Roger Brent Boling v. Owensboro Municipal Utilities ( 2017 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO JHE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76;28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED: APRIL 27, 2017
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NOT TO BE PUBLISHED
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2016-SC-000465-WC
ROGER BRENT BOLING APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2016-CA-000086-WC
WORKERS' COMPENSATION BOARD NO. 14~WC-99215
OWENSBORO MUNICIPAL UTILITIES, APPELLEES
HONORABLE JONATHAN .R. WEATHERBY, ADMINISTRATIVE
LAW JUDGE AND
THE WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Roger Boling appeals a ruling of the Court of Appeals which affirmed a
ruling made by the Workers' Compensation Board. Boling raises two
arguments before this Court: (1) the evidence compels a finding contrary to the
previous rulings which held that Boling's 2013 work-related injury was an
exacerbation of a previous work-related injury; and (2) that the findings of fact
and conclusions of law set forth by the Administrative Law Judge, ("AW") are
inconsistent. Boling has not previously asserted his second issue. Accordingly,
because Boling raises his second issue for the first time on appeal to this
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Court, we refuse to entertain his argument. 1 After reviewing the record we -
affirm the ruling of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Boling has been employed by Owensboro Municipal Utilities since 1996.
In the course of his employment Boling repairs auxiliary equipment associated
with power generation. This work is physically demanding and entails lifting
heavy objects as well as having to bend, twist, and squat.
Boling sustained a work-related injury in 2007 while carrying a piece of
equipment down a set of stairs. As a result of this injury, Boling underwent
surgery on his L4-L5 spine, and was later released to work in 2009. Boling
settled, his claim on September 23, 2008, based on a 13% AMA impairment
rating.
On December 26, 2013, while carrying a piece of equipment weighing
close to 100 pounds, Boling was injured again. His condition improved after
being put on light duty and completing limited physical therapy. Boling was
released to regular duty in late January of 2014.
In April, 2014, his symptoms reappeared. This was the result of working
for long periods of time and performing heavy lifting and bending. Boling
·complained that the pain worsened on the right side of his buttocks, leg, calf,
and ultimately reached into his right foot.
1 KRS 342.281; See Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls
Hanvood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000).
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Boling went to Dr. Rhodes, the company physician, who referred him to
Dr. Troffkin, the same physician who had treated Boling in 2007. A MRI was
performed on May 22, 2014, and confirmed a right-sided L4-L5 disc bulge with
nerve root compression. Dr. Troffkin performed surgery on July 16, 2014, to
repair Boling's L4-L5 injury. Boling returned to full duty on September 8, 201"1-.
Boling then sought permanent occupational disability benefits as a result
of his December 26, 2013, injury. A Benefits Review Conference and a Formal
Hearing were conducted in March, 2015. As was noted by the Court of Appeals,
the contested issue revolved around whether Boling was entitled to any
benefits, or if further benefits were barred by KRS 342. 730, the exclusion for
prior active disability or impairment, temporary total disability, and temporary
exacerbation of a prior injury.
On May 2, 2015, an AW rendered an Opinion and Award denying Boling
permanent partial disability benefits. The judge cited three physicians in his
decision, Dr. Rhodes, Dr. Troffkin, and Dr. Loeb. The AW held that the
evidence supported a finding that Boling suffered a temporary exacerbation of
his 2007 injury.
Boling appealed to the Workers' Compensation Board. Finding that the
AW properly exercised his discretion as a fact-finder, the Board rendered an
Opinion Affirming.
Boling then appealed to the Court of Appeals. Similar to the Workers'
Compensation Board ruling, the Court of Appeals found that the AW properly
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used his discretion in his ruling. Ultimately, using the same standard we must
use, the Court of Appeals affirmed the Board ruling.
II. ANALYSIS.
Boling faces a stringent standard of review before this Court.· In a hearing
before an AW, the worker shoulders the burden of proving each essential ·
element of his claim. 2 Furthermore, if a party is unsuccessful before the AW,
we will not disturb the ruling unless there is evidence that compels a different
result.3 Compelling evidence is defined as evidence so overwhelming that no
reasonable person could reach the same result as the AW. 4
A. The evidence presented $foes not compel a finding in favor of Boling.
The AW relied on three different physicians in making his finding.
According to the AW's findings, two of the physicians, Dr. Loeb and Dr.
Rhodes, agreed that Boling's 2013 injury was not a new injury. On the other
hand, Dr. Troftkin did believe that Boling's 2013 injury should be considered a
new injury. The AW, as the finder of fact, has the sole authority to determine
the weight, credibility, substance, and inferences to be drawn from the
evidence. s Furthermore, where the evidence is conflicting the AW may choose
whom or what to be!ieve.6
2 Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).
3 See Hale v. CDR Operations, Inc., 474 S.W.3d 129, 140 (Ky. 2015); Wolf Creek
Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
• REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).
s See Paramount Foods, Inc. v. Burkhardt, 695 S:W.2d 418 (Ky. 1985)
6 See Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).
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Dr. Loeb conducted a peer review to address Boling's diagnosis. In doing
so, Dr. Loeb reviewed all relevant medical records and examined Boling's
history of work related incidents, including treatment and recovery. In his
medical opinion, Dr. Loeb believed that Boling did not suffer a new injury in
2013, rather it was Dr. Loeb's opinion that Boling was suffering from the
recurrence of a prior medical condition. In addition to Dr. Loeb's medical
opinion was that of Dr. Rhodes. In his medical opinion, Dr. Rhodes believed
that Boling's symptoms were a temporary exacerbation of the 2007 injury.
Contrary to Dr. Loeb and Dr. Rhodes, Dr. Troffkin believed that Boling was
suffering from a new injury.
Considering the evidence as a whole, the AW made the following finding,
"... the AW is convinced by the opinions of Drs. Loeb and Rhodes that the
December incident was a temporary exacerbation of the.2007 injury. The AW
further finds that per the opinion of Dr. Troffkin, no additional permanent
impairment rating is warranted. The AW .finds that the Plaintiff suffered a
temporary exacerbation of the prior injury."
Because a review court must give great deference to the AW as the finder
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of fact, Boling has not convinced us that the evidence compels a different
result. Like the Court of Appeals and Workers' Compensation Board, we fail to
find any compelling evidence which would permit us to overturn the AW's
decision. While Boling may believe Dr. Troffkin's testimony is more correct than
that of the other two physicians, the AW acted within his authority in
exercising his discretion and finding the testimony of Drs. Loeb and Rhodes
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more persuasive. There is no indication that the AW was derelict in his
examination of the evidence and he made a reasonable ruling. As a result, we
will not disturb a proper ruling by the Court of Appeals.
III. CONCLUSION
For the foregoing reasons, the Court of Appeals is affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Scott Mitchell Miller
COUNSEL FOR APPELLEE: OWENSBORO MUNICIPAL UTILITIES
Sherri Lynn Keller
Ferreri & Fogle, PLLC
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