ELLIS BOWLING LESLIE COUNTY BOARD OF EDUCATION; HON. KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
Annotate this Case
Download PDF
RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001565-WC
ELLIS BOWLING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-01257
LESLIE COUNTY BOARD OF
EDUCATION; HON. KEVIN KING,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Ellis Bowling petitions for a review of a
decision of the Workers’ Compensation Board which affirmed a
decision of the Administrative Law Judge which denied benefits
for an alleged work injury to appellant’s back.
The question
came down to an issue of fact as to whether the disability was
due to a work-related injury or a subsequent non-work-related
injury.
A review of the conflicting evidence reveals no
flagrant errors in assessing the evidence, therefore we affirm.
The facts of the case, as stated by the Board are
that:
Bowling testified he suffered a workrelated accident on August 3, 2001. On that
occasion, he was lifting a box of paper
which was “stuck to the floor” when he
experienced low back pain. Bowling
described his pain on that date as being
slightly above his belt line on the right.
He left work early and sought medical
treatment the following day at the Mary
Breckinridge Hospital emergency room. At
the emergency room, he was given an
injection of Demerol. A First Report of
Injury regarding the incident was prepared
by Leslie County on August 6, 2001.
The emergency room record from Mary
Breckinridge Hospital, dated August 4, 2001,
logged that Bowling reported his injury
occurred at home, rather than at work, and
that he had experienced a prior back injury
and prior back pain. Bowling denied the
accuracy of that record. X-rays of
Bowling’s lumbosacral spine made August 6,
2001, revealed slight narrowing of the disc
space at L5-S1. Bowling admitted that when
he was 19 years old, he had been diagnosed
with arthritis in his back. Following the
accident, Bowling was off work for
approximately three weeks. Thereafter, he
was released without restrictions on August
22, 2001, at which time he went to work for
Begley.
Bowling worked at Begley for five weeks
pulling and stacking lumber. Bowling
testified that on August 31, 2001, during
his employment at Begley, he struck his head
on an I-beam and sought medical treatment at
Mary Breckinridge Hospital where his head
and neck were x-rayed. Apparently, this
accident resulted in no permanent injury.
-2-
In October 2001, Bowling was offered
another bus route by Leslie County. As a
result, he re-entered Leslie County’s employ
where he continued to work until July 20,
2002. Bowling testified he quit work at
that time because of ongoing problems with
his low back.
In August 2002, Bowling again sought
medical treatment for his low back. Prior
to that time he had not seen a physician as
a result of his alleged accident at Leslie
County since August 22, 2001. After
resuming treatment the following year at
Beechfork Clinic, Bowling was referred to
Dr. Joseph Williams. On September 18, 2002,
Bowling underwent an MRI at the After Hours
Clinic in Hazard, Kentucky, which revealed
an L5/S1 disc herniation on the left.
Bowling testified that based upon that MRI,
Dr. Williams recommended surgery. On
November 21, 2002, Dr. Williams performed a
left unilateral L5/S1 laminectomy with
discectomy and foraminotomy. Subsequent to
surgery, Dr. Williams treated Bowling in
follow-up through May 2, 2003. Bowling has
since come under the care of Dr. John
Gilbert, Dr. Williams’ partner.
Bowling testified he has not returned
to work since July 2002 because he has not
yet been released by his treating
physicians. At present, he continues to
experience pain in his low back and right
leg, which is aggravated by prolonged
sitting, prolonged standing and general
physical activity. His low back pain also
interferes with his ability to sleep.
Bowling filed an Application for
Resolution of Injury Claim with the
Department of Workers’ Claims on June 27,
2003. Thereafter, by order of the
Commissioner issued August 15, 2003,
Bowling’s case was assigned to ALJ King for
purposes of final adjudication. In addition
to Bowling’s testimony by deposition and at
-3-
hearing, evidence submitted for the ALJ’s
consideration consisted of medical records
and reports from Dr. Williams, Dr. Gilbert,
Excel Rehabilitation Services, Mary
Breckinridge Hospital, Hazard ARH and Dr.
Timothy C. Kriss. Also submitted was a copy
of Bowling’s July 10, 2002, CDL medical
examination report.
The ALJ reviewed the conflicting evidence and
concluded that any work-related injury received on August 3,
2001, had resolved itself by August 22, 2001, and that the
current complaint, surgery, etc., related to a subsequent nonwork related injury.
The Board affirmed and Bowling appeals to
this Court.
The claimant in a workers’ compensation claim bears
the burden of proving each of the essential elements of his
claim.
Snawder v. Stice, 576 S.W.2d 276 (Ky.App. 1979).
The
ALJ, as fact-finder, has the sole authority to determine the
weight, credibility, substance, and inferences to be drawn from
the evidence.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d
418 (Ky. 1985).
Where the evidence is conflicting, the ALJ may
choose whom and what to believe.
S.W.2d 123 (Ky. 1977).
Pruitt v. Bugg Brothers, 547
The ALJ may choose to believe parts of
the evidence and disbelieve other parts, even when it comes from
the same witness or the same party’s total proof.
Caudill v.
Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
-4-
Since Bowling was unsuccessful below, the question on
appeal is whether the evidence was so overwhelming as to compel
a finding in his favor.
Paramount Foods, 695 S.W.2d 418.
Compelling evidence has been defined as evidence so persuasive
that it was clearly unreasonable for the ALJ not to be convinced
by it.
Hudson v. Owens, 439 S.W.2d 565 (Ky. 1969).
We must
also be mindful that it is not enough for Bowling to show that
the record contains some evidence which might support a reversal
of the ALJ’s decision.
McCloud v. Beth-Elkhorn Corp., 514
S.W.2d 46 (Ky. 1974).
So long as the ALJ’s determination is
supported by any evidence of substance, it cannot be said that
the evidence compels a different result.
Special Fund v.
Francis, 708 S.W.2d 641 (Ky. 1986).
In Western Baptist Hospital v. Kelly, 827 S.W.2d 685
(Ky. 1992), our Supreme Court set the standard of review as:
“[t]he WCB is suppose to decide whether the evidence is
sufficient to support a particular finding made by the ALJ, or
whether such evidence as there was before the ALJ should be
viewed as uncontradicted and compelling a different result.”
Id. at 687.
In further review before the Court of Appeals,
[t]he WCB is entitled to the same deference
for its appellate decisions as we intend
when we exercise discretionary review of
Kentucky Court of Appeals decisions in cases
that originate in circuit court. The
function of further review of the WCB in the
Court of Appeals is to correct the Board
-5-
only where the Court perceives 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.
Id. at 687-688.
The issue on appeal in this case relates to a finding
of fact.
In our review of the record, we find no compelling
evidence in favor of Bowling.
The evidence is conflicting, but
the evidence is not so overwhelming as to compel a different
result.
For the foregoing reasons, we do not believe the ALJ
and the Board were clearly erroneous and therefore we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, LESLIE
COUNTY BOARD OF EDUCATION:
Monica Rice Smith
Hyden, Kentucky
Donald Walton
Melanie Gabbard
Lexington, Kentucky
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
