Opinion
NO. 2012-CA-001876-WC
06-14-2013
JOSEPH T. LAMBEAU APPELLANT v. PASCHALL TRUCK LINES, INC.; HON. R. SCOTT BORDERS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James D. Howes Louisville, Kentucky BRIEF FOR APPELLEE, PASCHALL TRUCK LINES, INC.: Sharlott K. Higdon Paducah, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-95699
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; LAMBERT AND STUMBO, JUDGES. LAMBERT, JUDGE: Joseph Lambeau has petitioned this Court for review from the September 25, 2012, opinion of the Workers' Compensation Board ("Board"), which affirmed the April 23, 2012, opinion and order of administrative law judge ("ALJ"), R. Scott Borders. That opinion and order dismissed Lambeau's claim for workers' compensation benefits after finding that he had not suffered an injury. Finding no error, we affirm.
In 2005, while employed as a truck driver for McLeod Express, Lambeau suffered a right shoulder injury when he slipped and fell on his outstretched right arm. Following his injury, Lambeau received medical treatment from Dr. Allen Young, including x-rays, physical therapy, and an MRI. Dr. Young diagnosed Lambeau with right shoulder acromioclavicular joint/ligament sprain. At the request of Dr. Young, Lambeau also received treatment from Dr. Stanley Tao, who performed an MRI and suggested continued physical therapy. Dr. Tao assessed Lambeau as having right AC separation and resolving left elbow contusion.
In 2006, Lambeau sought the medical treatment of Dr. Steven Sebert. Lambeau reported continued pain in his right shoulder, including the inability to drive a manual transmission truck. Dr. Sebert noted a history of right acromioclavicular separation and a decreased right shoulder range of motion. He diagnosed Lambeau with traumatic arthritis of the right shoulder and left elbow as a result of the 2005 injury. Dr. Sebert also advised Lambeau that the pain in his shoulder and elbow would worsen due to an acceleration of the normal aging process. Also in 2006, while seeking treatment from Dr. Richard Mailloux for an unrelated issue, Lambeau complained of continued pain in his right shoulder.
Lambeau returned to Dr. Tao in 2007 and reported worsening pain in his right shoulder with associated symptoms of back and neck pain, and reported that he was still unable to drive a manual transmission truck. Dr. Tao then assessed Lambeau with bicipital tenosynovitis, joint pain, upper arm and carpal tunnel syndrome, and ordered physical therapy. In 2008, as a result of his right shoulder injury, Lambeau received workers' compensation benefits under the Illinois Worker's Compensation Act. Lambeau received a lump sum payment and waived all right to future benefits.
Lambeau testified that on February 3, 2011, while performing his job duties with Paschal Truck Lines ("PTI"), he slipped and fell with his right arm extended. Lambeau also testified that on March 6, 2011, he broke his right hand after experiencing intense pain in his right shoulder that caused him to jerk his arm. Lambeau sought medical treatment from Dr. Tammy Banister and Dr. Tao.
Thereafter, Lambeau sought workers' compensation benefits for his 2011 injury. In support of his claim, Lambeau submitted the medical records of treating physician Dr. Anthony McEldowney, who diagnosed Lambeau with: 1) work-related fall with right shoulder sprain/strain/internal derangement; and 2) indirect impact injury dominant right hand with non-displaced closed right fifth metacarpal fracture. Dr. McEldowney further determined that Lambeau's complaints were the direct result of the alleged February 3, 2011, work-related injury. In contrast, PTI introduced the report of Dr. Frank O. Bonnarens, who, in addition to reviewing his past medical records, evaluated Lambeau on January 6, 2012. Dr. Bonnarens found no objective medical findings to substantiate Lambeau's subjective complaints of pain and opined that Lambeau's symptoms had been exaggerated. Dr. Bonnarens opined that Lambeau had not suffered an injury related to the unwitnessed 2011 incident, but instead opined that Lambeau had a long-standing right shoulder problem related to his 2005 injury.
