STEPHEN E. BURTON V. FOSTER WHEELER CORPORATION; DONNA TERRY, ADMINISTRATIVE LAW JUDGE; BONNIE KITTINGER, FORMER PRESIDING ARBITRATOR; AND WORKERS' COMPENSATION BOARD
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RENDERED: APRIL 25,2002
TO BE P@$ISHED
2001 -SC-0348-WC
STEPHEN E. BURTON
APPEAL FROM COURT OF APPEALS
2000-CA-2972-WC
WORKERS’ COMPENSATION BOARD NO. 98-72954
V.
FOSTER WHEELER CORPORATION;
DONNA TERRY, ADMINISTRATIVE LAW JUDGE;
BONNIE KITTINGER, FORMER PRESIDING ARBITRATOR;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART
Appellant Stephen E. Burton sustained a work-related injury on June 26, 1998,
while operating a D-3 bulldozer at a landfill owned by his employer, Foster Wheeler
Corporation. The bulldozer moved on caterpillar treads, as opposed to wheels, and
was equipped with a steel safety cage, or “roll cage,” that was attached to four 4” X 4”
steel posts attached at the top by steel roll bars. The machine had also been equipped
with a seat belt; however, the right strap of the belt was broken so that the belt could
not be fastened.
The accident occurred when the front end of the bulldozer slipped into a ditch at
the bottom of an incline, throwing Appellant forward so that his head struck the front roll
bar of the safety cage, rendering him dazed and unconscious. His workers’
compensation claim alleged that he sustained totally disabling traumatic brain and
musculoskeletal injuries and that he was entitled to a 15% enhancement of his award
under KRS 342.165(l). The Administrative Law Judge (ALJ) determined that, although
Appellant sustained a musculoskeletal injury, he did not sustain a brain injury of
appreciable proportions and that his claim under KRS 342.165 should be denied
because he had failed to point to any specific statute or regulation that required a D-3
bulldozer to be equipped with an operable seat belt. The decision was affirmed by the
Workers’ Compensation Board (Board) and the Court of Appeals.
After an Arbitrator awarded the claimant an award for total disability, the
employer sought de novo review before an ALJ. The records of Southwest Hospital
that were introduced into evidence indicate that Appellant sought medical treatment at
the emergency room on June 26, 1998, complaining of blurred vision, shakiness,
headaches, dizziness, and vomiting. A brain CT scan that was taken at the time
revealed no evidence of hemorrhage or hematoma, and x-rays revealed no recent
fractures. He was given anti-inflammatory and pain medication, was advised to rest
quietly for about a day with someone checking him periodically for particular symptoms,
and was advised that he could return to light duty on June 29, 1998. The discharge
diagnosis was muscle strain with spasm and a contusion on the forehead. Appellant
was later treated and evaluated by a number of physicians who disagreed about both
his condition and his prognosis.
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About a month after the injury, Dr. Garcia, a neurologist, diagnosed various
musculoskeletal strains as well as post-traumatic syndrome as manifested by persistent
dizziness, light-headedness, headaches, blurred vision, and loss of balance. He
admitted that there were no objective medical findings to support the existence of a
closed head injury and that there were some discrepancies in the reported symptoms,
but was of the opinion that Appellant had sustained a concussion and that he was
unable to work.
On September 2, 1998, the claimant saw Dr. Shields, a neurosurgeon, who
diagnosed a whiplash injury and interpreted an MRI as revealing an osteophyte at C3-4
and a congenital fusion at C6-7. Although he recommended a myelogram, none was
introduced into evidence.
Dr. Bilkey, a specialist in physical and rehabilitation medicine, began treating
Appellant on September 24, 1998, for headaches and neck, shoulder, and back pain.
He referred Appellant to Dr. Dubicki for neuropsychological testing which revealed a
global decline in cognitive function that was not consistent with a traumatic brain injury.
