PATRICIA TILLMON v. GENERAL MOTORS CORPORATION; HON. MARCEL SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: June 17, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2005-CA-000141-WC
PATRICIA TILLMON
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NOS. 01-01602-WC & 02-02167-WC
v.
GENERAL MOTORS CORPORATION;
HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, KNOPF, AND SCHRODER, JUDGES.
KNOPF, JUDGE:
Patricia Tillmon appeals from a December 23, 2004,
order by the Workers’ Compensation Board (Board) which affirmed
an Administrative Law Judge’s (ALJ) order dismissing her claim.
Because there was substantial evidence supporting the ALJ’s
findings and conclusions, we affirm the Board’s order.
At all times relevant to this appeal, Tillmon was
employed as an assembly line worker for General Motors.
In
November 2001, Tillmon filed a workers’ compensation claim
alleging multiple dates of injury to her neck and upper
extremities based on repetitive motion.
The claim was ultimately
settled on July 31, 2002, based on a 13% impairment rating.
Shortly thereafter, Tillmon filed a second claim alleging that
she had suffered a work-related back injury on August 9, 2002.
Tillmon also claimed that she had suffered repetitive-motion
injuries to her left hand, wrist, arm, and shoulder.
In support of her claim, Tillmon introduced medical
evidence from Dr. William R. Schooley, Dr. Endraetta Watts, and
Dr. Thomas Wolff.
General Motors also relied on the deposition
testimony of Drs. Schooley and Wolff, and introduced medical
evidence presented in Tillmon’s earlier claim.
In 1994, Tillmon
began to suffer pain in her right wrist, for which Dr. Schooley
performed right carpal tunnel surgery in April 1995.
Later that
year, Dr. Schooley performed a cervical fusion at C5-6.
Tillmon
returned to work in January 1996 with restrictions.
In February of 2000, Dr. Schooley diagnosed Tillmon
with ulnar neuropathy on the right side and an EMG was performed.
She underwent right ulnar neuropathy surgery in April 2000, and
she was released to return to work with restrictions in September
2000.
Tillmon testified that she began to work left-handed after
2
the surgery, which thereafter began causing problems to her left
upper extremity.
In November 2001, Dr. Wolff performed surgery
to repair her cubital tunnel syndrome and to remove a cyst.
These conditions were the subject of Tillmon’s earlier claim.
Tillmon returned to work in March of 2002, and she
testified that she began to have problems with her left arm as of
August 9, 2002.
She continued to work until October, when she
underwent surgery for the condition.
Since that time, Tillmon
has had additional surgeries to her left extremities and to her
back.
The primary issue in this action concerns the
difference in Tillmon’s occupational disability on July 31, 2002,
when the prior claim was settled, and her occupational disability
at the time of her current claim.
However, this case does not
involve a re-opening of the prior claim.
Rather, Tillmon alleges
that she is now totally occupationally disabled as a result of
her repetitive motion injuries and her back condition.
Dr. Schooley testified that Tillmon has suffered
degenerative changes to her back since July 2002.
When combined
with the repetitive motion injuries, Dr. Schooley assessed a 25%
impairment rating.
Likewise, Dr. Watts, a neurologist, stated
that Tillmon would not be able to return to work due to the
carpal tunnel syndrome, even following the surgeries and with
restrictions.
3
However, Dr. Wolff opined that Tillmon’s occupational
disability remained the same as it was at the time of her earlier
claim, and he concluded she could return to work with the same
restrictions as before.
Furthermore, the independent medical
evaluator, Dr. Richard Sheridan, did not believe that Tillmon’s
back condition was work-related.
Based upon Dr. Wolff’s
testimony, the ALJ found that Tillmon suffered no additional
disability due to the conditions in her left hand, wrist, arm,
and shoulder.
The ALJ also concluded that Tillmon’s lower back
condition was not work-related.
The Board affirmed and this
appeal followed.
Tillmon concedes that there was evidence to support the
ALJ’s conclusion, but nevertheless argues that this Court should
set aside the ALJ’s findings.
However, the ALJ has the sole
discretion to determine the quality, character, and substance of
evidence.1
As fact-finder, the ALJ, may reject any testimony and
believe or disbelieve various parts of the evidence, regardless
of whether it came from the same witness or the same adversary
party's total proof.2
Where the party with the burden of proof
was unsuccessful before the ALJ, that party must show that the
1
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
2
Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky.
1977).
4
evidence would compel a finding in her favor.3
The Board may not
substitute its judgment for that of the ALJ in matters involving
the weight to be afforded to the evidence in questions of fact.4
While the Board noted some inconsistencies in the
terminology used by the ALJ, the Board concluded that the ALJ’s
conclusions were supported by substantial evidence in the record.
The Board also noted that, while Dr. Schooley had treated Tillmon
for back problems since 1996, there was no claim that it was
work-related until after the settlement of her first claim.
Tillmon has failed to demonstrate that the Board has overlooked
or misconstrued controlling statutes or precedent, or that it
committed an error in assessing the evidence so flagrant as to
cause gross injustice.5
Accordingly, the December 23, 2004, order by the
Workers’ Compensation Board affirming the ALJ’s dismissal of
Tillmon’s claim is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
GENERAL MOTORS CORPORATION:
Patricia A. Tillmon, pro se
3
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
4
KRS 342.285.
5
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992).
5
Bowling Green, Kentucky
Walter E. Harding
Boehl Stopher & Graves, LLP
Louisville, Kentucky
6
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