JANICE M. HALL v. HOLLEY PERFORMANCE PRODUCTS; HON. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; AND KENTUCKY WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000253-WC
JANICE M. HALL
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-64803
v.
HOLLEY PERFORMANCE PRODUCTS;
HON. LANDON OVERFIELD, ADMINISTRATIVE
LAW JUDGE; AND KENTUCKY WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; BUCKINGHAM AND KNOPF, JUDGES.
COMBS, CHIEF JUDGE:
Janice Hall petitions for review of an
opinion of the Workers’ Compensation Board (Board) of January 7,
2005.
An Administrative Law Judge (ALJ) had dismissed her
application for permanent occupational disability benefits, and
the Board affirmed the dismissal.
Because Hall’s arguments
involve factual issues that are not a matter of record, there is
no basis for us to second-guess the reasoning of the Board.
Therefore, we affirm.
For more than thirty-five years, Hall was employed by
the appellee, Holley Performance Products.
In her application
for workers’ compensation benefits, she stated that on September
2, 2002, she injured her right shoulder and neck while working
on an assembly line.
She underwent surgery to repair her
shoulder in November 2002.
However, she testified that her
symptoms worsened after the surgery and that she continues to
suffer debilitating pain.
She also charged that her surgeon
committed malpractice that produced damage to her lungs,
requiring her to use oxygen every day.
totally disabled.
She contends that she is
She has been awarded Social Security
Disability.
Hall’s claim for workers’ compensation benefits cited
disability based on both physical and mental components.
filed by attorney Michael Lindsey on August 4, 2003.
It was
However,
Hall later discharged Mr. Lindsey as her attorney due to her
belief that he was engaged in a conspiracy with her employer to
deny her benefits.
Hall’s new lawyer, William Rudloff,
proceeded to obtain and to submit medical evidence in Hall’s
behalf.
On December 2, 2003, Hall was scheduled to be
evaluated by an independent medical examiner (IME) with respect
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to her psychiatric claim.
evaluation.
Hall and her husband appeared for the
When the psychiatrist refused to allow Mr. Hall to
record the examination on videotape, Hall refused to allow the
examination to proceed.
Prior to the benefit review conference (BRC) of
January 14, 2004, Hall settled the psychiatric portion of her
claim in exchange for her employer’s agreement to pay a fee of
$700 owed to the IME.
Hall was present at the BRC when her
attorney waived an evidentiary hearing.
In the order following
the BRC, the ALJ gave all parties a deadline of February 4,
2004, for filing briefs.
At that point, the matter would be
deemed to be submitted.
Citing a breakdown in the attorney/client
relationship, Mr. Rudloff filed a motion on January 22, 2004,
seeking to withdraw immediately as Hall’s counsel.
The ALJ
granted the motion and allowed Hall additional time of thirty
(30) days in which to obtain new counsel; the date of submission
was extended sixty days.
The ALJ subsequently granted Hall more
time (through April 30, 2004) to obtain counsel and left the
case open for the filing of briefs until June 30, 2004.
Hall did not obtain new counsel.
submit a brief in which she alleged:
However, she did
(1) that she had “found a
lot of lies” in the brief filed by Holley Performance Products
and (2) that she had not voluntarily waived her right to a
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hearing at the BRC.
She argued in general terms that relevant
evidence had been previously withheld and requested that the ALJ
re-schedule the matter for an evidentiary hearing.
On August 27, 2004, the ALJ rendered an opinion and
order dismissing Hall’s claim.
After summarizing the medical
evidence submitted by Hall and by Holley Performance Products,
the ALJ expressed his belief that Hall had “not told the truth
to her medical providers or the medical experts evaluating her
condition.”
