JORDAN (SILDRA) VS. COMPENSATION TELERENT LEASING INCORPORATED , ET AL.Annotate this Case
RENDERED: OCTOBER 10, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-02-01606
TELERENT LEASING INCORPORATED;
HON. GRANT S. ROARK, ADMINISTRATIVE
LAW JUDGE; WORKERS' COMPENSATION
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BEFORE: CLAYTON, NICKELL, AND TAYLOR, JUDGES.
CLAYTON, JUDGE: This is an appeal from a decision of the Workers’
Compensation Board (“Board”) affirming a decision of the Administrative Law
Judge (“ALJ”) dismissing the Appellant’s motion to reopen her case due to an
alleged worsening of her condition.
Appellant, Sildra Jordan, worked for Appellee, Telerent Leasing
Incorporated (“Telerent”) in Pineville, Kentucky. Telerent is an operation which
leases televisions to patients at local hospitals. Ms. Jordan collected lease
payments from and moved televisions for patients at Pineville Community
Hospital for Telerent.
Ms. Jordan was injured on February 24, 2002, when a patient kicked a
table into her while she was in the process of removing a television set from the
patient’s room. Ms. Jordan stated that she had a popping sensation at the base of
her neck at the time of the injury and that the pain radiated all the way down her
As a result of the injury, Ms. Jordan filed a workers’ compensation
claim. She asserted that the accident caused permanent injuries to her neck, back
and right shoulder. After a hearing, the ALJ awarded Ms. Jordan benefits based on
a finding of a five percent (5%) permanent whole body impairment. The ALJ did
not find that Ms. Jordan was incapable of returning to her work with Telerent.
On February 28, 2006, Ms. Jordan moved to reopen her claim based
on a worsening of her physical condition. She also claimed entitlement to an
increase in her permanent partial disability benefits and/or total disability. As part
of the reopening of the case, Ms. Jordan was examined by Dr. William Lester who
had originally diagnosed lumbar and cervical strain, as well as a rotator cuff
In the reopening of Ms. Jordan’s case, Dr. Lester performed a
comparison between her original medical records and those performed after her
award. Based upon his examination, Dr. Lester gave his opinion that there was no
change in Ms. Jordan’s impairment rating regarding her lumbar complaints. As to
her cervical issues, he also found that nothing would warrant a change in her
impairment rating in his opinion.
On April 19, 2007, a final hearing was held and on June 18, 2007, the
ALJ found that Ms. Jordan’s physical condition had not significantly worsened
since her original award and declined to award her any additional or increased
income benefits. Ms. Jordan appealed this finding to the Board which affirmed the
ALJ’s determination. Ms. Jordan has now brought her appeal with this Court.
STANDARD OF REVIEW
As a reviewing Court, we must decide, in light of the record, whether
the evidence is so overwhelming as to compel 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, its function is to correct the Board when we
believe it “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).
Ms. Jordan argues on appeal that the Board erred in upholding the
ALJ’s decision. She contends that the opinion of her treating physician, Dr.
Valencia, is that her condition has worsened. She also asserts that the treating
physician, rather than one brought in as an expert witness, is in the best position to
make decisions regarding impairment.
An ALJ is in the best position to weigh the evidence of claims brought
before him. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418-19 (Ky. 1985).
As set forth above, reversal of an ALJ’s decision must be based on evidence so
overwhelming that no reasonable person could reach the decision that the ALJ did
in his findings. REO Mechanical v. Barnes, 691 S.W.2d 224, 226 (Ky. App.
Kentucky courts have specifically chosen not to have a “treating
physicians rule.” Wells v. Morris, 698 S.W.2d 321 (Ky. App. 1985). Of the
physicians who testified at the hearing, only Dr. Lester had observed Ms. Jordan
both at the time of her original injury and at the reopening due to a worsening
condition. As found by the Board, the ALJ acted within his authority in choosing
which of the physicians’ testimony was most credible. Paramount Foods, 695
S.W.2d at 418-19. There was sufficient evidence in the record to support the
ALJ’s finding that Ms. Jordan’s impairment had not worsened since her original
award. Thus, we will affirm the decision of the Board.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan Turner Landis
Patrick J. Murphy, II