Opinion
NO. 2012-CA-000681-WC
02-15-2013
VIRGINIA L. DUEBEL APPELLANT v. KROGER; HON. JONATHAN R. WEATHERBY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Richard A. Brueggemann Fort Mitchell, Kentucky BRIEF FOR APPELLEE, KROGER: Joel W. Aubrey Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-09-91616
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND STUMBO, JUDGES. STUMBO, JUDGE: Virginia L. Duebel petitions for review of the March 9, 2012, opinion of the Workers' Compensation Board ("Board"). That opinion affirmed the September 9, 2011, decision of Administrative Law Judge ("ALJ") Hon. James L. Kerr, awarding benefits to Duebel for a knee injury and dismissing her claim for benefits for a head injury. We find no error with the Board's opinion and therefore affirm.
On February 23, 2009, Duebel was employed by Kroger when she suffered knee pain while stepping forward. Duebel later sought medical treatment for her knee and missed approximately two months of work due to her injury. On June 6, 2009, again while employed by Kroger, Duebel fell while cleaning a seafood case. As a result of the fall, Duebel cut her head and received 70 sutures.
On February 22, 2011, Duebel filed a Form 101 alleging an injury to her left knee. The form did not allege injury to her head and did not cite to the June 6, 2009, incident. The only record attached to the form, which referenced the head injury in any manner, was a record from Florence Urgent Care indicating the removal of her sutures. No other evidence, regarding her head injury, was introduced. Additionally, Duebel did not move to amend her claim during her proof time. Six days prior to the Benefit Review Conference ("BRC"), Duebel attempted to submit treatment notes from St. Luke Hospital regarding her head injury. Kroger objected to the evidence as both untimely and irrelevant to the pending claim for Duebel's knee injury. At the July 14, 2011 BRC, Duebel orally moved to amend her claim to include an allegation of injury to her head. Duebel's motion was denied and she moved for reconsideration.
On September 9, 2011, the ALJ issued his opinion and order. Duebel was awarded temporary total disability benefits and medical benefits for her knee injury. The ALJ denied Duebel's motion for reconsideration and found that there was no medical evidence to suggest that the June 6, 2009 incident constituted a work-related injury. Consequently, Duebel's claim was not amended to include her head injury.
Thereafter, Duebel sought review of the ALJ's opinion and order by the Board. In an opinion entered on March 9, 2012, the Board found that the ALJ was within his discretion to deny Duebel's motion to amend and that there was insufficient evidence to support Duebel's claim for a head injury. Accordingly, the ALJ's opinion and order was affirmed. This appeal followed.
An ALJ's decision is "conclusive and binding as to all questions of fact" and the Board "shall not substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact." KRS 342.285. A review by the Court of Appeals is limited to that of the Board and also to errors of law arising before the Board. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999); KRS 342.290. Hence, our review "is to correct the Board only where the . . . Court perceives the Board 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 Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
The solitary issue before this Court is whether the ALJ erred by failing to allow Duebel to amend her original claim to include her head injury. Duebel first argues that her head injury was tried by implied consent. We disagree. CR 15.02 provides, in relevant part: "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." "The decision whether an issue has been tried by express or implied consent is within the trial courts discretion and will not be reversed except on a showing of clear abuse." Hodge v. Ford Motor Co., 124 S.W.3d 460, 463 (Ky. App. 2003) (citation omitted).
We have previously held that an ALJ's finding of implied consent was appropriate when the claimant introduced evidence of their omitted issue and that evidence was not objected to by the employer. Id. However, the facts presently before are distinguishable from those in Hodge. The only evidence of Duebel's head injury was the single document, from Florence Urgent Care, indicating removal of her sutures. Neither that document nor the Form 101 referenced the June 9, 2009 incident. Duebel failed to introduce any evidence of her head injury during her proof period and instead waited until just days prior to the BRC to introduce medical records pertaining to treatment for her head injury. At that time, Kroger objected to the evidence, making it clear that they did not consent to adjudication of the issue, impliedly or otherwise. Although there is some portion of Duebel's testimony pertaining to the June 6, 2009 incident, the questioning which resulted in that testimony appears to be an effort to ascertain a history of all her past injuries, work and non-work related, and their resulting treatments. Additionally, Duebel's testimony expressly indicated that she was only pursuing a claim for the injury to her knee.
Our Supreme Court has previously considered the presence of prejudice when determining whether a party should be permitted to amend their pleadings to include omitted issues and has held that the "question is whether the proof supports a particular theory." Nucor Corp. v. General Elec. Co., 812 S.W.2d 136, 146 (Ky. 1991). Given the lack of evidence submitted in support of Duebel's head injury, we see no abuse of discretion by the ALJ's decision to disallow pursuit of the omitted issue.
Duebel further alleges that the ALJ improperly concluded that her head injury was not work related. We disagree. As previously outlined, there was little to no evidence submitted regarding Duebel's head injury. The medical form indicating removal of Duebel's sutures and the nominal testimony regarding the injury were insufficient to make a finding of work-related injury "evidenced by objective medical findings." KRS 342.0011. Moreover, because the issue of Duebel's head injury was not properly tried before the ALJ, his findings regarding the source of the injury are inconsequential.
In conclusion, we find no error with the Board's order affirming the opinion and order of the ALJ. Accordingly, the March 9, 2012 opinion of the Board is affirmed.
DIXON, JUDGE, CONCURS.
CAPERTON, JUDGE, DISSENTS WITHOUT OPINION. BRIEF FOR APPELLANT:
Richard A. Brueggemann
Fort Mitchell, Kentucky
BRIEF FOR APPELLEE, KROGER:
Joel W. Aubrey
Louisville, Kentucky