OWENSBORO BODY SHOP, INC. VS. COMPENSATION DAUGHERTY (TIMOTHY), ET AL.Annotate this Case
RENDERED: AUGUST 29, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
OWENSBORO BODY SHOP, INC.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-65355
TIMOTHY DAUGHERTY; HON. MARCEL
SMITH, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
** ** ** ** **
BEFORE: CLAYTON AND DIXON, JUDGES; GRAVES1, SENIOR JUDGE.
CLAYTON, JUDGE: Owensboro Body Shop (OBS) petitions for review from an
order of the Workers’ Compensation Board (Board) reversing the opinion of the
administrative law judge (ALJ).
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
The Appellee, Timothy Daugherty, was an employee of OBS. For
most of his working life, Daugherty has been employed as an automobile painter.
He is left-hand dominant and his work requires him to hold a paint gun. His job is
to get the surface ready for painting. This involves using an orbital sander which
requires him to put the whole weight of his hand on the device since it fits inside
his palm. He would also sand, tape, wash, mask and paint the objects. When he
found it too difficult, Daugherty left OBS and began working for West Side
Wrecker Service. In that job, he drives a roll back and makes less wages than he
did at OBS.
Daugherty contends that he injured his left wrist on December 5,
2003. He went to an immediate care facility and was referred to Dr. Michael
Kavolus who diagnosed a ganglion cyst which was too small to remove. An MRI
of his left wrist which was performed on January 6, 2004, indicated a 4mm
possible ganglion cyst between the trapezoid and capitate bones immediataely
proximal to the middle finger MCP joint. It also revealed that the marrow signal in
the scaphoid bone was heterogeneous with scattered bright areas on fat sat images.
Daugherty continued to work and to perform his regular job duties. After the
retirement of Dr. Kavolus, KESA, the workers’ compensation carrier on the claim,
had Daugherty seek further medical treatment from Dr. James Carothers. Dr.
Carothers then sent him to Dr. David Boles, who, in turn, sent him to Dr. Thomas
Wolff in Louisville.
Dr. Wolff told Daugherty he would need a vascular bone graft,
however, KESA did not approve the procedure and he did not have it done.
Daugherty has testified that he continues to have severe problems with his hands.
It was Dr. Carothers who diagnosed a problem with his scaphoid on October 14,
2005. He made this diagnosis based upon the change in MRI between Daugherty’s
visits to Dr. Kavolus and his visit to Dr. Carothers.
On November 18, 2005, Dr. Rodrigo Moreno prepared a medical
report in which he concluded that Daugherty’s work was not the cause of his
pathology, but it did aggravate it. He set forth in his opinion that Daugherty’s
wrist problem was due to the loss of blood supply to the bone and concluded that
his prognosis for surgical intervention was good with maximum results to be seen
six months after surgery.
Dr. Moreno concluded that Daugherty’s job aggravated his current
conditions leading to the need for surgical intervention and that he would retain
permanent restrictions following surgery. Dr. Moreno also diagnosed Daugherty
as having Preiser’s disease.
The ALJ found Daugherty’s complaints to be non-compensable based
upon the following:
The first issue is causation/work relatedness. I am
most persuaded by the opinions expressed by Dr.
Moreno. They are supported by objective medical
findings. Preiser’s disease, an avascular necrosis,
developed with time. The condition is a diminished
blood flow to the scaphoid bone. The bone died.
Plaintiff’s job activities could aggravate the condition.
Dr. Moreno said, “In my medical opinion, his job
has aggravated his current condtion leading to the need
for surgical intervention. His work has contributed to his
Plaintiff argues that this situation is akin to
degenerative disk disease. I am persuaded by plaintiff’s
description of his work activities. The activities are
certainly the type that would aggravate such a condition.
However, in order to be compensable, a condition must
be caused or at least aroused into disabling reality by the
work activity. Review of the medical evidence going
back over the years demonstrates that plaintiff had an
active, non-work-related condition of his wrist which was
aggravated, but neither caused nor aroused, by work
Decision of the Board, p. 14.
