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January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  September 22, 2017

 

 

CLAIM NO. 201687853

 

 

ROSA MOSAIC & TILE CO. D/B/A

BELLA STONE DESIGNS                            PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. DOUGLAS GOTT,

              CHIEF ADMINISTRATIVE LAW JUDGE

 

 

 

TONY PECK

AND HON. DOUGLAS GOTT,

CHIEF ADMINISTRATIVE LAW JUDGE                RESPONDENTS

 

 

OPINION

AFFIRMING

 

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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

 

RECHTER, Member.  Rosa Mosaic & Tile Co. d/b/a Bella Stone Designs (“Bella Stone”) appeals from the May 15, 2017 Opinion, Award and Order and the June 5, 2017 Order on Reconsideration rendered by Hon. Douglas Gott, Chief Administrative Law Judge (“CALJ”).  The CALJ determined Tony Peck (“Peck”) suffered a work-related back injury for which timely notice was given.  Bella Stone challenges these conclusions on appeal.  We affirm.

     Peck worked for Bella Stone as a working supervisor.  He cut slabs of granite with a water jet stone saw, which required him to regularly deadlift in excess of 100 pounds.  In 2008, while working for another employer in a similar position, Peck herniated his disc at L4-5.  He underwent surgery and returned to work in the stone industry.

     Peck testified he was deadlifting a stone of granite with Gary Reed (“Reed”), a co-worker, on February 1, 2016.  He felt an immediate stabbing pain and informed Dennis Burch (“Burch”), a supervisor.  The pain did not dissipate over the next week.  On February 9, 2016, he visited the St. Mary and Elizabeth Hospital emergency room with acute back pain.  The hospital record indicates Peck reported back pain for the prior nine days.  He answered “yes” when asked if the injury was recent.  A portion of the form asks for context of the injury.  The hospital note indicates “lifting”, with the notation “granite, at work.”  He was referred to Dr. Gregory Nazar, who had performed his 2008 surgery. 

     On March 14, 2016, Dr. Nazar first evaluated Peck and noted his very physical job.  He initially suspected Peck may have reherniated his L4-5 disc.  However, an MRI indicated Peck had a “new onset” herniated disc at L5-S1.  In an April 19, 2016 office note, Dr. Nazar explained the acute onset of Peck’s symptoms while lifting at work, and the fact he suffered a herniation at a new level, suggests a work-related injury.  However, in the Form 107, Dr. Nazar listed the causation of Peck’s injury as “unknown”, and the onset of symptoms was gradual.  He further noted, “no specific event. But he lifts heavy granite at work.”

     Dr. Greg Gleis conducted an independent medical evaluation on January 31, 2017.  He agreed Peck suffered a distinct injury at L5-S1, unrelated to the prior L4-5 injury.  Regarding causation, Dr. Gleis stated, “Based upon Mr. Peck’s history and the records, there was a new ‘injury’ that occurred on January 30, 2016 causing a right leg radiculopathy.”

     Bella Stone emphatically contested causation.  Peck testified he felt an immediate stabbing pain while lifting granite and informed Burch. After visiting the emergency room, he brought the hospital records to Teri Villier (“Villier”) on his next work day.  Peck was later terminated for absenteeism.  His last day of work was March 11, 2016.   

     Reed was deposed, and denied witnessing Peck’s injury.  However, on cross-examination, he recalled Peck complained about his back hurting at various times.  He also stated Peck told him he had gone into the office and told Burch he hurt his back.  Burch testified Peck never reported a specific injury to him, though he was aware of Peck’s prior back injury.  Burch stated he first became aware of the alleged back injury after Peck informed Villier, who relayed the information. 

          Villier testified she first heard of Peck’s injury when the hospital called her to inquire about a workers’ compensation claim number.  Peck was not at work that day.  The next time he came to work, he brought Villier a doctor’s note.  According to Villier, she asked him about the injury and he attributed it to his 2008 back injury.  She did not complete a first report of injury or other business record documenting the injury until after Peck was terminated.

     The CALJ relied upon the medical opinions of Drs. Nazar and Gleis to conclude Peck suffered a new injury at the L5-S1 level, distinct from his 2008 injury.  He further relied on the testimony of Peck and Reed to conclude the back injury was caused by lifting at work.  Bella Stone challenged the finding of a work-related injury in its petition for reconsideration.  It also requested further findings of fact regarding the issue of notice.  The CALJ reiterated his prior finding of a work-related injury, and his reliance on Drs. Nazar and Reed.  He further concluded Peck gave sufficient notice of his work injury to Villier when he brought her the emergency room record and note. 

