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Gregory v. A & G Tree Service

Court of Appeals of Kentucky

February 16, 2018

CHRISTOPHER GREGORY APPELLANT
v.
A & G TREE SERVICE; HON. DOUGLAS W. GOTT, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES AND A & G TREE SERVICE CROSS-APPELLANT
v.
CHRISTOPHER GREGORY; ADMINISTRATIVE LAW JUDGE DOUGLAS GOTT; AND WORKERS' COMPENSATION BOARD CROSS-APPELLEES

         PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. 11-WC-77648 NO. 2015-CA -000839-WC

          BRIEF FOR APPELLANT AND CROSS-APPELLEE CHRISTOPHER GREGORY: Tamara Todd Cotton Louisville, Kentucky

          BRIEF FOR APPELLEE AND CROSS-APPELLANT A & G TREE SERVICE: Rodney J. Mayer Louisville, Kentucky

          BEFORE: DIXON, NICKELL AND TAYLOR, JUDGES.

          OPINION

          NICKELL, JUDGE:

         This appeal and cross-appeal come from a decision of the Workers' Compensation Board ("Board") which affirmed in part, vacated in part, and remanded a decision of Administrative Law Judge ("ALJ") Douglas Gott. The Board vacated the ALJ's finding that Christopher Gregory had a 45% permanent partial disability ("PPD") because the ALJ insufficiently set forth the facts relied upon. In so doing, the Board also vacated Dr. Warren Bilkey's assessment of a 4% right shoulder impairment and Dr. Richard Eiferman's 6% right eye impairment. Finally, the Board affirmed the ALJ's conclusion Gregory was not entitled to a "safety violation" benefit enhancement.

         On appeal, Gregory argues the Board erred by vacating the 4% and 6% impairment ratings and by affirming the denial of the benefit enhancement. On cross-appeal, A & G Tree Service ("A & G") claims the ALJ made sufficient findings to support his 45% PPD rating and the Board erred in vacating said award.

         Finding the Board made no error, we affirm.

         I. FACTS.

         In August 2011 Gregory began working as a tree trimmer for A & G. On August 18, 2011, James Coleman, Gregory's supervisor, was driving a company truck with Gregory and other A & G employees as passengers. The vehicle was involved in an accident when it sideswiped a school bus. Gregory alleged Coleman had smoked marijuana 30 minutes to one hour before the accident. He also claimed it was raining at the time and Coleman was driving too fast and erratically. One of the employees in the truck died of injuries sustained in the accident and Gregory was severely injured. This workers' compensation case revolves around the injuries Gregory sustained in the crash.

         The ALJ heard extensive evidence and determined the following permanent impairment ratings: 5% cervical;[1] 20% thoracic;[2] 4% right shoulder;[3]10% hernias;[4] and 6% right eye.[5] He also determined Gregory was not currently suffering any psychological impairment. The ALJ did not believe Gregory was totally disabled, holding Gregory remained capable of returning to some work activities, and assigned a 45% whole person permanent impairment rating for purposes of determining the extent and duration of PPD income benefits under KRS[6] 342.730(1)(b) and (c). In addition, the ALJ also determined Gregory was not entitled to the safety violation enhancement set forth in KRS 342.165(1) based on his finding of no evidence suggesting A & G knew Coleman would operate a company truck in an unsafe manner, thereby creating an intentional safety violation.

         The Board affirmed the ALJ's determination of no safety violation enhancement, but vacated his determination of a 45% whole person permanent impairment rating, remanding the claim for additional findings. Specifically, the Board held the ALJ provided insufficient findings with citation to specific evidence supporting his assessment of a 45% whole person impairment rating and his determination that Gregory was not totally disabled due to the extensive injuries. Further, the Board held the ALJ erroneously relied on Dr. Bilkey's assignment of a 4% right shoulder impairment rating because the physician admitted the condition had not reached maximum medical improvement, as defined and required by the Guides to the Evaluation of Permanent Impairment, Fifth Edition[7] (Guides). In addition, the Board held the ALJ erroneously relied on Dr. Eiferman's 6% right eye impairment rating because the physician failed to state the rating was based on the Guides, as required by KRS 342.0011(35) and KRS 342.730(1)(b). Finally, the Board held Coleman's actions could not be imputed to A & G because the employer had no reason to believe Coleman would drive dangerously. This appeal followed.

         II. STANDARD OF REVIEW

         "The function of further review of the [Board] in the Court of Appeals is to correct the Board only where the [sic] 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).

The claimant in a workman's compensation case has the burden of proof and the risk of persuading the board in his favor. . . . If the board finds against a claimant who had the burden of proof and the risk of persuasion, the court upon review is confined to determining whether or not the total evidence was so strong as to compel a finding in claimant's favor.

Snawder v. Stice, 576 S.W.2d 276, 279-80 (Ky. App. 1979) (citations omitted). "Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal." Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999) (citation omitted).

         III. ...


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