City of Independence v. Phillip Dunford

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 18, 2016
NOT TO BE PUBLISHED
WM"
,SuprrItir Court of
2015-SC-000202-WC
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a827 S.W.2d 685, 687 (Ky. 1992).
Further, the function of the Court of Appeals 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 Id. at 687-88. Finally, review by this
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 Id. The ALJ, as fact-finder, has the sole discretion
to judge the credibility of testimony and weight of evidence. Paramount Foods,
Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).
Independence's first argument is that the Board erred in its second
opinion by stating that on remand the ALJ could rely on Dunford's deposition
testimony and a certain letter and testimony by Dr. Kruer to find that Dunford
suffered a work-related injury which merits an impairment rating.
Independence states that by specifically highlighting this evidence, the Board
contradicted its first opinion which stated that the ALJ should review Dr.
Kruer's deposition testimony and Dr. Bender's records to determine whether
any of Dunford's impairment rating was caused by pre-existing back injuries.
The first opinion also noted that only Dr. Bender's opinion touched on whether
Dunford had an active pre-existing impairment. We disagree.
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The Board's first opinion remanded the matter to the ALJ for him to
review the evidence which supports Independence's argument that Dunford
had an active pre-existing impairment when he suffered the work-related
injury. In so doing, the Board pointed out certain evidence that the ALJ
needed to review and analyze in his new opinion, but did not mandate the ALJ
reach a certain result. In the Board's second opinion, it noted that the ALJ
again failed to provide an adequate review of the evidence, but again did not
order that the A1.0 make a certain decision. On remand, the ALJ is free to find
that Dunford did or did not have an active pre-existing impairment. The key
will be for the ALJ to provide a detailed analysis of the evidence in the record
and an explanation for his decision.
Independence's other argument is that the Court of Appeals erred by
making the following statement, "Even if, upon remand, Dunford is found to
have a pre-existing condition, he would still be entitled to some future medical
benefits." The Court of Appeals noted that this issue was found to be moot by
the Board because it was the law of the case that Dunford did in fact suffer a
work-related injury. Independence objects to the use of the word "would"
because if the AU finds on remand that all of Dunford's current impairment
rating is related to an active pre-existing condition, there could not be an
award of future medical benefits. But as long as Dunford has a disability from
the work-related injury he is entitled to medical treatments as warranted by
the evidence. KRS 342.020(1). Furthermore "disability exists for the purposes
of KRS 342.020(1) for so long as a work-related injury causes impairment,
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regardless of whether the impairment rises to a level that it warrants a
permanent impairment rating, permanent disability rating, or permanent
income benefits." FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 318-319
(Ky. 2007). On remand, we trust that the ALJ will review the record and base
his decision regarding an award of future medical benefits on evidence of
substance.
Thus, for the above stated reasons, we affirm the decision of the Court of
Appeals.
All sitting. Minton, C.J.; Cunningham, Keller, and Venters, JJ., concur.
Hughes, Noble, and Wright, JJ., concurs in result only.
COUNSEL FOR APPELLANT,
CITY OF INDEPENDENCE:
James Gordon Fogle
Derek Scott Monzon
COUNSEL FOR APPELLEE,
PHILLIP DUNFORD:
Larry Steven Shelton
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