He was not persuaded that Hall had sustained a
work-related injury:
[Hall] has failed to sustain the burden
of proving to the satisfaction of the trier
of fact that she has had an injury as
defined by the statute or that her right
shoulder condition was caused by or [is] in
any way related to her work for [Holley
Performance Products]. In making this
finding, I have relied on Dr. [Michael]
Moskal’s opinions. It is his opinion that
[Hall] has no work related condition which
results in a functional impairment rating.
Moreover, he is of the opinion that [Hall]
has no work related harmful change in the
human organism. Dr. Moskal’s opinions,
particularly when considered in conjunction
with the records from Drs. [John T.] Burch
and [James] Phillips, are the most credible
and convincing opinions in the record
relating to [Hall’s] claimed injury.
In her appeal to the Board, Hall argued that she was
deprived of due process before the ALJ because of allegedly
scandalous, collusive, and conspiratorial behavior on the part
of both of her attorneys and the ALJ.
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She claimed that Mr.
Lindsey did not intend to file her claim until after the statute
of limitations had expired and that his secretary was
responsible for the timely filing of her claim.
charges included:
Numerous
that Mr. Lindsey appeared at the BRC and
physically intimidated her; that Mr. Rudloff and Mr. Lindsey
conspired against her; that Mr. Rudloff coerced her into
settling the psychiatric portion of her claim; that Mr. Rudloff
hand-picked the ALJ; that Holley Performance Products paid off
both of her attorneys and the ALJ; and that the ALJ had already
decided to dismiss her case prior to the BRC.
On the merits,
she argued that the ALJ erred in giving more weight to the
opinions of the doctors who merely evaluated her rather than
deferring to the opinions expressed by her treating physician.
After reviewing and reciting the evidence submitted by
the parties, the Board addressed the issues raised by Hall as
follows:
It is obvious from Hall’s pro se brief
that she believes she has been dealt with
unfairly, to the point of claiming
collusion. Those rash accusations are
without any substantive basis. By all
accounts, the litigation of Hall’s claim
proceeded normally and in accord with the
procedural regulations, and she was afforded
every opportunity to submit medical evidence
in support of her claim. By the time of the
Benefit Review Conference (“BRC”), proof
time had closed and, as noted on the BRC
order, the hearing had been waived. Waiver
of final hearing often occurs when counsel
concludes it would serve no useful benefit.
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While it is obvious Hall is dissatisfied
with the outcome of her claim, waiver of a
final hearing does not equate to a denial of
due process.
Addressing the substantive aspect of
the case, the ALJ found the evidence from
Dr. Moskal to be the most persuasive. He
relied on the testimony of Dr. Moskal that
Hall did not sustain a work-related injury
and could return to work with no
restrictions. As reviewed above, the matter
of whom to believe is solely before the ALJ.
It is not enough for Hall to show there is
evidence to the contrary, which would
support a finding in her favor. So long as
there is evidence in the record which
supports the ALJ’s decision, this Board is
without authority to reverse. Since there
is evidence in the record which supports the
ALJ’s conclusion, this Board does not have
authority to make different findings of
fact. [Citations omitted.]
Review of a decision of the Board before this Court is
carefully limited.
It is our function:
to correct the Board only where the [sic]
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.
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992); KRS 1 342.290.
Hall has not raised any issues undermining
the validity of the legal precedents cited by the Board or
concerning its assessment of the evidence.
Hall argues instead
that the Board’s decision “must be quashed on grounds of
1
Kentucky Revised Statutes.
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improper, unethical and illegal conduct of [her] attorneys.”
(Appellant’s brief, at p. 5.)
Her brief is wholly concentrated
upon her belief in the inferior quality of the representation
that she received from attorneys Lindsey and Rudloff, detailing
numerous ethical violations.
We agree with the Board that the record refutes Hall’s
claims that she was deprived of procedural due process in
presenting her claim.
We cannot say that there is no merit to
the issues raised in her brief.
We simply note that there is no
actual evidence in the record for us to review.
The opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Janice Hall, pro se
Bowling Green, KY
James O. Fenwick
Lexington, KY
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