PATRICK PROCESSING, LLC v. JAMES E. WHITT; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
NOVEMBER 3, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000512-WC
PATRICK PROCESSING, LLC
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-04-01663
JAMES E. WHITT;
HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE;
AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TAYLOR AND WINE, JUDGES; BUCKINGHAM,1 SENIOR JUDGE.
BUCKINGHAM, SENIOR JUDGE:
Patrick Processing, LLC, petitions
for review of an opinion of the Workers’ Compensation Board
(Board) that affirmed in part and vacated in part and remanded
an opinion and order of an administrative law judge (ALJ)
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
dismissing James E. Whitt’s claim for benefits due to an alleged
work-related accident.
We affirm.
On April 14, 2004, Whitt was working for Patrick
Processing as a belt man when he hurt his low back while lifting
a wheelbarrow full of rock dust.
Although he did not work much
the rest of the day, Whitt finished his shift and reported the
injury to his supervisor.
Whitt testified that he continued to
work in pain every day until May 28 when he could no longer work
because the pain prevented him from doing so.
On May 29, 2004,
Whitt sought medical treatment at a hospital emergency room.
Over the next several months, Whitt was treated for
pain with pain medication by his family physician, Dr. Brian
Francis.
Dr. Francis also ordered an MRI.
Because Dr. Francis
was not in the provider network of Patrick Processing’s workers’
compensation carrier, the MRI was not approved and Whitt was
required to designate a different physician.
On August 12, 2004, Whitt again reported to a hospital
emergency room and was treated and discharged with a diagnosis
of low back pain.
Dr. Timothy Wagner, a Board-certified
orthopedic surgeon, saw Whitt on September 1, 2004, for an
independent medical examination at the request of Patrick
Processing.
Further, following an examination on September 16,
2004, by a physician, Dr. Sai P. Gutti, who was in the carrier’s
provider network, an MRI was arranged.
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Before having the MRI, Whitt was involved in a motor
vehicle accident on October 2, 2004.
hospital by ambulance.
He was transported to a
At the hospital, Whitt complained of
pain in his neck, head, and right hand.
October 12, 2004.
An MRI was performed on
It revealed bulging at L4-L5 as well as a
disk herniation to the right of L5-S1.
Dr. Wagner opined that he did not believe Whitt’s disk
herniation was related to the work-related incident.
Rather, he
stated that the condition was due to the natural process of
Whitt’s degenerating disk at L5-S1, which had occurred since his
initial evaluation and was worsened by the motor vehicle
accident.
Dr. Wagner specifically stated that he believed
Whitt’s work-related injury was only a strain to the lower back
and that the disk herniation was not related to that injury.
Dr. Anbu Nadar, a Board-certified orthopedic surgeon,
performed an independent medical examination at the request of
Whitt’s attorney.
Dr. Nadar diagnosed Whitt as having a
lumbosacral strain with radiculopathy and herniation at L5-S1.
Dr. Nadar opined that Whitt’s condition was due to the April
2004 work-related injury.
Whitt’s claim for workers’ compensation benefits was
heard by an ALJ.
Whitt argued that the disk herniation pre-
dated the motor vehicle accident and was simply undiscovered
until later.
He pointed to medical evidence that his radicular
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complaints existed prior to the vehicle accident.
On the other
hand, Patrick Processing argued that “(t)he medical evidence of
record establishes that the Plaintiff suffered a low back strain
as a result of the work-related injury.”
It further argued that
the disk herniation was attributable only to the vehicle
accident.
It did not present any argument with respect to
income or medical benefits claimed for the time period between
May 28, 2004, Whitt’s last day of work, and October 4, 2004, the
date of the vehicle accident.
The ALJ was not convinced that Whitt suffered a
herniated disk at the time of the April 2004 work-related
injury.
The ALJ found the testimony of Dr. Wagner that the
herniated disk was the result of the vehicle accident to be
credible.
Therefore, the ALJ dismissed Whitt’s claim for
benefits.
Significantly, the ALJ did not mention Whitt’s low
back strain.
Whitt appealed to the Workers’ Compensation Board.
The Board found “uncontradicted evidence” that Whitt had
suffered an injury on April 14, 2004.
Thus, it concluded that
Whitt was entitled to income and medical benefits commensurate
with any disability resulting from the injury.
The Board
emphasized that “the ALJ’s finding that any permanent injury to
his back is due to the MVA does not rule out an award of income
and medical benefits for the interim period, May 28, 2004,
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through October 1, 2004, when he was unable to work and
undergoing medical treatment.”
The Board also noted that even
Dr. Wagner had acknowledged that Whitt had suffered a low back
strain in April 2004.
Further, the Board stated as follows:
We believe there is an incongruity
between the foregoing findings and the ALJ’s
dismissal of Whitt’s claim outright. The
parties specifically preserved the issues of
extent and duration of disability,
overpayment of TTD benefits, AWW and correct
TTD rate, and entitlement to medical
benefits. The ALJ did not rule on any of
these particular issues, having dismissed
Whitt’s claim in its entirety. We agree
with Whitt, however, that some additional
explanation is needed to make the jump from
the ALJ’s finding that Whitt failed to prove
that the herniated disk was work-related and
that Whitt failed to prove he suffered a
work-related injury. There is substantial
evidence to support the ALJ’s conclusion
that Whitt’s herniated disk was due to the
October 2, 2004, MVA and we do not disturb
that finding.
Citing Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky.
2001), the Board noted it had “consistently held that, following
the December 12, 1996, amendments to the Workers’ Compensation
Act that it is possible for a claimant to submit evidence of a
temporary injury for which TTD and temporary medical benefits
may be paid and yet fail in his burden to prove a permanent
harmful change to the human organism for which permanent
benefits are appropriate.”
-5-
Further, the Board noted that an ALJ had the authority
to reject uncontradicted testimony so long as a sufficient
explanation of its reasons for doing so was given.
See
Commonwealth v. Workers’ Compensation Board, 697 S.W.2d 540, 541
(Ky.App. 1985).
Finding that there was uncontradicted evidence
that Whitt had suffered a work-related injury on April 14, 2004,
the Board concluded that the case should be remanded to the ALJ
since the ALJ’s opinion “lacks sufficient explanation for his
refusal to award even temporary income or medical benefits up to
that point.”
The Board instructed the ALJ to “either issue an
award commensurate with the evidence or to explain his reason
for rejecting same.”
This petition for review by Patrick
Processing followed.
Patrick Processing argues to this court that the Board
exceeded its authority in its review of the ALJ’s decision.
Noting that the burden of proof was on Whitt to convince the
Board that the evidence compelled an award in his favor, Patrick
Processing contends that Whitt could not meet that burden
because Dr. Wagner’s testimony supported the ALJ’s decision.
Patrick Processing overlooks the fact that there was
uncontradicted evidence that Whitt suffered a work-related back
injury, an injury unrelated to the herniated disk.
Wagner acknowledged that fact in his testimony.
Even Dr.
We agree with
the Board that in light of the uncontradicted evidence of the
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work-related back injury, the ALJ could not reject Whitt’s claim
in that regard without giving a sufficient explanation of his
reasons for doing so.
Board, supra.
See Commonwealth v. Workers’ Compensation
The Board acted properly in remanding the case to
the ALJ to issue an award or to explain his reasons for not
doing so.
The Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
W. Barry Lewis
Hazard, Kentucky
Dennis James Keenan
South Williamson, Kentucky
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