Louisville Paving Company v. Michael Jackson ( 2015 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE 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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
.
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: FEBRUARY 19, 2015
NOT TO BE PUBLISHED
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2014-SC-000225-WC
DAT E, 3
LOUISVILLE PAVING
PAVING COMPANY APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2013-CA-002062-WC
WORKERS' COMPENSATION NO. 10-00820
MICHAEL JACKSON; R. ELSWICK TRUCKING;
JAMES LYNN, D/B/A J. LYNN TRUCKING;
HONORABLE THOMAS POLITES,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Louisville Paving Company, appeals a decision of the
Administrative Law Judge ("ALJ") which held that Kentucky has jurisdiction
over Michael Jackson's workers' compensation claim. Louisville Paving
contends that Kentucky does not have jurisdiction over the claim because
certain evidence indicates the work-related injury occurred in Indiana. For the
below stated reasons we affirm the Court of Appeals.
At the time of the work-related injury, Jackson was employed by R.
Elswick Trucking LLC, a business located in New Albany, Indiana. Elswick
Trucking was hired by J. Lynn Trucking to haul materials for Louisville Paving
on June 29, 2010. That morning, Jackson picked up his truck in New Albany,
and transported three loads of rock between a quarry in Louisville and an
asphalt plant in Bullitt County. In the afternoon, Jackson transported four
loads of asphalt from the quarry in Louisville to a site in Oldham County.
Jackson alleges that all of the asphalt would not come out of his truck
bed when transferred to a paver. He stated that after each load he had to
climb into the back of his truck and clean out the bed with a shovel. Louisville
Paving refutes Jackson's claim that he cleaned the truck after each load
because it had a policy which prohibited drivers from performing that task. It
provides a backhoe for drivers to clean the bed if necessary. Additionally,
Louisville Paving also provides a soap substance for drivers to coat their truck
bed which helps prevent the asphalt from sticking. After the last load of
asphalt was delivered, Jackson returned to Elswick Trucking in New Albany.
At the trucking company, Jackson cleaned out the truck bed for the last time,
a task which took about fifteen minutes and involved chipping away hardened
asphalt with a shovel.
Jackson states that he did not feel any discomfort while working but that
his back began to tighten up once he got home. The next morning was the first
time he felt pain. The pain was so severe that he could not get out of bed or
report to work. Jackson was treated at a hospital that night and three days
later visited his family physician. Jackson ultimately underwent surgery to
treat a low back strain. He has not returned to work since the work-related
injury.
2
Jackson filed a claim for workers' compensation. The workers'
compensation insurance, which Elswick Trucking maintained at the time of
Jackson's injury, only covered injuries which occurred in Indiana. Therefore,
the Uninsured Employers' Fund was added as a party. Louisville Paving was
also added as a party because Elswick Trucking was acting as its sub-
contractor.
The claim was first assigned to ALJ Richard Joiner. ALJ Joiner
dismissed Jackson's claim finding that Kentucky did not have jurisdiction
because he found the work-related injury occurred in Indiana. On appeal, the
Workers' Compensation Board reversed and remanded the matter for ALJ
Joiner to provide further analysis and facts for his conclusion. Before a new
opinion could be rendered, the matter was reassigned to the current ALJ.
After an evidentiary hearing, the ALJ determined that Kentucky had
jurisdiction over Jackson's claim. In so finding, he stated:
[t]he ALJ is convinced that limited shoveling of asphalt in order to
keep the truck bed cleaned is part of [Jackson's] job and while the
ALJ does not believe that [Jackson] did an inordinate amount of
asphalt shoveling on the day of injury, the ALJ is convinced that
[Jackson] did in fact have to shovel asphalt during the afternoon of
the day of injury in Kentucky, as well as in Indiana at the end of
the day.
Given the finding that [Jackson] shoveled asphalt in Kentucky
on the date of injury, when viewed in light of the unrebutted
medical testimony that [Jackson's] injury was caused by shoveling
asphalt, it is hereby determined that [Jackson] has suffered an
injury that is compensable under the Kentucky Workers'
Compensation Act given that it occurred in Kentucky.
The ALJ alternatively held that even if the work-related injury occurred in
Indiana, extraterritorial jurisdiction existed per KRS 342.670. The ALJ
3
awarded Jackson temporary total disability benefits, permanent partial
disability benefits, and medical expenses. Louisville Paving filed a petition for
reconsideration which was denied. 'The Board and Court of Appeals affirmed,
and this appeal followed.
Louisville Paving argues that the AI.,J erred by finding that Kentucky has
jurisdiction over Jackson's claim because it contends the work-related injury
occurred in Indiana.' We note that the ALJ has the sole discretion to
determine the quality, character, and substance of the evidence and may reject
any testimony and believe or disbelieve various parts of the evidence regardless
of whether it comes from the same witness or the same party's proof.
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Since Jackson
had the burden of proof, and prevailed before the ALJ the question on appeal
,
is whether the evidence supported the finding in his favor. Wolf Creek
Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). "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. The
crux of the inquiry on appeal is whether the finding which was made is so
unreasonable under the evidence that it must be viewed as erroneous as a
matter of law." Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52
(Ky. 2000).
1 Because we find that Kentucky has jurisdiction over this claim, we do not address
Louisville Paving's argument regarding extraterritorial jurisdiction.
4
The ALJ's finding that at least part of Jackson's work-related injury
occurred in Kentucky is supported by substantial evidence. Medical testimony
indicated that Jackson's injury was caused by shoveling asphalt and the ALJ
believed Jackson's testimony that he performed that task not only at the-end of
his shift in Indiana, but at least several times while in Kentucky. The AU was
within his discretion to find that testimony credible. While there is evidence
that Louisville Paving prohibited drivers from cleaning out the truck beds for
safety reasons and provided them a soap substance to keep the asphalt from
sticking to the truck beds, that alone does not discredit Jackson's testimony.
The ALJ's findings are not unreasonable, and his finding that Kentucky has
jurisdiction may not be disturbed.
For the above stated reasons, we affirm the decision of the Court of
Appeals.
Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ.,
sitting. All concur.
5
COUNSEL FOR APPELLANT,
LOUISVILLE PAVING COMPANY:
Douglas Anthony U'Sellis
COUNSEL FOR APPELLEE,
MICHAEL JACKSON:
Charles E. Jennings
COUNSEL FOR APPELLEE,
R. ELSWICK TRUCKING:
Judson Fuller Devlin
COUNSEL FOR APPELLEE,
JAMES LYNN, D/B/A J. LYNN TRUCKING:
James R. Wagoner