FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION
BOARD ACTION NO. 11-WC-77648 NO. 2015-CA -000839-WC
FOR APPELLANT AND CROSS-APPELLEE CHRISTOPHER GREGORY: Tamara
Todd Cotton Louisville, Kentucky
FOR APPELLEE AND CROSS-APPELLANT A & G TREE SERVICE:
Rodney J. Mayer Louisville, Kentucky
BEFORE: DIXON, NICKELL AND TAYLOR, JUDGES.
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
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.
the Board made no error, we affirm.
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.
heard extensive evidence and determined the following
permanent impairment ratings: 5% cervical; 20%
thoracic; 4% right shoulder;10% hernias; and 6% right
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 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.
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 (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.
STANDARD OF REVIEW
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
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