He noted that Appellant’s apparent history of alcohol abuse would account for the same
pattern of cognitive loss. Both Drs. Dubicki and Bilkey found evidence of considerable
anxiety, and Dr. Bilkey attributed Appellant’s complaints of chest pain at a December,
1998, visit to an anxiety attack. He concluded that Appellant did not sustain a true
traumatic brain injury but did have anxiety and a global decline in cognitive function that
was unrelated to the accident. In addition to temporary physical restrictions, he
assigned a 5% impairment for musculoskeletal complaints but could not say that the
impairment was work-related.
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In May 1999, Dr. Gleis, an orthopedic surgeon, examined Appellant and
reviewed the medical records. In addition to imposing various work restrictions, he
assigned a 5% musculoskeletal impairment under the DRE model. He also assigned a
5% brain impairment but did not specify whether it was attributable to the traumatic
incident. It was his opinion that Appellant’s right thumb problem was not work-related.
Finally, Appellant was examined on January 25-26, 2000, by Dr. Granacher, a
psychiatrist. After reviewing the medical records and his exam notes, Dr. Granacher
concluded that, although Appellant may have suffered a temporary concussion, he did
not sustain a traumatic brain injury and that his level of intellectual functioning was not
affected by the accident. He explained that the pattern of global cognitive deficits and
the fact that Appellant’s complaints of cognitive problems developed over time both
were inconsistent with a significant brain injury.
Appellant testified that he had been employed as a heavy equipment operator
since 1966 and that he knew that all heavy equipment, including D-3 bulldozers, are
required to be equipped with a seat belt. Appellant testified that the job foreman held a
safety meeting every Monday morning and always advised all of the bulldozer operators
that they were required to wear hard hats, safety glasses, and seat belts while
operating their equipment. Appellant claimed that he reported the broken seat belt to
the project manager on several occasions and made several requests of the company
mechanics to repair the seat belt, all to no avail. The seat belt was still inoperable at
the time of his accident and injury.
Characterizing the matter as a “close case,” the ALJ noted that the Appellant
appeared credible with respect to his testimony that his dizziness, headaches, and
other symptoms began only after the accident. He also appeared to have a “good to
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excellent” memory and was able to express himself adequately. The ALJ concluded,
however, that he had failed to meet his burden of proving a traumatic brain injury,
noting that, although he appeared to have sustained a mild concussion with some
temporary symptoms, there was grave doubt that the global cognitive deficits or
complaints of dizziness and blurred vision were caused by the work-related accident.
Furthermore, although anxiety seemed to play a role in his problems, there was no
convincing evidence that his anxiety attacks were caused by the accident. On the other
hand, the ALJ was persuaded by testimony from Appellant’s family physician,
Dr. Aaron, that he had sustained musculoligamentous injuries that caused a 15%
impairment. The ALJ was also persuaded that Appellant could not return to his work as
a bulldozer operator and determined, therefore, that he was entitled to income benefits
that were enhanced by 50%. Finally, the ALJ noted that Appellant had failed to identify
a specific statute or regulation that required operative seat belts on D-3 bulldozers and
concluded that he had, thus, failed to prove an alleged safety violation warranting
application of KRS 342.165(l).
In a petition for reconsideration, Appellant reargued the merits of the brain injury
claim. He also pointed out that he qualified as an expert in the operation of heavy
equipment and that his testimony that seat belts were required on all heavy equipment
vehicles was uncontradicted. The employer responded that “KRS 342.165 requires
evidence of a failure to comply with a ‘specific statute or lawful administrative
regulation”’ and that “Plaintiff failed to produce any evidence that there was a soecific
statute or safetv reoulation requiring seat belts in a bulldozer [such as] the one operated
by Plaintiff.” (Emphasis added.) Appellant filed a reply brief, specifically citing 803 KAR
2:015 § 4(2)(k). However, because KRS 342.281 does not provide for a reply to a
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response to a petition for reconsideration, the ALJ declined to consider the pleading or
its citation to the safety regulation. The ALJ also opined that the citation to the
regulation was “new evidence” which could’ not be introduced at the reconsideration
stage of a workers’ compensation proceeding. On appeal, the Board held that it is “not
fair” to the employer, “[n]or is it fair to the ALJ,” to wait until the reconsideration stage to
cite for the first time the safety regulation claimed to have been violated. The Court of
Appeals agreed, and the upshot is that Appellant’s claim of a violation of a safety
regulation has never been addressed on the merits at any stage of this litigation.
