WOLFORD & WETHINGTON LUMBER VS. COMPENSATION DERRINGER (JOHNNY), ET AL.
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RENDERED: AUGUST 28, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-002387-WC
WOLFORD & WETHINGTON
LUMBER
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-07-86299
JOHNNY DERRINGER;
HONORABLE LAWRENCE SMITH,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES.
VANMETER, JUDGE: Wolford & Wethington Lumber (Wolford) appeals from
an opinion rendered by the Administrative Law Judge (ALJ), and affirmed by the
Workers’ Compensation Board (the Board), awarding Johnny Derringer benefits
for a work-related injury. For the following reasons, we affirm.
In April 2007, Derringer experienced severe leg and back pain while
operating a standard-shift flatbed truck for his employer, Wolford. He sought
medical treatment and an MRI scan ultimately revealed a lumbar disc herniation.
Derringer underwent surgery and returned to work in September 2007. After five
weeks, he informed his boss that he was going to have to “quit driving that truck
because that clutch is too hard to mash down.” He described the clutch as being
very stiff and stated that he had to switch gears frequently since it was a ten-speed
truck.
Derringer, who was unemployed after leaving Wolford, sought
compensation for his injury. The ALJ found that his injury was work-related and
ordered Wolford to pay temporary total disability (TTD) benefits from the date of
Derringer’s injury until he returned to work in September 2007. The ALJ also
ordered Wolford to pay the medical bills incurred for treatment of Derringer’s
injury. Wolford appealed the ALJ’s decision to the Board, which affirmed.
Wolford now appeals the Board’s decision, which we affirm.
Since the ALJ found in favor of Derringer, who bore the burden of
proving that his injury was work-related, Derringer must “show that there was
some evidence of substance to support the finding, meaning evidence which would
permit a fact-finder to reasonably find as it did.” Special Fund v. Francis, 708
S.W.2d 641, 643 (Ky. 1986). Derringer has made the requisite showing.
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Three issues are before us on appeal. First, Wolford claims that the
Board erred in finding that evidence of substance supported the ALJ’s finding of a
work-related injury. We disagree. For purposes of a worker’s compensation
claim, an “injury” is “any work-related traumatic event or series of traumatic
events, including cumulative trauma, arising out of and in the course of
employment which is the proximate cause producing a harmful change in the
human organism evidenced by objective medical findings.” KRS1 342.0011(1).
The ALJ found that Derringer sustained an “injury” within the meaning of KRS
342.0011(1) based on Derringer’s deposition testimony, his testimony at the formal
hearing before the ALJ, and the medical reports of Drs. Hayes and Templin.
Dr. Hayes, who initially examined Derringer on the day of his injury,
ultimately opined that his injury was work-related. Dr. Hayes’ report reads:
Mr. Derringer was working at the time of his injury
and has not reported to me any other injury. On the
date he hurt himself, he reported that he was feeling
fine driving his truck and then he was in intense pain.
His employer had to come pick him up and when he
was brought to my office he could not stand or sit.
He had to lay down. For the above reason, it is my
opinion that his condition is work-related.
Dr. Templin, who also examined Derringer, opined that within
reasonable medical probability, Derringer’s injury was the cause of his complaints.
Dr. Templin’s explanation of how the work-related injury caused the harmful
change in the human organism was: “[l]umbar disc herniation at L3-L4 while
operating a standard shift truck on April 26, 2007.” Based on these medical
1
Kentucky Revised Statutes.
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opinions and the testimony of Derringer, the Board did not err by finding that the
ALJ’s determination of a work-related injury was supported by evidence of
substance.
Second, Wolford asserts that the Board erred by finding that evidence
of substance supported the ALJ’s award of TTD benefits. We disagree. KRS
342.0011(11)(a), which addresses a TTD award, provides: “[T]emporary total
disability (TTD) means the condition of an employee who has not reached
maximum medical improvement (MMI) from an injury and has not reached a level
of improvement that would permit a return to employment[.]”
Here, the ALJ found that Derringer reached MMI and was entitled to
TTD benefits for the period between his injury in April 2007 and his return to work
in September 2007. This award is supported by evidence of substance. Not only
did Dr. Templin opine that Derringer could not return to the position he held with
Wolford at the time of his accident, or engage in any activity requiring repetitive
use of his left foot and leg, but Dr. Kriss opined that Derringer would not reach
MMI until one year after his June 2007 surgery. As Derringer’s return to work in
September 2007 exceeded both doctors’ expectations, the Board did not err by
affirming the ALJ’s determination that Derringer was entitled to TTD benefits until
that time.
With regards to the third and final issue, Wolford contends that the
Board erred by affirming the ALJ’s determination that the 45-day billing
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requirement under KRS 342.020(1) did not bar compensability of the medical
benefits awarded in this case. We disagree with Wolford’s contention.
KRS 342.020(1) addresses employer payment of the costs of workrelated medical treatment. It provides, in part, as follows:
The employer, insurer, or payment obligor acting
on behalf of the employer, shall make all payments
for services rendered to an employee directly to
the provider of the services within thirty (30) days
of receipt of a statement for services . . . . The
provider of medical services shall submit the
statement for services within forty-five (45) days
of the day treatment is initiated and every forty-five
(45) days thereafter, if appropriate, as long as
medical services are rendered.
In the case of R.J. Corman R.R. Const. v. Haddix, 864 S.W.2d 915
(Ky. 1993), the Kentucky Supreme Court held that the 30-day requirement under
KRS 342.020(1) “applies to medical statements received by an employer after an
ALJ has determined that said bills are owed by the employer.” R.J. Corman at
918. (emphasis added). The court reasoned that “[u]ntil an award has been
rendered, the employer is under no obligation to pay any compensation, and all
issues, including medical benefits, are justicable.” Id.
Wolford argues that R.J. Corman does not apply here because the
court did not speak to the issue of the 45-day requirement; thus the case is not
directly on point. However, we hold that the court’s rationale in R.J. Corman
applies; until an award was rendered by the ALJ, Wolford was under no obligation
to pay any compensation, and all issues, including medical benefits were
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justiciable. Thus, the Board did not err in affirming the ALJ’s determination that
the 45-day requirement under KRS 342.020(1), same as the 30-day requirement,
did not bar compensability of the medical benefits awarded.
The opinion of the Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
John W. Spies
Louisville, Kentucky
BRIEF FOR APPELLEE JOHNNY
DERRINGER:
Tim Wilson
Lexington, Kentucky
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