     On appeal, Bella Stone argues the evidence is insufficient to support a finding of a work-related injury.  Drs. Nazar and Gleis opined Peck suffered a new injury at L5-S1.  Bella Stone argues these opinions are unreliable because the doctors’ opinions as to causation are based solely on the history provided by Peck.  Bella Stone further argues Peck’s testimony was contradictory and there is insufficient other proof to conclude his back condition is work-related.

          Peck successfully bore the burden of establishing his condition is work-related.  Therefore, the question on appeal is whether substantial evidence exists to support the CALJ’s decision.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  The CALJ may draw reasonable inferences from the evidence, 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 (Ky. 2000).

     Bella Stone has merely identified proof which would support a conclusion in its favor, while disregarding the evidence supporting the CALJ’s decision.  Peck testified he was lifting an excessively heavy piece of solid stone when his back immediately began hurting.  He thought the pain might be related to his prior injury and hoped it would spontaneously heal, but it did not.  He provided this history to the emergency room, Dr. Nazar and Dr. Gleis.  Dr. Gleis considered this history in conjunction with Peck’s established condition and concluded, within medical probability, that the injury is work-related.  Dr. Nazar believed the history and the onset of symptoms “suggests” a work-related injury.  Reed recalled Peck complaining about back pain, and telling Reed he had reported his back pain to Burch. 

     Bella Stone’s arguments concerning Peck’s credibility and the proper interpretation of Reed’s testimony go to the weight to be afforded the evidence.  However, Bella Stone has not identified a reason why any of the testimony is unreliable as a matter of law.  The CALJ enjoys the discretion to assess the credibility of the witnesses, and choose whom to rely upon.  There is sufficient proof in the record to support the CALJ’s ultimate conclusion.

          Bella Stone also challenges the finding Peck provided sufficient notice.  Its primary argument is that no work event occurred, and therefore Peck could not report a non-event.  Peck testified he brought his emergency room records to Villier the next work day.  Villier confirmed the receipt of these records, as well as a call from the hospital the day before.  This proof is sufficient to support the CALJ’s conclusion that Peck provided timely notice of a work injury.

     Finally, Peck filed a motion before this Board for costs and fees.  Peck argues Bella Stone’s appeal is frivolous, contains misstatements of fact, and is an attempt to delay payment of benefits.  KRS 342.310 permits an award of costs and attorneys’ fees when there is no reasonable ground for appeal.  

     Bella Stone submitted evidence which challenged the work-relatedness of Peck’s back injury.  We also note the variance between Dr. Nadar’s statements in the Form 107 and in his office notes.  For these reasons, we believe Bella Stone has a minimally sufficient basis to appeal this claim.

     However, we likewise recognize the obvious animosity between Peck and his employer, and are compelled to surmise these sentiments played no small role in Bella Stone’s refusal to reach a compromise.  We also remind counsel for Bella Stone of his duty of candor when making statements such as, “no traumatic event is listed anywhere within this record”, referring to the emergency room records.  This statement is patently false.  The emergency room form clearly and unambiguously documents a lifting incident involving granite at work.  In its response to Peck’s motion for costs and fees, Bella Stone explains, “this set of emergency room records only support [Peck] ‘may’ have hurt himself at work.”  This type of semantic acrobats is unavailing, and not well received. 

     Bella Stone’s basis to deny settlement of and to appeal this claim was very weak.  However, we cannot conclude it rises to the level of warranting sanctions.  For this reason, Peck’s motion for costs and attorney’s fees is DENIED. 

For the foregoing reasons, the May 15, 2017 Opinion, Award and Order and the June 5, 2017 Order on Reconsideration rendered by Hon. Douglas Gott, Chief Administrative Law Judge are hereby AFFIRMED. 

          ALL CONCUR.

 

COUNSEL FOR PETITIONER:

 

HON GREGORY LITTLE

1510 NEWTOWN PIKE #108

LEXINGTON, KY 40511

 

COUNSEL FOR RESPONDENT:

 

HON PIERRE J COOLEN

333 W VINE ST #1200

LEXINGTON, KY 40507

 

CHIEF ADMINISTRATIVE LAW JUDGE:

 

HON DOUGLAS GOTT

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601