6*Uyrftnr (110urf of TERRY HARRINGTON V. TFE GROUP ; HON . LAWRENCE F . SMITH, ADMINISTRATIVE LAW JUDGE AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED ".NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVI_L PR OCED URE PR OMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COUR T OF THIS STATE.
RENDERED : MAY 19, 2005
NOT TO BE PUBLISHED
6*Uyrftnr
(110urf of
2004-SC-0403-WC
TERRY HARRINGTON
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-2053-WC
WORKERS' COMPENSATION BOARD NO . 02-WC-82353
V.
TFE GROUP ; HON . LAWRENCE F .
SMITH, ADMINISTRATIVE LAW JUDGE
AND WORKERS' COMPENSATION
BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal is from an opinion of the Court of Appeals which upheld the Workers'
Compensation Board in affirming the decision of the Administrative Law Judge to
dismiss the claim for workers' compensation benefits by Harrington . The dismissal was
based on the failure of the claimant to prove causation sufficient to establish a workrelated injury.
Harrington was employed as a material handler at the warehouse of TFE Group .
The majority of his work involved moving items throughout the warehouse with a power
jack . A power jack is similar to a forklift ; however, the prongs are in the back . To
operate a power jack, a left-handed employee such as Harrington, must stand on the
right side of the power jack deck with his back to the forks and operate the controls with
his left hand and hold on with his right hand. The fork that is used moves stacks of
product on a skid from the receiving area to the storage area inside the warehouse .
Harrington testified by deposition and at the hearing that he suffered a workrelated injury on June 5, 2002 when he was stepping off his power jack to go to the
break room . He felt as though he was going to twist his ankle . He jerked to the left to
counter balance his awkward step, and as he did so, he felt pain in his lower back . He
went on break, but as he sat in the break room his discomfort increased . After returning
to work, he began to experience numbness in his lower back extending to his right leg .
He later notified his supervisor and an accident report was completed . Harrington was
taken to the St. Elizabeth Business Health Center immediately after he reported his
injury where he was treated by Dr. Agatep . When his condition failed to improve, the
physician scheduled an MRI which indicated the presence of a disk herniation at L3-4 .
Based on the MRI report, Dr. Agatep discontinued physical therapy and referred
Harrington to Dr. Duplechan, board certified in physical medicines, rehabilitation and
electrodiagnostic medicine, who first saw him on July 2, 2002.
In this appeal, Harrington contends that the order of the AU dismissing the claim
was based on conjecture and must be reversed . He also asserts that the opinion and
order is not supported by compelling evidence .
Initially, after the alleged injury, Harrington received temporary total disability
benefits and medical benefits from June 6, 2002 through July 10, 2002 . Following an
investigation by the company, TFE terminated the benefits asserting that the injury did
not arise out of or in the course of his employment. Harrington filed a motion for
interlocutory relief which was later expanded into a claim for benefits. Subsequently,
the claim was bifurcated on the issue of work-related causation .
The human resources manager of TFE testified by deposition that he
investigated the alleged incident and confirmed that Harrington had called in sick on
June 3 and 4, 2002 because of sunburn . Upon a return to work, Harrington was
questioned about the sick leave, and the human resources manager stated that he did
not see any signs of tan, sunburn, redness or peeling . It is unclear as to exactly when
this interview took place. The manager also testified that there were approximately 53
cameras operating within the plant at any given time and that these cameras take a
series of rapid pictures but do not record streaming or a continuous video . He testified
that he was unable to locate or identify any incident that he believed would have caused
the injury . The pictures were not clear enough to actually make out the faces of any
employee, and there was no specific picture of Harrington at the exact moment he
stepped from the power jack.
The immediate supervisor testified by deposition that Harrington reported the
incident to her and that she was directed to have Harrington go to the hospital . She
stated that when he returned he appeared to be in pain and was limping.
An investigator with CNA Insurance testified by deposition that he had reviewed
the videotapes taken by the plant camera and he did not see anything that indicated to
him that there was any injury.
He also testified that he investigated the weather in the
Covington area on the Saturday before the alleged injury and obtained information that
it was apparently overcast and hazy and had rained that morning and afternoon .
Harrington lives in Covington and the weather information is for the airport which is in
Boone County, a distance of approximately twelve miles . An actual weather report was
introduced into evidence and recorded .10 inches of rain at noon at the airport .
Dr. Graulich, board certified in neurology and psychiatry, conducted an
independent medical examination at the request of the employer on January 29, 2003.
On February 28, 2003, Dr. Graulich amended his opinion expressed in the earlier
examination . After viewing the tape a multitude of times and reviewing the work file, he
stated
The patient's injury and his activities directly afterward as he
told them to me on the first page of my IME could still be compatible
with this videotape. But having reviewed the entire file I would like to
make the following points.
