Archie Blackburn v. Martin County Board of Education ( 2020 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
2019-SC-0635-WC
MARTIN COUNTY BOARD OF APPELLANT
EDUCATION
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2018-CA-1868-WC
WORKERS’ COMPENSATION BOARD
NO. 15-WC-62517
ARCHIE BLACKBURN; DR. BAL BANSAL; APPELLEES
CARDINAL HILL HOSPITAL; HON. CHRIS
DAVIS, ADMINISTRATIVE LAW JUDGE;
AND KENTUCKY WORKERS’
COMPENSATION BOARD
AND 2019-SC-0647-WC
ARCHIE BLACKBURN APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2018-CA-1868-WC
WORKERS COMPENSATION BOARD
NO. 15-WC-62517
MARTIN COUNTY BOARD OF APPELLEES
EDUCATION; BAL K. BANSAL, M.D.;
CARDINAL HILL HOSPITAL;
HON. CHRIS DAVIS, ADMINISTRATIVE
LAW JUDGE; AND KENTUCKY WORKERS’
COMPENSATION BOARD
1
MEMORANDUM OPINION OF THE COURT
AFFIRMING
On November 16, 2018, the Workers’ Compensation Board (Board)
issued an opinion affirming the Administrative Law Judge’s (ALJ) award of
permanent partial disability (PPD) benefits to Archie Blackburn for a work-
related head injury and denial of an award for an alleged work-related cervical
injury. Martin County Board of Education (Martin County) and Blackburn
separately appealed to the Kentucky Court of Appeals which affirmed the
Board. Both appealed to this Court as a matter of right. See Vessels v. Brown
Forman Distillers Corp., 793 S.W.2d 795, 798 (Ky. 1990); Ky. Const. §115. The
two appeals were subsequently designated to be heard together for decision in
a single Opinion. We affirm.
The pertinent historical facts and procedural history were succinctly set
out in the opinion of the Court of Appeals as follows.
Blackburn was employed as an electrician and maintenance
worker with the Martin County Board of Education (Board of
Education). On October 30, 2015, Blackburn was injured while
working at the Eden Elementary Sewer Plant. Blackburn was
discovered lying across the driver’s seat in his motor vehicle and
was unresponsive. It was noted that Blackburn’s right arm had
scratches and abrasions, and there was dried blood in his right
ear. Blackburn possessed a limited memory of the events leading
to his injury. He testified that he remembered hearing a noise
while at the sewer plant and believed a belt in a motor was in need
of repair. While attempting to effectuate repairs, he believed that
he was standing on a grate that broke causing him to fall. During
transport to the Emergency Room by EMS, it was noted that
Blackburn’s right side would shake and tremor. At the time of the
incident, a Glasgow Coma Test was performed on Blackburn, and
he scored 10, indicating moderate brain injury.
2
Blackburn filed a claim for workers’ compensation benefits. He
claimed to have sustained a traumatic brain injury and a cervical
spine injury. Blackburn asserted that he experienced profound
memory loss, weakness in his right arm and leg, tremor in his
right hand, confusion, difficulty with speech, headaches, and
balance issues. The Board of Education denied that Blackburn
suffered a compensable work-related injury and maintained that
he was malingering.
On May 21, 2018, the ALJ rendered an Opinion, Award, and Order
(opinion). Therein, the ALJ found that Blackburn suffered a work-
related head injury that resulted in permanent partial disability.
The ALJ assigned a 24-percent impairment rating. Also, the ALJ
found that Blackburn did not suffer a compensable work-related
injury to his cervical spine. Both Blackburn and the Board of
Education sought review with the Workers’ Compensation Board
(Board). By Opinion entered November 16, 2018, the Board
affirmed the ALJ’s opinion.
Blackburn v. Martin Cty. Bd. ofEduc., 2018-CA-001868-WC, 2019 WL
5091989, at *1 (Ky. App. Oct. 11, 2019).
The Court of Appeals unanimously agreed the Board correctly affirmed
the ALJ’s decision regarding Blackburn’s lack of a compensable cervical injury.
However, in affirming the ALJ’s award of PPD benefits for Blackburn’s head
and brain injury, a divided panel rejected Martin County’s assertions that the
ALJ failed to consider all the evidence, the evidence was insufficient to support
a finding of work-relatedness, and the ALJ failed to render adequate factual
findings. The dissent, believing additional and more specific factual findings
were warranted, would have remanded to the ALJ to make such findings.
These consolidated appeals followed.
Standard of Review
On questions of fact, “(t]he ALJ as fact finder has the sole authority to
judge the weight, credibility, substance, and inferences to be drawn from the
3
evidence.” LKLPCAC Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (citing
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985)).
KRS 342.285 gives the ALJ the sole discretion to determine the
quality, character, and substance of evidence. As fact-finder, an
ALJ 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 total proof. KRS 342.285(2) and KRS
342.290 limit administrative and judicial review of an AU’s
decision to determining whether the AU “acted without or in
excess of his powers;” whether the decision “was procured by
fraud;” or whether the decision was erroneous as a matter of law.
Legal errors would include whether the AU misapplied Chapter
342 to the facts; made a clearly erroneous finding of fact; rendered
an arbitrary or capricious decision; or committed an abuse of
discretion.
Abel Verdon Const, v. Rivera, 348 S.W.3d 749, 753-54 (Ky. 2011) (footnotes
omitted). To reverse, we must determine the AU’s findings were “so
unreasonable under the evidence that it must be viewed as erroneous as a
matter of law.” KRS 342.285; Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d
48, 52 (Ky. 2000).
