SEAVER (JOHN) VS. COMPENSATION GALLOWAY ELECTRIC , ET AL.Annotate this Case
RENDERED: AUGUST 15, 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NOT TO BE PUBLISHED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-02-66224
GALLOWAY ELECTRIC; HON. GRANT S.
ROARK, ADMINISTRATIVE LAW JUDGE;
HON. DONNA H. TERRY, CHIEF
ADMINISTRATIVE LAW JUDGE; DEPARTMENT
OF WORKERS CLAIMS AND WORKERS'
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BEFORE: ACREE, VANMETER, AND WINE, JUDGES.
ACREE, JUDGE: John Seaver appeals, pro se, from an opinion of the Workers’
Compensation Board affirming two orders from Administrative Law Judges who
presided over the fact-finding portion of this case. The first ALJ found that Seaver
had sustained a work-related injury to his neck and awarded him benefits as a
result, but found in favor of his employer, Galloway Electric, with regard to
Seaver’s claims for thoracic and lumbar injuries, as well as secondary
psychological overlay. The second ALJ denied, in relevant part, Seaver’s petition
for reconsideration. We affirm the Board.
Seaver, a high-school educated electrician, was in the employ of
Galloway when he was struck from behind and dragged by a forklift on September
27, 2002. He filed an application for workers’ compensation benefits listing lower,
middle, and upper back, neck, knee, and ankle injuries. Later, he amended the
application to include claims of psychological impairment arising from his injury
The ALJ issued an initial order on July 17, 2007, finding that the
medical evidence only supported Seaver’s claim that his neck was injured in the
forklift accident. His remaining claims were dismissed with prejudice. The
evidence before the fact finder included a plethora of medical opinions, as to both
Seaver’s physical and psychological health. The ALJ’s summary of the medical
evidence presented accounted for thirteen pages of a twenty-page opinion. Seaver
was awarded temporary total disability, permanent partial disability, and medical
expenses. After the initial order, both Seaver and Galloway filed motions for
reconsideration. However, an ex parte communication between Seaver and the
ALJ led to the claim being reassigned. On August 20, 2007, the second ALJ
issued an order addressing the motions for reconsideration. The original order,
awarding benefits based on Seaver’s neck injury and dismissing his other claims of
injury, was essentially upheld. Seaver’s counsel subsequently withdrew, and
Seaver appealed to the Board pro se.
Seaver argued that the ALJ erred in denying him permanent total
disability benefits due to his neck injury, erroneously dismissed his claim for low
back injury without fully understanding his condition, and erred in relying on the
opinions of Dr. Ellen Ballard and Dr. Robert Granacher in dismissing most of his
injury claims. The Board’s opinion included another lengthy summary of the
evidence presented by the parties. After reviewing all of it, the Board determined
that the ALJ had reached the correct result.
It is obvious from Seaver’s pro se brief that he feels
he has been dealt with unfairly. Even so, as a matter of
law the decision of the ALJ in this case must be affirmed.
Although we understand Seaver is frustrated at the
outcome of his workers’ compensation claim, we also
recognize the ALJ’s job as fact finder is a difficult
responsibility. As a rule in every worker’s compensation
claim, both sides resolutely contend they have presented
evidence of “the truth” concerning those matters at issue.
It is for this reason that in cases where the evidence is
conflicting regarding an issue, the facts concerning that
issue as determined by the ALJ are afforded vast
deference as a matter of law on appellate review.
The Board ultimately concluded that Seaver did not meet the evidentiary burden
required to overturn an ALJ’s decision on appeal. Consequently, Seaver appeals to
us from the Board’s opinion and order.
On appeal, Seaver raises the same arguments he pursued
unsuccessfully before the Board. Thus, we begin with an examination of the
standard we use when reviewing a decision of the Workers’ Compensation Board.
First, we look to see whether the Board has misconstrued the law or flagrantly
erred in evaluating the evidence to the point of causing gross injustice. Daniel v.