It takes some stretch of the imagination to consider this a work
related injury under KRS 342.0011 . The patient does give a history
of injury . But the injury is trivial and certainly cannot be considered
the main proximate cause of the patient's HIVD, only an
exacerbating or immediately inciting factor . Disks do not herniate
due to such a trivial incident unless they are severely diseased
beforehand . Thus even if it should be determined that the condition
is work related the vast majority, at least 90-95%, should be
considered due to age-related degenerative arthritis in my opinion .
The patient's history that he missed two days of work
preceding the incident due to a severe sunburn is suspicious at best.
It would be more likely to conclude he missed work because he was
having back pain - a common occurrence in his age group with such
severe underlying degenerative arthritis.
The ALJ determined that the claimant lived ten to twelve miles northeast of the
airport and a short distance from the downtown area where the climatology records are
kept. The ALJ was persuaded that the evidence was not sufficient to support the claim
that Harrington had severe sunburn which required two days off. The ALJ concluded
that from the medical reports, deposition testimony and his observation of the demeanor
of the witness at the formal hearing, he was not convinced that the back injury was a
result of the injury described at the workplace on June 5, 2002 . Rather, the ALJ agreed
with Dr. Graulich that it would be more likely to conclude that the claimant missed work
4
because he was having back pain, a common occurrence in his age group with severe
underlying degenerative arthritis. Harrington was approximately 50 years of age at the
time of the injury.
The ALJ, in rendering his decision, indicated that there were glaring
inconsistencies in the statement presented by the claimant . The AU was concerned
that the claimant neither sought nor received any medical care for the sunburn.
The burden of proof and risk of nonpersuasion are on the claimant relative to
each and every essential element of the claim. Snawder v. Stice , 576 S.W.2d 276
(Ky.App . 1979). See also Burton v. Foster Wheeler Corp. , 72 S.W.3d 925 (Ky. 2002).
As a finder of fact, the AU has the sole authority to determine the quality, character and
substance of the evidence . Square D Co. v. Tipton , 862 S .W .2d 308 (Ky. 1993) ;
Paramount Foods, Inc. v. Burkhardt , 695 S.W.2d 418 (Ky. 1985) . In addition, the ALJ
has the sole authority to judge the weight and inferences to be taken from the evidence .
Miller v. East Ky . Beverage/PepsiCo, Inc . , 951 S .W .2d 329 (Ky. 1997) . As the fact
finder, the AU may reject any testimony and believe or disbelieve various parts of the
evidence . Magic Coal Co . v. Fox, 19 S.W.3d 88 (Ky. 2000).
In order to reverse a decision of the ALJ, it must be demonstrated that there was
no substantial evidence of probative value to support his decision . Special Fund v.
Francis , 708 S .W.2d 641 (Ky. 1986) . There is no doubt that the evidence regarding the
actual occurrence of a work-related injury is conflicting . The Board observed that there
was certainly sufficient evidence to support both an award of benefits as well as the
dismissal issued by the ALJ . The Board also stated that it is only by the barest of
margins can it be said that the conclusions of the ALJ are totally without merit . The
Board also indulged in dicta that another finder of fact might have interpreted the
evidence differently, although that kind of speculation is of no benefit to the claimant .
In this instance, Harrington was unsuccessful in his burden of proof before the
ALJ . The question on appeal is whether the evidence was so overwhelming, upon
consideration of the entire record, as to compel a finding in his favor. See Wolf Creek
Collieries v. Crum , 673 S .W.2d 735 (Ky.App. 1984) . Compelling evidence is evidence
that is so overwhelming that no reasonable person could arrive at the same conclusion
reached by the ALJ . REO Mechanical v. Barnes , 691 S .W.2d 224 (Ky.App. 1985) . As
long as there is any evidence of substance which supports the decision of the ALJ, the
Board or Court cannot reverse on appeal . Special Fund v. Francis , supra .
The Board may not substitute its judgment on appeal for that of the AU in
matters involving the weight to be given to the evidence in questions of fact. KRS
342.285(2).
A careful review of the record in this case indicates that the ALJ considered all
the lay and medical testimony in the record in very great detail . The Board, in a
unanimous opinion, determined that it was within the province of the ALJ to rely on the
evidence presented to him . The Board correctly determined that it did not have the
authority to overrule the AU or substitute its judgment for his in matters involving the
weight to be given to the evidence in questions of fact . Both the Board and the Court of
Appeals were sympathetic to the claimant, but as a matter of law, could not reach his
complaints. The Court of Appeals correctly stated that the evidence here was not so
overwhelming as to require it to supersede the findings of the Board or the ALJ . See
Western Baptist Hosp. v. Kelly, 827 S .W.2d 685 (Ky. 1992)
The opinion of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Christopher J . Mehling
Tamara T. Pitts
TALIAFERRO, MEHLING, SHIROONI,
CARRAN & KEYS
1005 Madison Ave ., P.O. Box 468
Covington, KY 41012
COUNSEL FOR APPELLEE:
Vonnell C . Tingle
FULTON & DEVELIN
2000 Warrington Way, Ste. 165
Louisville, KY 40202
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