots and Dr. Patrick but, rather, should have
focused on the testimony submitted by Hoots’s other examining
doctors.
In support of this argument, PPC claims Dr. Patrick
was given an inaccurate medical history for Hoots.
PPC also
alleges Dr. Patrick was the only physician to whom Hoots
described his July 2000 injuries.
With regards to Hoots’s
testimony, PPC claims Hoots’s statement, “sometime during that
day I herniated the discs in my back,”8 was not sufficient to
rise to the level of “substantial evidence.”
Dr. Patrick examined Hoots on March 23, 2002.
He
stated that in his opinion, Hoots had a “12% impairment partial
permanent functional to the body as a whole.”9
Dr. Patrick also
stated that with reasonable medical probability, Hoots’s July
2000 injury was the cause of his medical complaints.10
Although
the other physicians who examined Hoots agreed he had sustained
7
Snawder v. Stice, Ky.App., 576 S.W.2d 276, 280 (1979); see also,
Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15, 16
(1977).
8
Brief for Appellant at page 8.
9
Medical Report of Dr. O.M. Patrick, Record, page 318.
10
Id. at page 319.
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back injuries, no other doctors related Hoots’s injuries to the
July 2000 incident.
As discussed, the ALJ decides whom to believe when
there is conflicting medical testimony.11
So long as the ALJ’s
decision is supported by substantial evidence, neither the Board
nor this Court will interfere with the findings.
There is ample
evidence to conclude that the Board’s reliance on Dr. Patrick’s
testimony was based on substantial evidence.
Although
Dr. Patrick’s findings regarding the relationship between
Hoots’s injuries and the July 2000 incident differed from the
findings of other testifying physicians, it is the ALJ’s role to
decide whom to believe.
Dr. Patrick.
In this case, the ALJ chose to believe
While the ALJ’s conclusion is not the only
inference possible, it is supported by substantial evidence.12
Therefore, we are not persuaded by PPC’s request to reverse this
finding of fact.
It was also the ALJ’s choice to believe the testimony
of Hoots.
The evidence supplied by Hoots can aptly be deemed
“substantial.”
Therefore, the ALJ’s reliance on his testimony
was proper.
11
Pruitt, supra.
12
Daniel, supra.
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TIMELY NOTICE
PPC’s second argument is that Hoots did not give
proper and timely notice of the July 2000 incident.
PPC claims
the ALJ should have relied on the testimony of Mary Jane Tungate
and Jimmy Luckett, two PPC employees who denied Hoots’s claim
that he had given them notice of his injuries.
We disagree.
KRS13 342.200 states, “[w]ant of notice or delay in
giving notice shall not be a bar to proceedings under this
chapter if it is shown that the employer, his agent or
representative had knowledge of the injury . . . .”
Again, we
note the well-settled rule that the Board will not substitute
its findings for those of the ALJ.14
The role of this Court in
reviewing the Board’s decision is solely to ensure there has not
been manifest injustice.15
The Board affirmed the ALJ’s finding that Hoots’s
notice of his injury to PPC was proper.
In its opinion, the
Board wrote:
While Plastic Products points to evidence in
the record that certainly would have
supported a finding that timely notice was
not given . . . that is not the standard of
review on appeal. The ALJ found Hoots
credible concerning his version of the
giving of notice. This Board is without
authority to substitute its opinion for that
13
Kentucky Revised Statutes.
14
Daniel, supra.
15
Id.; see also, Western Baptist Hospital v. Kelly, supra.
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of the ALJ in matters of fact; therefore,
the ALJ’s findings may not be set aside.16
We agree with the Board.
The ALJ found Hoots notified
Tungate of his injury on July 27, 2000, before leaving to seek
medical treatment.
The ALJ also found Hoots completed an injury
report in February 2001 relating to the July 27, 2000 incident.
The injury report indicated Hoots had notified his supervisor on
the date of his injury.
The ALJ decided this evidence was
sufficient to hold that Hoots had given PPC proper and timely
notice.
The evidence relied upon by the ALJ in making this
decision was substantial.
Therefore, we are not inclined to
reverse the findings of fact.
For the foregoing reasons, the November 19, 2003,
decision of the Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE JEFF HOOTS:
Carl M. Brashear
Lexington, Kentucky
Jeffrey J. Paige
Louisville, Kentucky
16
Opinion of the Workers Compensation Board, November 19, 2003, at
15-16.
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