Blackburn, as the claimant in a workers’ compensation proceeding, had
the burden of proving each of the essential elements of his claim and likewise
carried the risk of non-persuasion. Snawder v. Stice, 576 S.W.2d 276, 279 (Ky.
App. 1979). “[W]here the party with the burden of proof was successful before
the AU, the issue on appeal is whether substantial evidence supported the
AU’s conclusion.” Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999).
“Substantial evidence means evidence of substance and relevant consequence
having the fitness to induce conviction in the minds of reasonable men.”
Smyzerv. B.F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky. 1971).
4
If the claimant is unsuccessful before the ALJ, the question becomes
whether the evidence compels a different result. Wolf Creek Collieries v. Crum,
673 S.W.2d 735, 736 (Ky. App. 1984). “In order to rise to the level of
compelling evidence, and thereby justify reversal of the ALJ under this
circumstance, the evidence must be so overwhelming that no reasonable
person could reach the same conclusion as did the ALJ.” Groce v. VanMeter
Contracting, Inc., 539 S.W.3d 677, 682 (Ky. 2018) (citations omitted).
The function of further review of the [Board] in the Court of
Appeals is to correct the Board only where the 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. The function of
further review in our Court is to address new or novel questions of
statutory construction, or to reconsider precedent when such
appears necessary, or to review a question of constitutional
magnitude.
W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). With these
standards in mind, we turn to the issues presented in each appeal.
Appeal No. 2019-SC-0635-WC
Martin County presents a single challenge to the rulings below, namely
that the ALJ failed to make “essential and vital” findings of fact. It asserts the
conflicting evidence presented requires additional and more detailed findings
than those included in the ALJ’s Opinion, Award, and Order. In support,
Martin County argues the ALJ “seemingly glossed over” aspects of the case in
reaching his conclusion. Martin County then includes a lengthy recitation of
the evidence it believes was so contradictory and inconsistent as to mandate
the requested additional findings of fact, and which it suggests would likely
5
compel a ruling in its favor if remand were ordered. In essence, Martin
County’s challenge rests on its interpretation of the evidence to the exclusion of
other potential constructions, and its perception that the ALJ’s failure to make
findings on what Martin County unilaterally deems “essential” facts constitutes
reversible error. We disagree.
An ALJ is not required to make factual findings related to each and every
piece of evidence presented nor comment upon all potential interpretations
thereof. However, the parties are entitled to a sufficient explanation by the ALJ
of the basis for the decision. Whittaker, 998 S.W.2d at 481. As stated in
Arnold v. Toyota Motor Mfg., 375 S.W.3d 56 (Ky. 2012), the statutory framework
of workers’ compensation claims expects an ALJ to render
an opinion that summarizes the conflicting evidence concerning
disputed facts; weighs that evidence to make findings of fact; and
determines the legal significance of those findings. Only when an
opinion summarizes the conflicting evidence accurately and states
the evidentiary basis for the ALJ’s finding does it enable the Board
and reviewing courts to determine in the summary manner
contemplated by KRS 342.285(2) whether the finding is supported
by substantial evidence and reasonable.
Id. at 61-62 (footnotes omitted).
Here, the ALJ clearly satisfied the foregoing requirements. The Opinion,
Award, and Order accurately set forth the conflicting evidence before weighing
it and making factual findings supporting the ALJ’s ultimate conclusion
Blackburn suffered a compensable work-related head and brain injury. The
findings of fact were sufficient, as correctly found by the Court of Appeals.
While more findings could have been rendered, the ALJ sufficiently explained
the basis for his conclusions. Although Martin County cites evidence which
6
may have supported a different conclusion, existence of such evidence is an
inadequate basis to support reversal on appeal. See McCloud v. Beth-Elkhorn
Corp., 514 S.W.2d 46 (Ky. 1974). There was no error.
Appeal No. 2019-SC-0647-WC
Blackburn argues the Court of Appeals should be reversed for rejecting
his assertion the ALJ erred in not awarding him benefits for his alleged cervical
injury. As below, he argues the opinion of his treating physician, Dr. Bal K.
Bansal, was uncontroverted and definitively established existence of a
compensable work-related cervical injury. Blackburn asserts Dr. Joseph L.
Zerga—upon whose opinion the ALJ, the Board, and the Court of Appeals
relied—did not evaluate or address the cervical injury, and therefore, his report
cannot reliably contradict Dr. Bansal’s opinion. In Blackburn’s view, the ALJ
was required to accept the opinion of Dr. Bansal regarding his alleged cervical
injury. Again, we disagree.
Contrary to Blackburn’s contention, Dr. Zerga indicated he reviewed Dr.
Bansal’s medical reports but had concluded Blackburn had incurred no
compensable work-related injury. Dr Zerga’s medical opinion would
necessarily encompass Blackburn’s alleged cervical injury. The ALJ exercised
his discretion in assessing the conflicting medical evidence and determined Dr.
Zerga’s opinion to be more credible. Fleming, 520 S.W.3d at 386. As the Court
of Appeals correctly concluded, the evidence simply did not compel a finding in
Blackburn’s favor. Wolf Creek Collieries, 673 S.W.2d at 736. Thus, the AU did
not err in denying an award of benefits for the alleged cervical injury.
7
For the foregoing reasons, we affirm the opinion of the Court of Appeals
upholding the decisions issued by the Board and the ALJ.
All sitting. All concur.
COUNSEL FOR APPELLANT, MARTIN COUNTY BOARD OF EDUCATION:
James Gregory Allen
COUNSEL FOR APPELLEE, ARCHIE BLACKBURN:
Jeffrey Dale Hensley
8