Randy Faulkner v. Ez Pack Refuse Hauling Solutions ( 2022 )

RENDERED: JULY 15, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0282-WC
RANDY FAULKNER APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. WC-20-01106 AND WC-20-77760
EZ PACK REFUSE HAULING
SOLUTIONS; HONORABLE PETER J.
NAAKE, ADMINISTRATIVE LAW
JUDGE; AND THE WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND MAZE, JUDGES.
MAZE, JUDGE: Randy Faulkner (Faulkner) has brought the within petition for
review of an opinion of the Workers’ Compensation Board (Board) affirming the
September 21, 2021, opinion and order dismissing Faulkner’s claims rendered by
Honorable Peter J. Naake, Administrative Law Judge (ALJ). We also affirm.
On August 18, 2020, Faulkner filed a Form 101 in claim number
WC-20-77760 alleging injury to his low back arising out of a fall sustained at his
place of employment on June 16, 2020. On August 19, 2020, he also filed a Form
101 in claim number WC-20-001106 as to a neck injury, head laceration, and a
concussion sustained on June 17, 2020, following another fall at his place of
employment. Both claims were consolidated by order entered on September 18,
2020.
A final hearing was conducted by the ALJ on July 13, 2021.
Following that hearing, the ALJ concluded that Faulkner did not sustain an
“injury” as defined in KRS 342.0011(1) on either occasion. In so doing, he found
that Faulkner’s testimony was simply “not credible.” Further, he held that the
expert testimony of Faulkner’s expert, Dr. Gilbert, was not persuasive regarding
the issue of causation since it was based primarily on self-reporting by Faulkner.
Because he found that no injury had been demonstrated, the ALJ found that the
issues of notice, safety violation, benefits pursuant to KRS 342.730, medical
benefits, and temporary total disability were “moot.”
Faulkner then appealed the matter to the Board. It affirmed the
decision of the ALJ, finding that he did not err in dismissing Faulkner’s claims and
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that said dismissal was supported by substantial evidence. The within review
followed.
At the time of his alleged injuries Faulkner was employed in the paint
department at EZ Refuse Hauling Solutions (EZ). He claimed that on June 16,
2020, he entered the oven portion of the painting booth to check on two special
order parts that he had painted. It was the end of the day and the oven had been
turned off. On his way back out of the booth, he slipped and fell, injuring his back,
neck, and elbows. There were no witnesses to the event. Faulkner has indicated
that he told Sterling Bass, his team leader, of the fall.
When he returned to work on June 17, 2020, he became sick and ran
to the bathroom to throw up. He slipped and fell, striking his head. He then
passed out for a period of some two hours. When he awoke, he reported that other
employees were photographing him. He stated that T.J. Ham, his supervisor, sent
him to the first aid room.
Ham has testified that, although he had worked with Faulkner on June
16, 2020, he was unaware of any injury occurring on that date. However, he did
recall that on June 17, 2020, he and Bass went looking for Faulkner after a two-
hour absence from his workstation. They found him in the bathroom, on the toilet,
snoring. Faulkner awoke when Ham took his picture. Although he informed Ham
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that he was sick, he did not mention any fall. Ham escorted him to the first aid
station.
Amanda Mellen, the Environmental Health & Safety Manager for EZ,
was present in the first aid station when Ham and Faulkner arrived. At that time,
she did not know that he had allegedly fallen. However, she did notice that he
appeared to be dozing off while she was checking his vital signs. At some point,
plant manager Rick Reed arrived, and he and Ham agreed that there was
“reasonable suspicion” to believe that Faulkner might be under the influence.
Mellen testified that when a drug test was requested, Faulkner refused until Reed
informed him that if he did not get tested, he would be terminated. Reed and
Mellen then drove him to Harrison Memorial Hospital for testing. They then
transported Faulkner to his home. Based upon the positive results of that test, EZ
terminated his employment.
The records of the Harrison Memorial Hospital indicate that Faulkner
presented to Eugonda Fryman, APRN on June 18, 2020, complaining of back pain.
She ordered x-rays of the lumbar spine and a CT of the cervical spine and head.
The results of this imaging were unremarkable. However, Faulkner returned to her
the following day, reporting lightheadedness. At that time, he reported the June 17
fall and she referred him for a blood pressure evaluation. Following a physical
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residual capacity assessment conducted on September 2, 2020, she concluded that
Faulkner had chronic back pain as the result of an injury at work.
Dr. John Gilbert, M.D., Faulkner’s expert, indicated that he examined
him on October 8, 2020. Based upon the injuries reported by Faulkner, Gilbert
diagnosed him with post-concussion syndrome, memory loss and headaches, spinal
muscle spasms, and cervical radiculopathy. Based on this diagnosis he concluded
that Faulkner had a 43% whole person impairment composed of 18% cervical
radiculopathy, 14% memory impairment and post-concussive syndrome, 13%
lumbar radiculopathy, and 8% thoracic pain/spasms. However, he did not break
down the impairment based on the two alleged injury dates. His conclusion was
that Faulkner was unable to work in any capacity in the foreseeable future.
Gilbert’s findings differed markedly from those of Dr. Gregory
Snider, M.D., EZ’s expert. He examined Faulkner on November 10, 2020, and
received the same descriptions of the two falls. Snider found that there were no
objective medical findings that would support Faulkner’s claim of a work-related
injury on either day.
Dr. Joseph Zerga, M.D., examined Faulkner on December 15, 2020,
on behalf of EZ. He provided Zerga with the same account of the two falls. Zerga
also concluded that there were no objective findings which would enable him to
render a diagnosis. However, he testified that if he gave Faulkner “the benefit of
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the doubt” he would testify that he had a 5% impairment of the cervical spine.
However, he also found that Faulkner would require no restrictions or further
treatment.
As noted by the Board, the burden of proof herein was on Faulkner.
Snawder v. Stice, 576 S.W.2d 276, 279 (Ky. App. 1979). The ALJ concluded,
based upon the evidence, that he had failed to meet that burden. On appeal, the
Board was charged with determining whether the evidence required a different
result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).
However, such a determination is only warranted where the ALJ’s findings are so
unreasonable as to demand reversal. Ira A. Watson Department Store v. Hamilton,
34 S.W.3d 48, 52 (Ky. 2000). The Board, having reviewed the testimony and
other evidence presented to the ALJ, found that reversal was not mandated since
his decision was supported by substantial evidence.
As noted in Pike County Board of Education v. Mills, 260 S.W.3d
366, 368 (Ky. App. 2008), “our standard of review of a decision of the Workers’
Compensation Board ‘is to correct the Board only where the . . . 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).”’
Having reviewed record, the decision of the ALJ, and the Board’s opinion, this
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Court cannot find that the law was improperly applied or that the evidence was
incorrectly considered.
Accordingly, we affirm the decision of the Workers’ Compensation
Board.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE EZ PACK
REFUSE HAULING SOLUTIONS:
Clayton D. Scott
Lexington, Kentucky Donald C. Walton, III
W. Clayton Stone, II
Lexington, Kentucky
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