OPINION ENTERED: DECEMBER 31, 2008
CLAIM NO. 07-01510
JASON JACKSON PETITIONER
VS. APPEAL FROM HON. RICHARD M. JOINER,
ADMINISTRATIVE LAW JUDGE
WILLIAMS CATTLE COMPANY, INC.
and HON. RICHARD M. JOINER,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
STIVERS, Member. Jason Jackson (“Jackson”) appeals from a decision rendered by Hon. Richard M. Joiner Administrative Law Judge (“ALJ”) dismissing his workers compensation claim against Williams Cattle Company (“Williams”). Jackson claimed a right knee injury when he was hit by a bull in the course of his employment with Williams on October 13, 2007. The matter was bifurcated with the ALJ first deciding the issue of work-relatedness. The ALJ determined Jackson failed to meet his burden of proving the occurrence of an injury as defined by KRS 342.0011(1). On appeal, Jackson argues the ALJ erred in dismissing his claim.
Jackson born September 1, 1978 has a 10th grade education. Jackson began working for Williams as a laborer in September 2008. His job duties included working with cattle, cutting (castrating bulls) and feeding hay. Jackson claimed a work injury occurred on October 13, 2007 when a charging bull hit him in the right knee. According to Jackson, he and coworkers were cutting bulls. When they let a bull out of the head gate it turned and charged him. Jackson gave slightly different versions of the work injury at his deposition and hearing. At his deposition he testified the incident occurred around midday and he gave notice of the injury to his supervisor Ray Dykes. Jackson stated the next morning his knee was swollen and he went to Ulrich Medical Center to see his family physician, Dr. Stokes. Dr. Stokes prescribed crutches and a knee brace, pain medication, anti-inflammatory medication and scheduled x-rays at Cumberland Valley. Jackson testified he had been to Ulrich Medical Center probably three times since the injury. About a week later, he sought treatment at Marymount Medical Center where he was given pain medication. After that he went to Cumberland Valley Orthopedics where he saw Dr. Huff who wanted to schedule him for an MRI.
Williams took the deposition of Pam Williams Collette, bookkeeper for Williams for 25 years. She testified that when an employee gets hurt on the job he is supposed to report to Ray Dykes, the foreman. She testified Jackson applied for a job on September 11, 2007. According to Collette, she personally talked to him and he told her he had a right knee condition that would require him to be off work for medical care. Collette stated Jackson pulled his pant leg up, and his right knee was swollen twice the size of his other knee. He started working at Williams on September 14, 2007 and his last day was October 15, 2007. Collette testified Jackson never told her he was hit in the right knee by a bull. He never had a conversation with her about an injury. To her knowledge no one in management had ever been told by Jackson he was hurt at work on October 13, 2007.
Ray Dykes, foreman at Williams was deposed. Dykes testified that bulls were cut only on Tuesdays and October 13, 2007 was a Saturday. Dykes stated prior to the injury Jackson told him he had a knee from which fluid would be drawn. According to Dykes, Jackson never told him he was struck by a bull on October 13, 2007.
John Fricke, a co-worker of Jackson’s at Williams, also testified. Fricke described himself as a farmhand. According to Fricke, Jackson had told him he injured his knee, playing football in high school and had to periodically have fluid drawn from this knee. Fricke denied there was an event of a bull chasing Jackson. Fricke testified Jackson wore a law enforcement anklet band while employed at Williams. On the last day of Jackson’s employment at Williams, Fricke took Jackson home around 1:00 p.m. because he was summoned by law enforcement to go home. He stated Jackson did not appear to have been hit in the knee by a bull.
At the hearing, Jackson denied he had problems with his right knee prior to working at Williams. He denied ever having undergone prior medical treatment for his right knee. He again described being injured when the bull was turned loose. Jackson stated the incident occurred late in the day. He testified after the bull hit his knee he jumped on the fence or a gate and his knee went out again. When questioned about bulls only being cut on Tuesdays, he testified they might start cutting bulls on Tuesdays but would finish on a different day. According to Jackson, when the incident occurred, John Fricke came over to him and asked him whether he was all right. He told him he had hurt his knee. Jackson testified he did not finish work that day and called his father who came to his workplace and took him home. He went to Dr. Stokes the next day at eight o'clock in the morning. Jackson stated the following Monday, he talked to Pam in the office and told her about the injury. He described the problems he still has with his knee. He has not worked anywhere since the incident and was no longer under home incarceration.