Armco Steel Company, 913 S.W.2d 797, 798 (Ky. App. 1995). Since the Board
upheld the ALJ’s factual and legal findings, we must determine whether the ALJ’s
findings were supported by substantial evidence. Special Fund v. Francis, 708
S.W.2d 641, 643 (Ky. 1986). Substantial evidence has been defined as “evidence
of substance and relevant consequence having the fitness to induce conviction in
the minds of reasonable men.” Smyzer v. B. F. Goodrich Chemical Co., 474
S.W.2d 367, 369 (Ky. 1971).
The ALJ relied heavily on the medical reports from Dr. Ballard and
Dr. Granacher. Dr. Ballard first evaluated Seaver in October 2004. In addition she
performed an extensive review of his medical records before forming her opinion.
Nevertheless, she found that the only evidence of injury related to the forklift
accident was the injury to Seaver’s neck. Thus, she assessed him a five percent
impairment rating. This rating did not change after a second medical evaluation
and review of additional medical records performed almost two years later. Dr.
Granacher attributed Seaver’s current psychological difficulties to the breakup of
his second marriage. He also noted that Seaver had a lengthy history of troubled
behavior and mental health issues, particularly in the area of his romantic
relationships. While Dr. Granacher concluded that Seaver currently lacked the
mental capacity to resume his work as an electrician, he also stated that Seaver did
not suffer any psychiatric impairment due to his workplace injury.
Seaver is correct in pointing out that the voluminous medical evidence
before the ALJ was contradictory. For his part, Seaver presented opinions from
numerous medical providers supporting his claims that he suffered multiple
physical injuries from the forklift accident. In particular, Dr. David Johnson
assessed Seaver with a whole body impairment of nineteen percent, predominantly
due to thoracic and lumbar impairments. Several mental health professionals
opined that Seaver’s psychological problems resulted from the pain of his injuries
and his inability to work, which led to depression and anxiety. Dr. Tom Wagner, a
psychologist and vocational expert, evaluated Seaver and expressed the opinion
that he was completely occupationally disabled due to the medical restrictions
imposed by Dr. Johnson. Dr. Wagner further opined that Seaver’s depression was
caused by his work-related injury.
Nevertheless, it is a well-recognized principle in workers’
compensation litigation that the ALJ has the sole discretion to evaluate the weight
of the evidence presented. Whittaker v. Rowland, 998 S.W.2d 478, 481 (Ky.
1999). When the evidence conflicts, “the finder of fact, and not the reviewing
court, has the authority to determine the quality, character and substance of the
evidence presented[.]” Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419
(Ky. 1985). Further, the ALJ may choose to believe or disbelieve the proof of
either party or even portions of a party’s proof. Caudill v. Maloney’s Discount
Stores, 569 S.W.2d 15, 16 (Ky. 1977).
If the claimant in a workers’ compensation case is unsuccessful before
the ALJ, the question during appellate review is “whether the evidence was so
overwhelming, upon consideration of the entire record, as to have compelled a
finding in his favor.” Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.
App. 1984). “Compelling evidence is evidence 'so overwhelming that no
reasonable person could reach the conclusion' of the ALJ.” Neace v. Adena
Processing, 7 S.W.3d 382, 385 (Ky. App. 1999). (Citation omitted.)
Like the Board, we recognize that Seaver is disappointed with the
result of the ALJ’s determination of his claims. However, as the Board so
thoroughly explained in its opinion and order, Seaver’s arguments on appeal fall
well short of showing that the evidence which he presented to the ALJ compelled a
finding in his favor. Consequently, we are bound to uphold the determination of
the fact finder that only Seaver’s neck injury and the related headaches are the
results of a compensable, work-related accident.
For the foregoing reasons, the opinion of the Worker’s Compensation
Board is affirmed.
BRIEF FOR APPELLANT:
John Seaver, pro se
BRIEF FOR APPELLEE,