PEGGY ENGLEMAN v. RUMPKE; HON. DONNA TERRY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
AUGUST 4, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002196-WC
PEGGY ENGLEMAN
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-98-68091
RUMPKE; HON. DONNA TERRY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; KNOPF,1 SENIOR JUDGE; MILLER,2
SPECIAL JUDGE.
COMBS, CHIEF JUDGE:
Peggy Redmon-Engleman petitions this Court
for review of a decision of the Workers Compensation Board which
affirmed the ALJ’s denial of her claim of a worsening of a workrelated injury.
On appeal, she argues that the Board erred in
failing to rule that the findings of the university evaluator in
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
2
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
the original case should have been given presumptive weight.
She also contends that res judicata should apply to dictate that
result at this juncture since she was found to have a workrelated injury in the original case.
arguments.
We disagree with both
Therefore, we affirm.
In 1998, Peggy received workers’ compensation benefits
after suffering a work-related injury to her lower back.
In
August 2003, she filed a motion to re-open the claim, alleging a
worsening of her condition related to the 1998 injury.
In
October 2003, Dr. Glassman and Dr. Raque, her treating
physicians, performed a myelogram that revealed a disc bulge in
her lower back.
In April 2004, a decompression and spinal
fusion surgery was performed.
Peggy asked Dr. Glassman to sign
a certification form that her condition was related to the work
injury.
He complied with that request but also checked a box on
the form that indicated that he did not perform ratings.
After a hearing, the ALJ held that Peggy had not
established that her current condition was a worsening of the
previous work-related injury and denied additional benefits.
She objected to these findings and requested a new hearing and
new findings.
She argued that by signing the certification, Dr.
Glassman had expressed the opinion that the current disc bulge
was a worsening of the 1998 injury.
The ALJ denied her motion,
and the Board affirmed the ALJ’s holding.
-2-
This appeal followed.
On a re-opening, the claimant must show that any
increased disability or change of condition is the direct result
of the original injury for which benefits were awarded.
Coal Co. v. Roark, 407 S.W.2d 411 (Ky. 1966).
Sky Top
On appeal, Peggy
argues that the ALJ should have given presumptive weight to the
opinion of university evaluator Dr. Timothy Prince.
In her
original case, Dr. Prince performed an evaluation and stated
that her impairment was due in part to a pre-existing dormant
condition, a pars defect that was activated by the 1998 injury.
Dr. Prince found the pre-existing condition dormant but
activated by the work-related injury, and Peggy argues that his
finding should have been given presumptive weight over the
opinions of two independent medical evaluators, Dr. Wolens and
Dr. Jacob.
Noting her history of motor vehicle accidents prior to
the 1998 injury, Dr. Woolens said that the 1998 work injury
could not be considered directly related to her current
condition but that it was merely additive to the effects of
other events.
Dr. Jacob found no connection between the current
complaint and the 1998 injury.
The claimant bears the burden of proving the elements
of her case and carries the risk of non-persuasion.
Stice, 576 S.W.2d 276 (Ky.App. 1979).
Snawder v.
Where a claimant appeals
an unfavorable decision, the standard on appeal is whether the
-3-
evidence compelled a contrary result.
Crum, 673 S.W.2d 735 (Ky.App. 1984).
Wolf Creek Collieries v.
In order for evidence to
meet this rigid standard, it must be so overwhelming that no
reasonable person could have reached the same conclusion as the
ALJ.
REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985).
The presence of some evidence in the record that would support a
contrary conclusion is not sufficient for the claimant to
prevail.
1974).
McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky.
As long as any evidence of substance supports the ALJ’s
opinion, it cannot be said that the evidence compels a different
result.
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
In the case before us, Peggy asks this Court to
interpret her evidence in a manner particularly favorable to her
by holding that the opinion of Dr. Prince carried presumptive
weight over that of the two other examining physicians.
is no authority for such an interpretation.
There
On a re-opening, a
claimant alleging a worsening of a work-related injury must
demonstrate the causal link between the current complaint and
the injury for which she originally received compensation.
While clearly persuasive in the original case, the medical
opinion of Dr. Prince does not carry presumptive weight as to
establish that future back injuries necessarily relate to the
1998 injury because of the dormant condition that became active
at that time.
-4-
The evidence presented by Peggy did not persuade the
ALJ that her current complaints were definitely linked to the
1998 injury.
The ALJ’s finding was supported by substantial
evidence -- primarily the opinion of Dr. Jacob, who concluded
that the injury was not related to the previous injury.
The ALJ
had the prerogative of electing to rely on that evidence.
cannot substitute our judgment for that of the ALJ.
We
Paramount
Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), Francis,
supra.
The decision of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE RUMPKE:
Wayne C. Daub
Louisville, Kentucky
Wesley G. Gatlin
Louisville, Kentucky
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