PHYLLIS JUSTICE v. COMMUNITY TRUST BANK; HONORABLE MARCEL SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 16, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000678-WC
PHYLLIS JUSTICE
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
CLAIM NO. WC-01-66638
v.
COMMUNITY TRUST BANK;
HONORABLE MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON, SCHRODER, AND TAYLOR, JUDGES.
MINTON, JUDGE:
Phyllis Justice seeks review of an opinion of
the Workers’ Compensation Board affirming a decision of an
administrative law judge (“ALJ”) denying Justice’s claim for
benefits.
Finding no error in the Board’s opinion, we affirm.
In November 2001, Justice sustained a fall on some
steps at work.
As a result of that fall, she broke the long
metacarpal bone in her left hand.
She also claimed to have pain
in her head, neck, and back, as well as carpal tunnel syndrome.
Justice returned to work for a short time but had ceased working
before filing her claim for disability benefits in May 2003.
As is typical in Workers’ Compensation cases, medical
and expert opinions were marshaled on each side.
From those
opinions, the ALJ chose to rely upon the conclusions of
Dr. Joseph Zerga.
And based on Dr. Zerga’s conclusions, the ALJ
found that Justice did sustain a work-related fracture to her
metacarpal but that the fracture had healed.
The ALJ also
agreed with Dr. Zerga’s conclusion that Justice’s carpal tunnel
syndrome was not work-related.
Finally, the ALJ was persuaded
by Dr. Zerga’s opinion that any of Justice’s headaches, neck
pain, or back pain that stemmed from her fall had been resolved.
So, in essence, the ALJ found that none of Justice’s complaints
were related to her fall at work, except for her already healed
metacarpal fracture.
The Board affirmed the ALJ’s findings in
February 2005 and Justice filed this appeal.
Before Justice’s specific argument is addressed, it is
necessary to recite the permissible scope of this Court’s review
of a decision of the Board.
It is well-established that our
function in workers’ compensation cases “is to correct the Board
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
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injustice.” 1
Furthermore, Justice, as the claimant, has the
burden of proof and must prove every element of her claim. 2
Because the ALJ’s decision was not in Justice’s favor, the issue
on appeal is “whether the evidence was so overwhelming, upon
consideration of the entire record, as to have compelled a
finding in [Justice’s] favor.” 3
In order to be compelling,
evidence must be “so overwhelming that no reasonable person
would fail to be persuaded by it . . . .” 4
It must also be noted that the ALJ is the finder of
fact in workers’ compensation cases, meaning that the ALJ alone
“has the authority to determine the quality, character[,] . . .
substance[,]” 5 and weight of the evidence presented, as well as
the inferences to be drawn therefrom. 6
Thus, the ALJ “may reject
any testimony and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness
or the same adversary party’s total proof.” 7
Accordingly, given
1
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky.
1992).
2
Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
3
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
4
Magic Coal Co., 19 S.W.3d at 96.
5
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).
6
Miller v. East Kentucky Beverage/PepsiCo., Inc., 951 S.W.2d 329, 331
(Ky. 1997).
Magic Coal Co., 19 S.W.3d at 96.
7
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our limited scope of review, this Court may not “substitute its
judgment” for that of the ALJ, nor may we render our own
findings or direct the findings or conclusions the ALJ shall
make. 8
Bearing those principles in mind, we now turn to
Justice’s argument.
Dr. Zerga opined that any pain Justice
currently felt in her head, back, or neck did not stem from her
work-related fall.
Specifically, Dr. Zerga’s amended report, in
the form of a letter to Justice’s employer’s counsel, states as
follows:
“Ms. Justice related to me on her January 6, 2004,
appointment, that her symptoms of headaches, neck pain and back
pain had resolved. . . .
Therefore, in my opinion, she has no
condition ratable for post-traumatic cervical strain, posttraumatic tension type headaches with superimposed migraine, or
post-traumatic thoracolumbar strain.” 9
Justice’s sole argument
before us is that the ALJ erred in relying on Dr. Zerga’s
conclusion because that conclusion was based upon only an
alleged statement by Justice, not on medical examination.
Justice’s argument is unavailing for several reasons.
First, she cites to absolutely no authority to support her
8
Wolf Creek Collieries, 673 S.W.2d at 736.
9
Record, p. 311.
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position. 10
Next, her argument ignores the fact that Dr. Zerga
did perform a physical examination of Justice. 11
Third,
Justice’s argument runs afoul of the fact that the statements of
a claimant are competent evidence in a workers’ compensation
proceeding. 12
Indeed, a physician acts properly in taking into
account a claimant’s statements regarding her condition when
assessing a claimant’s alleged impairment.
The fact that a
physician’s opinion is based, at least in part, upon the
claimant’s statements, does not render the physician’s opinion
inadmissible. 13
Finally, it must be noted that Justice chose not
10
In fact, Justice’s terse brief does not contain a single citation to
any authority.
11
Dr. Zerga’s report of that examination is several pages long. See
Record, p. 381-386. Within that report is the following statement:
“The patient complained of headaches to Dr. Ahmed. She did not make
that complaint today. . . . This patient fell down the steps on
November 30, 2001, suffering contusion with resulting headaches,
neck pain and back pain. Her headaches, neck pain and back pain
have resolved.” Id. at 383.
12
See, e.g., Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52
(Ky. 2000). (“A worker's testimony is competent evidence of his
physical condition and of his ability to perform various activities
both before and after being injured.”). Justice’s argument is
unique in that unlike a claimant’s typical complaint that the ALJ
failed to give weight to his or her statements, she essentially
wants the ALJ to discount her statements to Dr. Zerga.
13
See, e.g., Department of Economic Security v. Sizemore, 471 S.W.2d
733, 736 (Ky. 1971). (“The employer insists that the history for
medical purposes, as given by Sizemore and upon which Dr. Leatherman
partly based his opinion, contained self-contradictory statements
and the history is contrary to other evidence presented. Therefore,
says the employer, the opinion of Dr. Leatherman is not competent
and should be excluded. It would prolong this opinion unduly to
recite the pertinent evidence. In our opinion the objections go to
the weight of the evidence rather than its competency and it appears
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to depose Dr. Zerga, thereby foregoing the opportunity to test
his perception that her work-related injuries had been
resolved. 14
Clearly, Dr. Zerga’s opinions are at odds with those
of other physicians.
But, as previously noted, Dr. Zerga’s
conclusions are admissible and, therefore, constitute
substantial evidence to support the ALJ’s findings.
Thus, as
the ALJ has the unfettered right to choose which evidence to
believe 15 and as the ALJ’s decision is supported by the
conclusions of Dr. Zerga, we cannot say that the evidence is so
overwhelming as to compel a finding in Justice’s behalf. 16
Accordingly, we must affirm.
For the foregoing reasons, the decision of the
Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Randy G. Clark
Pikeville, Kentucky
Ronald J. Pohl
P. Gregory Richmond
Lexington, Kentucky
to us the evidence contains sufficient probative value to place it
properly within the area of decision by the Board.”)
14
Such a deposition could have also afforded Justice the opportunity
to shed light on why Dr. Zerga reported that Justice was not
suffering from headaches, despite the fact that she told other
physicians that she did suffer from headaches.
15
Magic Coal Co., 19 S.W.3d at 96.
16
Wolf Creek Collieries, 673 S.W.2d at 736
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