Batista v. Linens 'n Things, No. 2008-CA-001572-WC (Ky. App. 3/6/2009)
| Decision Date | 06 March 2009 |
| Docket Number | No. 2008-CA-001572-WC.,2008-CA-001572-WC. |
| Parties | Robin M. BATISTA, Appellant v. Linens 'N THINGS, Hon. James Kerr, Administrative Law Judge; and The Workers' Compensation Board, Appellees. |
| Court | Kentucky Court of Appeals |
Robin Batista, Pro Se, Elizabethtown, Kentucky, Brief for Appellant.
Jo Alice Van Nagell, Lori V. Daniel, Lexington, Kentucky, Brief for Appellees.
Before: CAPERTON, THOMPSON and WINE, Judges.
Not to be Published
Appellant, Robin Batista (Batista), appeals the decision of the Workers' Compensation Board affirming the March 14, 2008, decision of ALJ James Kerr in favor of Appellee, Linens 'n Things. Having reviewed the record, the arguments of the parties and the applicable law, we hereby affirm.
In the claim filed herein, Batista allegedly sustained a lifting injury to her right shoulder on February 25, 2006, while working at Linens 'n Things. The claim was bifurcated on the issue of compensability. At the final hearing before the ALJ, Batista clarified the nature of her injury and stipulated that her claim was for a right shoulder injury only.1
Subsequent to the final hearing and the submission of briefs, the ALJ entered an opinion and order on March 14, 2008, dismissing the claim, finding that Batista failed to meet her burden of proving that she had sustained a work-related injury. This rendered other issues moot, and resulted in the dismissal of the claim.2 Batista did not file a petition for reconsideration.3 Batista appealed to the Board.
On appeal to the Board, Batista presented two arguments, namely, that she had no pre-existing problems with her right shoulder and that the medical evidence she presented compelled a finding different from that of the ALJ. The ALJ's dismissal was upheld by the Board on July 22, 2008.
On appeal to this Court, Batista presents new arguments, which were not argued below either to the ALJ or to the Board on appeal. Now, Batista asserts that the ALJ and the Board erred as a matter of law by "denying reasonable and necessary medical treatment and income benefits". More specifically, Batista asserts that she was entitled to medical benefits even if her condition was only temporary and further, that even if she suffered symptoms that were only temporary in nature, she nevertheless sustained an "injury" as that term is defined by KRS 342.0011(1).
First, we note that our function, in reviewing a decision of the Board, is to correct the Board only where this Court perceives that 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 Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Regardless, in the matter sub judice, we need not even reach the merits of the Board's decision, as Batista failed to preserve the issue of entitlement to benefits for a temporary condition for our review. As this issue was not preserved below, it cannot be presented now for the first time. See Breeding v. Colonial Coal Company, 975 S.W.2d 914, 916 (Ky. 1998), citing Smith v. Dixie Fuel Co., 900 S.W.2d 609 (Ky. 1995) and Eaton Axle Corporation v. Nally, 688 S.W.2d 334 (Ky. 1985).
For the record, we note that even if Batista had preserved these issues for appeal, we find insufficient evidence in the record to overturn the decision of the Board in affirming the ALJ. Certainly, it is well-established in this Commonwealth that the ALJ, as the finder of fact, has the sole discretion to determine the quality, character, and weight of the evidence presented. Paramount Foods v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). After an ALJ's decision has been rendered, a reviewing body may only overturn that decision in the absence of substantial evidence to support it. Special Fund v. Francis, 808 S.W.2d 641 (Ky. 1986).
In the matter sub judice, the ALJ reviewed the evidence of record and determined that Batista did not sustain a work-related injury as that term is defined by KRS 342.011(1). Having reviewed the record, we cannot conclude that the ALJ abused his discretion in finding as he did and in choosing to rely upon the opinion of Drs. Moskal and Kline that Batista had not experienced a work-related harmful...
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