It is elementary that a claimant bears the burden of proof and risk of
nonpersuasion before the fact-finder with regard to every element of the claim. Roark
v. Alva Coal Corooration, Ky., 371 S.W.2d 856, 857 (1963); Wolf Creek Collieries v.
Crum, Ky.App., 673 S.W.2d 735, 736 (1984); Snawder v. Stice, Ky.App., 576 S.W.2d
276, 279 (1979). Although KRS 342.285 permits the appeal of the ALJ’s decision to the
Board, it provides that the ALJ’s decision is “conclusive and binding as to all questions
of fact” and that the Board “shall not substitute its judgment for that of the [ALJ] as to
the weight of evidence on questions of fact.” KRS 342.290 limits the scope of review by
the Court of Appeals to that of the Board and also to errors of law arising before the
Board.
This Court has construed KRS 342.285 to mean that the fact-finder, rather than
the reviewing court, has the sole discretion to determine the quality, character, and
substance of evidence, Paramount Foods. Inc. v. Burkhardt, Ky., 695 S.W.2d 418, 419
(1985); that an ALJ, as fact-finder, may reject any testimony and believe or disbelieve
various parts of the evidence, regardless of whether it comes from the same witness or
the same adversary party’s total proof, Caudill v. Maloney’s Discount Stores, Ky., 560
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S.W.2d 15, 16 (1977); and that where the party with the burden of proof is successful
before the ALJ, the issue on appeal is whether substantial evidence supported the
ALJ’s conclusion. Special Fund v. Francis, Ky., 708 S.W.2d
641, 643 (1986).
Substantial evidence has been defined as some evidence of substance and relevant
consequence, having the fitness to induce conviction in the minds of reasonable
people. Smyzer v. B. F. Goodrich Chemical Co., Ky., 474 S.W.2d 367, 369 (1971).
Although a party may note evidence that would have supported a conclusion that is
contrary to the ALJ’s decision, such evidence is not an adequate basis for reversal on
appeal. McCloud v. Beth-Elkhorn Corn, Ky., 514 S.W.2d
46, 47 (1974).
Although there was evidence that Appellant was permanently disabled by a
work-related traumatic brain injury, there was also evidence to the contrary. Having
reviewed the conflicting evidence and the arguments of the parties, we are not
persuaded that the ALJ overlooked or misunderstood any relevant evidence with
respect to that issue or that the ALJ’s view of the evidence was erroneous as a matter
of law.
However, the ALJ made no findings of fact with respect to whether the accident
was caused in any degree by the intentional failure of the employer to equip Appellant’s
bulldozer with an operable seat belt. She only found that Appellant had failed to cite
the particular safety regulation alleged to have been violated. Appellant did, in fact,
testify that there were safety regulations that required bulldozers to be equipped with
seat belts and that the bulldozer assigned to him was not equipped with an operable
seat belt as required by those regulations. KRS 342.165(l) authorizes a 15% increase
in compensation:
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If an accident is caused in any degree by the intentional failure of the
employer to comply with any specific statute or lawful administrative
regulation made thereunder, communicated to the employer and relative
to installation or maintenance of safety appliances or methods. . . .
