Opinion
NO. 2012-CA-000556-WC
09-28-2012
BRANDON REYNOLDS. APPELLANT v. LAYNE CHRISTENSEN; HON. RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: James. D. Howes Louisville, Kentucky BRIEF FOR APPELLEE LAYNE CHRISTENSEN: Steven D. Goodrum Kristin M. Downs Lexington, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-10-97734
OPINION
AFFIRMING
BEFORE: CAPERTON, COMBS, AND NICKELL, JUDGES. COMBS, JUDGE: Brandon Reynolds petitions for the review of an opinion of the Workers' Compensation Board that affirmed the Administrative Law Judge's opinion and order dismissing his claim for permanent benefits. After our review, we affirm.
Reynolds was born in 1985 and began working for Layne Christensen in 2005 as a core drill helper/operator. As a child, Reynolds was diagnosed with a rare condition of the hip known as Legg-Calve-Perthes disease. As an adolescent, he underwent surgery to stabilize the ball of his left hip bone.
In his Form 101, Reynolds stated that he slipped on some plastic sheeting and fell at work on January 15, 2010. He alleged that the fall caused him to injure his left hip. He underwent total hip replacement surgery on June 27, 2010.
The Administrative Law Judge (ALJ) gave a thorough and detailed summary of the evidence presented, including a summary of the deposition testimony of several of Reynolds's co-workers. We shall summarize the ALJ's review of the evidence.
Ronnie James, a district manager for the employer, indicated that on January 15, 2010, he had "observed Mr. Reynolds limping and heard him complain that his hip was getting ready to go out." Later, James learned that Reynolds had been taken outside the shop and that he was in severe pain. When he asked Reynolds if he had fallen or had been injured in anyway, "he said that he had not, that his hip had went out."
Ronald Smith, a fellow co-worker, indicated that he had been working near Reynolds when he heard him call for help. Smith, assisted by Phillip Stevens, picked Reynolds up from the floor and drove him to the hospital. Smith testified that Reynolds had been "limping around that day like a man in pain" and that Reynolds had reported to him that "his hip had given out."
Phillip Stevens testified that on January 15, 2010, he "heard Reynolds holler at him and when he turned around he was down on one knee." Stevens indicated that he heard Ronnie James ask Reynolds twice if he had fallen and that Reynolds advised him twice that he had not fallen. Stevens had observed Reynolds limping that morning and had overheard him tell another co-worker that his hip was hurting.
Kimberly Kaiser testified that he observed Reynolds before the incident occurred and that Reynolds appeared to have trouble walking. Kaiser indicated that Reynolds was leaning against some machinery when he told Kaiser that his hip was bothering him.
Johnnie Robinson and Danny Fultz testified by deposition that they were working near Reynolds on January 15, 2010, but that they had not seen nor heard him fall. Fultz had observed Reynolds limping that morning.
The ALJ also reviewed the medical evidence. He noted that Dr. Anthony McEldowney performed an independent medical evaluation on June 18, 2011. The ALJ summarized Dr. McEldowney's observations and conclusions as follows:
Mr. Reynolds sustained a fall on the left hip with contusion and sprain/strain with exacerbation of previously asymptomatic and dormant arthrosis in the left hip. He opined it is within a reasonable medical probability that it was Mr. Reynolds['s] injury that is the cause of his complaints. It is within a reasonable degree of medical probability that present subjective complaints and directive findings are the direct result of a work-related fall on the left hip on January 15, 2010. . . . Despite appropriate surgery, Mr. Reynolds still has chronic pain and a chronic gait abnormality. He cannot
resume heavy type work activities and therefore cannot return to his previous work. This is causing him to suffer financial hardships as a result. Because of this surgery being performed at such a young age, Mr. Reynolds will also need a number of revision type procedures throughout the rest of his life.
Using the AMA Guides . . . Dr. McEldowney assigned 10% whole person impairment. . . . Because of Mr. Reynold['s] previously asymptomatic condition of Perthes disease and avascular necrosis, 50% of his impairment relates to a previously asymptomatic dormant condition. He did not have an active impairment prior to this injury. . . .
On the other hand, Dr. Richard Sheridan "did not see any evidence that [Reynolds's] condition is related to a specific traumatic episode, such as the slip and fall he is alleging." Dr. Sheridan noted that Reynolds had reported "chronic pain in the left hip which had been worsening for the two months prior to January 15, 2010." He noted "no evidence on the x-rays or CT scan of a harmful change in Mr. Reynolds'[s] condition when compared to the prior x-rays in 2007."
Combined with the testimony of Reynolds's co-workers, the ALJ found Dr. Sheridan's opinion more credible; i.e., that Reynolds's condition was not related to a specific traumatic episode. He found that Reynolds had not fallen at work and that the hip replacement surgery was performed solely to treat the Legg-Calve-Perthes disease. Based upon the evidence, the ALJ concluded that Reynolds had not sustained an injury as defined by the provisions of Kentucky Revised Statute[s] (KRS) 342.0011(1) and dismissed his claim. The Board affirmed, and this petition for review followed.
Reynolds argues that the Board erred by affirming the ALJ's decision since the decision was grounded on points that were not listed as contested issues at the benefit review conference. He contends that issues related either to pre-existing active impairment or to an idiopathic injury were not presented as contested issues by Reynolds's employer and were thereby waived.
However, the ALJ did not rely in his analysis upon the law regarding pre-existing conditions or idiopathic injury. Instead, he found that Reynolds had not proven that he had sustained an injury, which is defined, in part as:
Any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings.KRS 342.0011(1).
A workers' compensation claimant bears the burden of proof regarding his claim. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). When a claimant is unsuccessful below, the issue on appeal is "whether the evidence was so overwhelming upon consideration of the entire record, as to have compelled a finding in his favor." Id. at 736. Compelling evidence is evidence that is so favorable and persuasive that no reasonable person could fail to accept it. Neace v. Adena Processing, 7 S.W.3d 382 (Ky. App. 1999).
In this case, the ALJ was not persuaded that Reynolds suffered a work-related traumatic event on January 15, 2010. He was well within his prerogative to believe or to reject the evidence presented. He concluded that Reynolds had not sustained an injury as that legal term is defined by the provisions of Kentucky's Workers' Compensation Act. Since evidence to the contrary was not so overwhelming as to compel a different finding, we cannot hold that the Board erred by affirming the ALJ's decision.
We affirm the opinion of the Board, which affirmed the ALJ's opinion and order dismissing Reynolds's claim for permanent benefits.
ALL CONCUR. BRIEF FOR APPELLANT: James. D. Howes
Louisville, Kentucky
BRIEF FOR APPELLEE LAYNE
CHRISTENSEN:
Steven D. Goodrum
Kristin M. Downs
Lexington, Kentucky