Opinion
NO. 2013-CA-001734-WC
05-23-2014
LORITTA WHITWORTH APPELLANT v. BIG LOTS; HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Wayne C. Daub Louisville, Kentucky BRIEF FOR APPELLEE BIG LOTS: Walter E. Harding Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-08-74483
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Loritta Whitworth petitions this Court to review a September 16, 2013, Opinion of the Workers' Compensation Board (Board) vacating and remanding an opinion of the Administrative Law Judge (ALJ) awarding Whitworth temporary total disability benefits and permanent total disability benefits upon a reopening of her original claim. We affirm.
On April 25, 2008, Whitworth suffered a work-related injury when a box containing a recliner fell upon her. Consequently, Whitworth filed a claim for workers' compensation benefits alleging an injury to her left upper extremity. By Opinion entered March 24, 2010, the ALJ found that Whitworth suffered a work-related "left shoulder injury," and assessed an eleven-percent impairment rating and awarded permanent partial disability benefits.
Over two years after the work-related injury, Whitworth filed a motion to reopen her claim. Whitworth alleged that her injury worsened and that she was in need of surgery. Specifically, she claimed to be suffering from a cervical spine injury. The motion to reopen was granted as Whitworth had set forth a prima facie case, and the reopening was assigned to an ALJ. Before the ALJ, Big Lots vehemently opposed reopening and argued that Whitworth's cervical spine injury did not constitute a worsening of the original left shoulder injury. By Opinion rendered February 11, 2013, the ALJ concluded that Whitworth's cervical spine injury did constitute a worsening of the original injury and that reopening of the claim was proper:
[Whitworth] is not a physician and the evidence demonstrates that early on she voiced complaints regarding neck pain. It is understandable that [Whitworth] intended that the left upper extremity encompass the neck pain that she had clearly been experiencing for at least a year prior to the filing of the Form 101. It is certainly clear that she had
communicated that pain to her treating physician. The ALJ finds that the term left upper extremity [as used in the Form 101] in this context is sufficient to encompass a cervical spine injury.
Big Lots then sought review with the Workers' Compensation Board. The Board disagreed with the ALJ and concluded that the cervical spine injury was not a worsening of the left shoulder injury:
The March 24, 2010, opinion, award, and order of ALJ Gott clearly defined Whitworth's original injury as a "left shoulder injury." This is consistent with Whitworth's assertion in her brief to ALJ Gott regarding the April 25, 2008, injury. We acknowledge Whitworth, in the Form 101, characterized her injury as a "left upper extremity." However, the scope of the work-related injury is not defined by what Whitworth pled in the Form 101. Additionally, the scope of the work injury, as stated by ALJ Weatherby in the . . . [February 11, 2013,] opinion, award, and order, is not defined by the fact that Whitworth "early on . . . voiced complaints regarding neck pain." The scope of the work-related injury is governed exclusively by ALJ Gott's determination in the March 24, 2010, opinion, award, and order, that Whitworth sustained only a left shoulder injury. This determination was not contested by Whitworth in a petition for reconsideration or on appeal to this Board; therefore, it is the law of the case. Consequently, the sole body part injured on April 24, 2008, is Whitworth's left shoulder.Whitworth now seeks our review.
. . . .
Because ALJ Gott determined Whitworth sustained only a left shoulder injury, ALJ Weatherby could not expand ALJ Gott's definition of the work injury to include a cervical condition. The medical evidence and ALJ Weatherby's findings of fact and conclusions of law establish this is not a case where the cervical condition manifested and became symptomatic after ALJ Gott's decision. Rather, the contrary is true.
Whitworth was suffering from a cervical condition prior to the entry of ALJ Gott's decision. This is entirely consistent with paragraph one of Whitworth's affidavit in which she states she suffered a "work-related injury to her neck . . ." on April 25, 2008. As ALJ Gott defined the April 25, 2008, work injury to be a left shoulder injury, Whitworth cannot seek to redefine the injury on reopening. Similarly, ALJ Weatherby was prohibited from redefining the work injury of April 24, 2008, on reopening. Consequently, it was error for ALJ Weatherby to determine Whitworth's cervical spine condition comprises a "worsening of the same injury."
To begin, judicial review of the Board's opinion is limited. This Court will "correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in accessing the evidence so flagrant as to cause gross injustice." W. Baptist_ Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). And, as fact-finder, the ALJ has sole authority to assess the credibility of evidence and make findings of fact.
Whitworth contends that the Board committed error by vacating the ALJ's opinion that her motion to reopen should be granted. We disagree.
The reopening statute at issue is codified in Kentucky Revised Statues (KRS) 342.125 and reads, in relevant part:
(1) Upon motion by any party or upon an administrative law judge's own motion, an administrative law judge may reopen and review any award or order on any of the following grounds:
(a) Fraud;
(b) Newly-discovered evidence which could not have been discovered with the exercise of due diligence;
(c) Mistake; and
(d) Change of disability as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury since the date of the award or order.
The ALJ determined that the cervical spine injury constituted a worsening of the original injury and reopened the claim under KRS 342.125(1)(d). However, as pointed out by the Board, Whitworth's original work-related injury was clearly identified as a "left shoulder injury" by the ALJ in the March 24, 2010, opinion and order. Consequently, we agree with the Board that the ALJ cannot expand the definition of "left shoulder injury" to reasonably include a cervical spine injury. Accordingly, we cannot say that the Board misconstrued the law or erred in accessing the evidence. We, thus, believe the Board properly vacated and remanded the ALJ's opinion.
We view any remaining contentions by Whitworth as moot or without merit.
For the foregoing reasons, the Opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Wayne C. Daub
Louisville, Kentucky
BRIEF FOR APPELLEE BIG LOTS: Walter E. Harding
Louisville, Kentucky