Appellants testimony that he was injured when he was thrown out of his seat
and struck his head against the steel roll bar would support a finding that the accident
was caused in some degree by the absence of the seat belt. The ALJ did not dismiss
this aspect of Appellant’s claim because of a failure to prove the necessary facts to
support it but because he failed to cite the specific safety regulation applicable to those
facts. That is not a failure to prove facts but a failure to cite legal authority applicable to
the facts proven. Unfortunately, this is not a rare occurrence in any type of litigation.
Ironically, the regulation that Appellant finally did cite in his reply to the employer’s
response to his petition for reconsideration, as well as in all of his appellate briefs, is not
the regulation that applies to the facts proven in this case. 803 KAR 2:015 § 4(2)(a),
provides that the requirements of that section (including the cited regulation, § (4)(2)(k))
“do not apply to equipment for which rules are prescribed in subsection (3) of this
section.” 803 KAR 2:015 § 4(3)(a) provides that the provisions of that subsection apply
to, inter alia, bulldozers (bulldozers with caterpillar treads, not bulldozers with wheels,
which are covered under 803 KAR 2:015 § 5(l)(a)). 803 KAR 2:015 § 4(3)(b) requires
that “[e]ach employer shall insure safe seating with seat belts on all equipment covered
by this section . . . .‘I The only exceptions pertain to equipment designed only for standup operation, id., § 4(3)(c) and equipment that does not have a rollover protection
structure or adequate canopy protection. Id., § 4(3)(d). However, Appellant’s failure to
provide the correct legal citation to support his claim, where accurate research reveals
the existence of such legal support, does not mean that his claim must fail, for ALJ’s,
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workers’ compensation board members, judges and justices are presumed to know the
law and are charged with its proper application.
There are two schools of thought as to what policy an appellate
court should follow in such instances -- which are, we might add, not at all
rare. One view is that when a party fails to argue a theory on which he is
entitled to win he should simply lose, the courts having enough to do
without practicing lawyers’ cases. On the other hand, much bad law will
go into the books (more, that is, than is there already) if courts confine
their analyses of cases to the theories presented in the briefs. It is
probable that in well over 50% of the cases coming before it an appellate
court will size up the dispositive logic of a controversy differently from the
way in which the opposing parties have conceived it. For the sake of the
litigants, who have some right, it seems to us, to expect the courts to
assume a full share of responsibility for seeing that the controversy is
correctly determined, we are of the opinion that insofar as the pleadings,
the evidence, the rules of procedure and the principles of law permit, an
appellate court should resolve cases on their merits, aided by but not
necessarily restricted to the arguments of counsel.
First Nat’1 Bank of Louisville v. Proaressive Cas. Ins. Co., Ky., 517 S.W.2d 226, 230
(1974). In other words, applicable legal authority is not evidence and can be resorted to
at any stage of the proceedings whether cited by the litigants or simply applied, sua
N o r i sbyl e g a l r e s e a r c h a m a t t e r o f j u d i c i a l n o t i c e , f o r t h e
sponte,
the adjudicator(s).
issue is one of law, not evidence. Commentary to KRE 201, Evidence Rules Study
Committee, Final Draft (1989); FRE 201 Advisory Committee Note (1972).
Accordingly, the decision of the Court of Appeals is affirmed with respect to
Appellant’s claim for total disability benefits and reversed as to Appellant’s claim for a
15% penalty, and this case is remanded to the ALJ for a determination of whether the
facts of this case prove an intentional failure on the part of the employer to comply with
803 KAR 2:015 § 4(3)(b) so as to authorize a 15% enhancement of the award pursuant
to KRS 342.165(l).
All concur.
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COUNSEL FOR APPELLANT:
Ray B. White
319 East Tenth Avenue
P. 0. Box 1154
Bowling Green, KY 42102-I 154
COUNSEL FOR FOSTER WHEELER CORPORATION:
John G. Grohmann
C. Patrick Fulton
Fulton & Devlin
2000 Warrington Way, Suite 165
Louisville, KY 40222
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