Opinion
NO. 2013-CA-000280-WC
06-21-2013
MARIA PRESTON APPELLANT v. MARCO INDUSTRIAL TIRE COMPANY, and HON. GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE, and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Thomas W. Moak Prestonsburg, Kentucky BRIEF FOR APPELLEE: Katherine M. Banks Prestonsburg, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-90258
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT, AND STUMBO, JUDGES. LAMBERT, JUDGE: Maria Preston appeals from a decision of the Workers' Compensation Board affirming the denial of benefits for a lumbar injury. She argues that the denial of benefits was not supported by substantial evidence and failed to comply with applicable law regarding preexisting conditions. We affirm.
Preston is employed as an office manager for Marco Industrial Tire Co. On May 10, 2010, Preston slipped and fell on a wet staircase as she was picking up the mail. She returned to work without additional treatment. On November 1, 2010, Preston again slipped and fell on a staircase, injuring her left knee. She received treatment at a hospital emergency room and missed a few days of work before returning to light duty. She eventually returned to regular duty. On April 22, 2011, Preston tripped and fell over a forklift, which she alleged had exacerbated her previous injuries.
Following the April 22, 2011, incident, Preston received treatment from Dr. Duane Densler, who prescribed a regimen of physical therapy and the use of a TENS unit. In August 2011, Dr. Kevin Pugh performed surgery on Preston's left knee after steroid injections failed to provide adequate relief. In March 2012, Preston received treatment from Dr. Ira Potter for back pain. Dr. Potter concluded that the lumbar injury was work-related. Dr. David Muffly concluded that Preston had only a temporary lumbar strain, which had fully resolved.
Following a hearing, the Administrative Law Judge (ALJ) awarded Preston permanent partial disability benefits for the injury to her left knee, but found no permanent lumbar injury. The Board affirmed in part, and reversed in part. This appeal followed.
Preston argues that the finding of no permanent lumbar injury was not supported by substantial evidence and misapplied the law regarding preexisting conditions. We disagree.
If the party with the burden of proof is unsuccessful before the ALJ, the question on appeal is whether the evidence was so overwhelming as to have compelled a finding in his favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). The Board is charged with deciding whether the ALJ's finding "is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The 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. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Mere evidence contrary to the ALJ's decision is not adequate to require reversal on appeal. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999).
The ALJ specifically rejected the report provided by Dr. Potter because Dr. Potter had not been apprised of treatment Preston received for lower back pain, which occurred following a motor vehicle accident in 2005. Instead, the ALJ found the report of Dr. Muffly to be the most accurate and credible. These findings are supported by the record and within the authority of the ALJ. Further, the Supreme Court of Kentucky has held that the analysis of whether a work-related trauma causes a dormant preexisting condition to become a compensable impairment is inapplicable where there is finding that the work-related trauma caused no permanent damage. Sweeney v. King's Daughters Medical Center, 260 S.W.3d 829, 833 (Ky. 2008). Therefore, because the ALJ did not find a permanent lumbar injury, there was no requirement to conduct a preexisting condition analysis.
Accordingly, the decision of the Workers' Compensation Board is affirmed.
CAPERTON, JUDGE, CONCURS.
STUMBO, JUDGE, DISSENTS. BRIEF FOR APPELLANT: Thomas W. Moak
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Katherine M. Banks
Prestonsburg, Kentucky