Daniel v. Armco Steel Co., L.P.

• Decision Date: 13 October 1995
• Docket Number: No. 94-CA-001819-WC,94-CA-001819-WC
• Citation: 913 S.W.2d 797
• Parties: Jackie L. DANIEL, Appellant, v. ARMCO STEEL COMPANY, L.P.; Robert L. Whittaker, Acting Director of Special Fund; Hon. Denis S. Kline, Administrative Law Judge; and Workers' Compensation Board, Appellees.
• Court: Kentucky Court of Appeals

Page 797

913 S.W.2d 797

Jackie L. DANIEL, Appellant, v. ARMCO STEEL COMPANY, L.P.; Robert L. Whittaker, Acting Director of Special Fund; Hon. Denis S. Kline Administrative Law Judge; and Workers' Compensation Board, Appellees.

No. 94-CA-001819-WC.

Court of Appeals of Kentucky.

Oct. 13, 1995.

Rehearing Denied Dec. 22, 1995.

Robert L. Templeton, Ashland, for Appellant.

David R. Allen, Louisville, for Appellee, Special Fund.

James D. Keffer, Vanantwerp, Monge, Jones & Edwards, Ashland, for Appellee, Armco Steel Co., L.P.

Before COMBS, JOHNSON and SCHRODER, JJ.

JOHNSON, Judge:

Jackie L. Daniel (Daniel) petitions for review of an opinion of the Workers' Compensation Board (Board) affirming the decision of Administrative Law Judge (ALJ) Denis S. Kline. ALJ Kline found Daniel to be 80 percent disabled with 15 percent attributed to the residual effects of a non-compensable back injury, leaving a net permanent partial disability award of 65 percent. In his petition Daniel once again raises one of the issues presented below, i.e., that the evidence compels a finding that his back injury is work-related. Having reviewed the record and applicable law, we affirm the Board but remand the claim to the ALJ for determination of the employer's costs and attorney's fees necessitated by this appeal.

As stated in Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-688 (1992), the function of the Court of Appeals in reviewing decisions of the Workers' Compensation Board is to correct the Board only when we perceive that the Board has overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice. Finding neither to have occurred here, we routinely affirm. While the conclusion reached by the ALJ and affirmed by the Board is not the only one possible, it is clearly supported by substantial evidence. The ALJ in a thorough opinion carefully considered the evidence of record, as did the Board in affirming the decision. It would serve no purpose, and would be an abuse of power, for us as an appellate body twice removed from the fact-finding stage to substitute our judgment for that of the designated trier-of-fact when the evidence is so closely divided. Any attempt on our part to disturb the findings below, no matter how well-intentioned, would be as likely to create injustice as to remedy it. Ingrained in our jurisprudence is the realization that courts of review are simply in no position to second-guess the trier-of-fact on close factual issues.

We have no doubt that Daniel sincerely feels the wrong result was reached below, but we cannot conclude that there is a reasonable basis for an appeal. The law is abundantly clear that review by this Court is limited to those situations previously described. Western Baptist Hospital, supra at 688. In its brief before the Board, the employer advised that further appeal would result in a request for costs and attorney's fees. The employer before this Court has requested costs and attorney's fees and we think under the precedent of Western Baptist Hospital and Peabody Coal Co. v. Goforth, Ky., 857 S.W.2d 167 (1993), it is entitled to them.

As to the substantive issue raised in this appeal, we feel we cannot improve upon the Board's opinion and adopt the relevant text as follows:

BEFORE: ANGELUCCI, Chairman, and GREATHOUSE, Board Member.

ANGELUCCI, CHAIRMAN. Jackie L. Daniel ("Daniel") appeals from an Opinion and Award rendered September 24, 1993, by Administrative Law Judge Denis S. Kline ("ALJ"), and from an October 25, 1993 Order overruling his petition for reconsideration. Daniel contends that the evidence compels a finding that he suffered a work-related injury to his back and further that he is totally disabled.

Daniel, born November 12, 1950, has a high school education and began his employment with Armco Steel Company, L.P. ("Armco"), in May 1971. The claim sub judice was based on both a back injury and amputation of a finger.

Armco's clinical record reveals that Daniel had back complaints dating back to 1975. On February 18, 1990, he injured his back playing racquet ball (sic) and missed two days of work. He described this as a nagging backache to the upper right part of his back. Petitioner claims that on March 19, 1990, he suffered a low back injury while bending over and pulling unit cuts. He described this injury as different from the racquet ball (sic) pain, involving pain radiating down to his left leg.

* * * * * *

Regarding the back injury, Daniel was seen by Drs. John A. Bond, Jose L. Rodriguez, and Robert P. Goodman. The histories these physicians received and documents completed regarding this injury shed light on the issue of work-relatedness.

For example, a first notice of claim, sickness and accident benefits form was completed April 4, 1990, by petitioner and Drs. Bond and Rodriguez. They all responded negatively to, "Do you claim this disability is related to your work?" and "Is condition due to injury or sickness arising out of patient's employment?"

Dr. Bond examined Daniel on March 20, 1990, for neck and back pain radiating to the left leg. He noted a history of pain in the past, and his handwritten notes indicate that Daniel hurt it approximately a month ago but the pain had not begun until March 19, 1990. An office note from April 3, 1990[,] shows that the patient or his wife telephoned to indicate that he had been injured on March 19, 1990.

Dr. Rodriguez, a neurosurgeon, evaluated the claimant on April 4, 1990, upon referral from Dr. Bond. He received a history of a March 19, 1990 injury as well as a severe back injury from about a year ago when Daniel lifted between 100 and 125 pounds. This corresponds with an April 26, 1989 wheelbarrow lifting incident, which is documented in Dr. Bond's office notes and Armco's clinical record. An April 5, 1990 discharge summary from King's Daughters' Medical Center reveals that Dr. Rodriguez received a history of back pain dating back several weeks after moving heavy objects and playing racquet ball (sic). The claimant also informed Dr. Rodriguez of the wheelbarrow incident and the development of increased back pain after...