SOMERSET BOARD OF EDUCATION v. ALICE F. PERKINS; HON. BONNIE KITTINGER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: MAY 13, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001481-WC
SOMERSET BOARD OF EDUCATION
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-75501
ALICE F. PERKINS; HON. BONNIE
KITTINGER, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
McANULTY AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
McANULTY, JUDGE:
Appellant Somerset Board of Education (Board
of Education) petitions the Court for review of the opinion of
the Workers’ Compensation Board (Board) affirming the opinion of
the Administrative Law Judge (ALJ) which awarded benefits to
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Alice Perkins for an injury to her low back and right hip during
the course of her employment as a custodian.
The Board of
Education argued that the ALJ’s decision arbitrarily selected an
injury date not supported by the medical or testimonial
evidence.
The Workers’ Compensation Board affirmed the ALJ’s
order as supported by inferences from the evidence and therefore
“not clearly unreasonable.”
On appeal, the Board of Education
argues that the Board did not perform a correct review and the
claim should be reversed.
The function of review of the Workers’ Compensation
Board in the Court of Appeals is to correct the Board only where
we perceive 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.
Western
Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992).
We
do not believe that the Board flagrantly erred in assessing the
evidence so as to commit a gross injustice.
Thus, we affirm the
Board.
The Board of Education points out that the injury date
is possibly or even probably wrong.
The date is July 25, 2001,
taken from Dr. Lester’s medical evaluation of August 1, 2001,
which began by stating: “Ms. Perkins stated she was injured four
weeks ago and her last day of work was 7/25/01.”
He reported
her injury in that evaluation as an incident of her pushing a
-2-
desk with her hip.
Certainly, four weeks prior to the date of
her examination with Dr. Lester would put the injury date closer
to the beginning of July rather that the 25th.
In addition, the
Board of Education points out the lack of confirmation from Ms.
Perkins’ testimony, since at one time she stated that she
thought the desk incident occurred near the end of the school
year in May, and another time said she did not remember anything
happening in July.
The Board of Education argues these
inconsistencies make the use of the July 25, 2001 date
arbitrary, only designated by the ALJ to conform to the
pleadings in this case.
We agree that obtaining a correct injury date was a
problem in this case.
Nevertheless, we do not agree that “an
error in assessing the evidence so flagrant as to cause gross
injustice” has been shown.
The Board appropriately noted that
there were two injuries found by the ALJ in this case.
The date
given of July 25, 2001, was ostensibly the last day of work
after the incident in which Ms. Perkins injured her right hip
and leg while pushing a desk with her hip.
That choice of date
could be considered reasonable in that it apparently was the
date that her injury became so disabling as to require her to
take off work.
Moreover, the Board of Education has not shown any
“gross injustice” in the uncertainty over the date of injury.
-3-
As Ms. Perkins points out in her brief, the Board of Education
does not dispute that Ms. Perkins suffered a low back injury.
There is no evidence to show that her injury was attributable to
any event that occurred outside her work.
Although Ms. Perkins
admitted to leg pain in 1999, there was no medical evidence that
she was treated for any pain then, or that it kept her from
performing her duties at work.
Whether the incident occurred in May, the beginning of
July, or the end of July, 2001, Ms. Perkins suffered an injury
to her right hip when she was at work and pushed a desk.
The
medical evidence is consistent with a finding of an injury that
occurred prior to the incident on August 7, 2001.
Moreover, the
Board of Education has not argued that it was harmed by the
confusion about the injury date.
Neither notice nor statute of
limitations is claimed as an issue in this case.
Furthermore,
Ms. Perkins was awarded benefits from the date of the second
injury she incurred in this case.
Thus, we cannot perceive any
clear error or injustice in the ALJ’s settling upon the July
25th date.
It is not the function of this Court to resolve
factual disputes but only to review for flagrant error.
not find it in this case.
We do
Therefore, we affirm the opinion of
the Workers’ Compensation Board.
ALL CONCUR.
-4-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Walter E. Harding
Louisville, Kentucky
James D. Howes
Howes & Paige, PLLC
Louisville, Kentucky
-5-
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