BUTLER (RITA) VS. COMPENSATION HARDIN MEMORIAL HOSPITAL , ET AL.Annotate this Case
RENDERED: SEPTEMBER 12, 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NOT TO BE PUBLISHED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-06-96435
HARDIN MEMORIAL HOSPITAL;
HON. R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE;
WORKERS' COMPENSATION BOARD
** ** ** ** **
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
The Appellant, Rita Butler, worked for Appellee, Hardin Memorial
Hospital (Hardin) beginning in May of 1997. Her job entailed various
housekeeping duties for the hospital. On October 26, 2005, Ms. Butler broke her
ankle when she climbed on a chair to clean a television in the hospital’s isolation
room. The injury actually occurred when she was stepping off the chair she had
used to gain access to the television.
Immediately after injury, Ms. Butler was taken from the room in a
wheelchair to the “Workwell Complex” where she was examined. Physicians at
the site diagnosed a non-displaced distal fibula fracture. Ms. Butler was
subsequently diagnosed by Dr. Marcis Craig on October 28, 2005. Dr. Craig made
the same diagnosis as the physicians at the Workwell Complex; i.e., that she had a
After being put on “light duty,” Ms. Butler did sitting work only
where she mainly folded towels for Hardin, but she worked the same hours for the
same earnings as she had prior to her injury. After twelve (12) weeks of working
light duty, Ms. Butler’s position was terminated. She then began employment with
Denny’s Restaurant (Denny’s) as a dishwasher and table busser. At Denny’s, Ms.
Butler makes $8.00 per hour and works between 29 and 40 hours per week.
Ms. Butler brought a workers’ compensation action asserting that she
had partial permanent damage (PPD) associated with her October injury. The ALJ,
after listening to testimony from physicians employed by Ms. Butler and Hardin as
well as an Independent Medical Examiner, found that Hardin was liable for past
medicals, however, did not find that Mrs. Butler had a PPD. Ms. Butler then
appealed this decision to the Board who upheld the findings of the ALJ. This
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. Butler contends that the Board overlooked and/or misconstrued
controlling law and erred in affirming the ALJ’s dismissal of her claim for future
medical benefits arising from her work-related injury. Hardin, however, argues
that Ms. Butler was not awarded future medical benefits because it was determined
that she did not need any further medical treatment.
KRS 342.020(1) provides in pertinent part, that
[i]n addition to all other compensation provided in
this chapter, the employer shall pay for the cure and relief
from the effects of an injury or occupational disease the
medical, surgical, and hospital treatment, including
nursing, medical, and surgical supplies and appliances, as
may reasonably be required at the time of the injury and
thereafter during disability, or as may be required for the
cure and treatment of an occupational disease. The
employer's obligation to pay the benefits specified in this
section shall continue for so long as the employee is
disabled regardless of the duration of the employee's
income benefits. . . .
Ms. Butler contends that it was not necessary for the ALJ to find she
had a permanent impairment in order to award future medicals under KRS
342.020(1). She cites FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky.
2007) in support of her argument. In FEI, the Court found that while:
[m]indful of the relationship between impairment and
disability under the . . . Act, we conclude that disability
exists for the purposes of KRS 342.020(1) for so long as
a work-related injury causes impairment, regardless of
whether the impairment rises to a level that it warrants a
permanent impairment rating, permanent disability
rating, or permanent income benefits.
Id. at pp. 318-19.
In this action the Board found that:
[t]he ALJ reviewed the evidence contained in the
record in considerable detail. The ALJ first determined
that Butler met her burden of proving she suffered a work
related injury as defined by the act inasmuch as when she
fell she sustained a fractured [sic] to her left ankle. On
the issue of extent and duration the ALJ relied on the
evidence from Dr. Schiller who opined Butler did not
retain a functional impairment rating to the left ankle as a
result of the October 26, 2005 work injury.
Board Opinion at pp. 6-7.
In Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001), the
Supreme Court of Kentucky held that it is indeed possible for a claimant to suffer a
work-related injury for which temporary medical benefits may be paid, but for the
claimant to fail to prove that she has a need for future medical benefits associated
with the injury. In Robertson, the Court found that “the claimant was not entitled
to income benefits for permanent, partial disability or entitled to future medical
expenses, but he was entitled to be compensated for the medical expenses that
were incurred in treating the temporary flare-up of symptoms that resulted from the
incident.” Id. at 286. We find this case to be applicable in this situation as well.
In this case, “Dr. Schiller noted in his report no additional treatment in
the future was necessary. . . . [Further,] Dr Schiller stated there was no evidence
Butler had a fracture since it had completely healed. He indicated no fracture line
was visible so that if a fracture was present it was a nondisplaced hairline fracture
which had completely healed. Furthermore it was a non-articular fracture and
therefore did not have the propensity to develop ankle arthrosis.” Board’s Opinion
at p. 11.
The ALJ, therefore, based his decision on medical testimony in the
record and the Board’s decision affirming his decision was not in error.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher P. Evensen
Michael P. Reilly