Through an opinion and order entered April 23, 2012, the ALJ dismissed Lambeau's workers' compensation claim. In support of this dismissal, the ALJ found that Lambeau had not suffered an injury as a result of the February 3, 2011, incident. Instead, the ALJ found that Lambeau was suffering from a long-standing condition causally related to the 2005 injury. In addition, the ALJ found that Lambeau's testimony was not credible and that he was exaggerating his symptoms. Instead, the ALJ found the testimony of Dr. Bonnarens to be persuasive in reaching his conclusion.
Lambeau filed a motion for reconsideration, which was subsequently denied in an order dated May 18, 2012. Therein, the ALJ reiterated that Lambeau had not met his burden of proving that he suffered an injury as a result of the alleged February 3, 2011, incident. The ALJ clarified that his finding that Lambeau was not credible was based upon observations of Lambeau's demeanor and an overall finding that Lambeau's story "did not make sense." In addition, the ALJ further clarified his inference that a 5% impairment rating given by Dr. Bonnarens was for Lambeau's long-standing problem as a result of his 2005 injury, and not for any injury which occurred in 2011.
Lambeau then appealed the ALJ's April 23, 2012, opinion and order to the Board. In an opinion entered on September 25, 2012, the Board affirmed the opinion and order of the ALJ and found that his findings were sufficient. This appeal followed.
As the fact finder, the ALJ has the sole authority to determine the weight, credibility, substance and inferences to be drawn from the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). The ALJ also has the sole authority to judge the weight to be afforded to the testimony of a particular witness. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). When conflicting evidence is presented, the ALJ may choose whom or what to believe. Pruitt v. Bugg Bros., 547 S.W.2d 123, 125 (Ky. 1977). Furthermore, the ALJ 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. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
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." Kentucky Revised Statutes (KRS) 342.285. This Court's review 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).
Lambeau's sole argument on appeal is that the Board erred when it affirmed the ALJ's finding that he had suffered no injury. Lambeau first challenges a statement by the ALJ that Lambeau had been compensated for his right shoulder injury by the Illinois Workers' Compensation. We disagree, however, that this statement is relevant to the ALJ's dismissal of the claim. Although the ALJ mentions the Illinois claim, he does so merely as a recitation of medical history, and not as support for his conclusion that Lambeau failed to show an injury. Accordingly, Lambeau's argument relating to the ALJ's mention of the Illinois claim is a red herring and without merit.
Lambeau's second and third arguments relate to the ALJ's factual findings; namely: 1) that Lambeau was not credible and; 2) that Dr. Bonnarens' testimony regarding an ongoing medical issue was credible. In essence, Lambeau is attempting to reargue the evidence that has already been presented to the ALJ. As we have already discussed, it is not the role of this Court to weigh evidence or dissect issues of fact. Such is the role of the ALJ. As the Board so aptly stated in its order affirming:
[w]hile authority generally establishes an ALJ must effectively set forth adequate findings of fact from the evidence in order to apprise the parties of the basis for his decision, he is not required to recount the record with line-by-line specificity nor engage in a detailedWe agree. "If the fact-finder finds against the person with the burden of proof, his burden on appeal is [to] show that the evidence was such that the finding against him was unreasonable." Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). "[A] finding which can reasonably be made is, perforce, not clearly erroneous." Id. Given the evidence in the record, Lambeau has failed to show that the ALJ's findings were unreasonable, or clearly erroneous. Moreover, a party's demonstration that the evidence could have supported a different outcome than that reached by the ALJ is an inadequate basis to reverse. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Accordingly, we find no error with the Board's decision to affirm the ALJ's dismissal of Lambeau's claim.
explanation of the minutia of his reasoning in reaching a particular result.
For the foregoing reasons, the September 25, 2012, opinion of the Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: James D. Howes
Louisville, Kentucky
BRIEF FOR APPELLEE,
PASCHALL TRUCK LINES, INC.:
Sharlott K. Higdon
Paducah, Kentucky