The Board found that the ALJ’s findings were not based on any
factual consideration such as credibility or weight to be attributed to the evidence,
but on a misconceived notion that an aggravation of a pre-existing active non
work-related condition cannot constitute an injury. The Board further found:
After carefully scrutinizing the evidence and the
ALJ’s findings and holding, we conclude that the ALJ
erred as a matter of law in dismissing Daugherty’s claim
as being noncompensable. Simply state, the ALJ erred as
a matter of law in her finding that a work-related injury
that aggravates an active non work-related condition can
not be compensable. See Robertson v. United Parcel
Service, [64 S.W.3d 284 (Ky. 2001)]. See also KRS
342.0011(1). . . . [T]he ALJ found Dr. Moreno’s
opinion to be persuasive. It is undisputed that pursuant to
Dr. Moreno’s testimony and reports, Daugherty’s job
aggravated the Preiser’s disease. To this extent, it is
undisputed that based on Dr. Moreno’s medical report
that the work-related incident resulted in at least a flareup of symptoms of Daugherty’s non work-related
Preiser’s disease. Based on Dr. Moreno’s testimony on
which the ALJ relied, it is clear the evidence produced a
harmful change as a result of the repetitive work activity
causing a flare-up of symptoms of a pre-existing non
work-related condition. To this extent, Dr. Moreno’s
testimony points to the fact that Daugherty suffered a
work-related injury and that the ALJ erred as a matter of
law in dismissing the claim in its entirety.
Id. at pp. 18-19.
As a reviewing Court, we must decide, in light of the record, whether
the evidence is “so overwhelming, . . . as to have compelled a finding in . . . favor”
of the appellant. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
When this Court reviews a decision of the Board, our function “is to correct the
Board only where the 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).
“It has long been the rule that the claimant bears the burden of proof
and the risk of nonpersuasion before the fact-finder with regard to every element of
a workers’ compensation claim,” Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky.
2000). We recognize that it is within the broad discretion of the ALJ “to believe
part of the evidence and disbelieve other parts of the evidence whether it came
from the same witness or the same adversary party’s total proof.” Caudill v.
Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
First, Appellant contends that the Board substituted its judgment for
that of the ALJ. We disagree. This Court agrees that it is the task of the ALJ to
weigh the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). She
must weigh the evidence, draw inferences and determine whether witnesses are
credible. Magic Coal Co,. 19 S.W.3d at 88. In this case, the Board used the ALJ’s
findings, but applied the law for a different result. The Board found that the
evidence as weighed and found by the ALJ supported the conclusion that
Daugherty’s non work-related condition was aggravated by his work. While the
ALJ found that his claim was non-compensable based on this same conclusion, the
Board found that it was not.
Second, Appellant contends that Daugherty’s appeal to the Board
should have been dismissed for his failure to file a petition for reconsideration with
the ALJ. KRS 342.281 is statutorily similar to Kentucky Rules of Civil Procedure
(CR) 52.04 in that it requires issues be raised in a petition for reconsideration in
order to preserve patent error or omissions of fact for judicial review.
OBS contends that Daugherty’s failure to file a petition for
reconsideration with the ALJ is fatal to his appeal pursuant to Eaton Axle Corp. v.
Nally, 688 S.W.2d 334 (Ky. 1985) and Halls Hardwood Floor Company v.
Stapleton, 16 S.W.3d 327 (Ky. App. 2000). OBS also raised this issue before the
Board, which held that issues of law could be directly appealed without filing a
petition for reconsideration. This Court agrees with the Board. Under BraschBarry General Contractors v. Jones, 175 S.W.3d 81 (Ky. 2005), issues of law may
be directly appealed to the Board. While OBS argues that the ALJ’s determination
that Daugherty’s condition was not caused nor “aroused” by work activity, it is
clear that the Board found it was compensable as a matter of law since it was
aggravated by such activity. Thus, the Board was correct in finding Daugherty was
not required to file a petition for reconsideration with the ALJ.
Appellant’s third contention is that there was substantial evidence to
support the ultimate decision reached by the ALJ. An Appellate Court should
determine whether, in light of the record in its entirety, the evidence compels a
finding in favor of the Appellant. Wolf Creek Collieries, 673 S.W.2d at 735. An
Appellate Court should only reverse a decision of the Board when it has
overlooked or misconstrued controlling law or so flagrantly erred in evaluating the
evidence that it has caused a gross injustice. Western Baptist Hospital, 827 S.W.2d
In the present case, the testimony presented to the ALJ through Dr.
Moreno and Daugherty was that his work activities aggravated his non workrelated injury. The Board used the same facts as those found by the ALJ, however,
the Board determined that the ALJ had erred as a matter of law in determining
Daugherty’s injury was non-compensable. This Court agrees and will not disturb
the Board’s finding.
Finally, Appellant contends that Daugherty’s condition is not
compensable. As set forth above, the ALJ determined that Daugherty’s injury was
not compensable as a matter of law. The Board, on the other hand, found that it
was. Simply put, the Board was correct in its determination that a work-related
injury which aggravates an active non work-related injury is compensable. See
Robertson, 64 SW3d at 284 and KRS 342.0011(1).
This Court will affirm the decision of the Board.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Samuel J. Bach
M. Michele Cecil