Though the matter was bifurcated for the ALJ first to determine the issue of work relatedness, the ALJ reviewed the medical evidence contained in the record. A medical report from Dr. C. Todd Stokes dated April 8, 2008 indicates Jackson was first seen on October 15, 2007 for evaluation of swelling and pain in the right knee, and inability to completely straighten his leg. Though not noted by the ALJ in his opinion, Dr. Stokes indicated a history of Jackson being at work and a cow running by him and hitting him in the right knee causing an injury. Dr. Stokes diagnosed a sprained knee and leg, with pain in the limb. He prescribed Motrin and Lortab.
Dr. Robert Johnson evaluated Jackson at the request of his attorney. He received a history of a work-related injury occurring on October 13, 2007 when Jackson was hit in the leg by a bull. Dr. Johnson further took a history of Jackson's complaints, present illness, medical history and work history. He performed a physical evaluation and reviewed x-ray results. Dr. Johnson stated there was significant locking of the right knee in flexion and extension due to a mechanical factor. He felt there was a suggestion of a large bucket handle tear of the medial meniscus. There was instability of the medial collateral ligament complex. Dr. Johnson believed that immediate care of the knee was necessary. An MRI would allow Dr. Huff to be better prepared for what he may encounter. Although he did not believe Jackson was at maximum medical improvement, he rendered an opinion concerning various impairment ratings based on different scenarios and treatment. He felt Jackson had not had an appropriate evaluation, including an MRI evaluation or surgical management. He agreed with Dr. Huff that Jackson should undergo MRI testing. He reiterated time was of the essence.
The ALJ reviewed the lay and medical evidence contained in the record. The ALJ first addressed the issue of whether Jackson sustained an injury as defined by the Workers Compensation Act in KRS 342.0011(1). The ALJ concluded as follows:
Here, the plaintiff's work required him to work cattle, cut bulls, and feed hay. On the date of his injury, a Saturday, Mr. Jackson claims that he was cutting bulls. Everyone else testified that bulls were not cut on Saturdays but were done on Tuesdays. He claims that a bull charged him, hitting him in the side of the knee. Mr. Jackson believed that John Fricke observed this. Mr. Fricke testified that Mr. Jackson never told him that he had injured his right knee while working at the Williams Cattle Company, did not tell him the bull struck him in the right knee while working at Williams Cattle Company and did not observe a bull strike him in the right knee. On Mr. Jackson's last day of employment, Mr. Fricke, he [sic] gave him a ride home. At that time, Mr. Jackson had no appearance of having been hit by a bull at work.
After careful consideration of the testimony herein, the Administrative Law Judge does not find persuasive the testimony of the Plaintiff, that the event occurred as alleged [sic] therefore finds that the plaintiff has not met his burden of proving that his condition is a result of the injury that he has alleged. He does not appear to have sustained an injury as defined by the Act. Snawder vs. Stice, 576 S.W.2d 276 (Ky. App. 1979).
The ALJ next addressed the issue of the allegation of fraud by Williams. He noted the employer had asked him to make findings concerning penalties under KRS 342.990. He stated he did not believe he had jurisdiction to make determinations in this preceding that would invoke the penalties under KRS 342.990. He stated it was within the jurisdiction of the Commissioner to initiate enforcement of civil and criminal penalties imposed under the aforementioned section. He further indicated that he did not believe the employer established fraud under KRS 342.335 stating: “I do not find the testimony presented by the employer to be any more persuasive than that presented by the employee.”
Accordingly, the ALJ dismissed Jackson's claim against Williams, but refused to impose any penalties for fraud. No petitions for reconsideration were filed and Jackson now appeals to this Board.
On appeal Jackson argues rather than dismissing the claim in its entirety, once the ALJ determined he did not find anyone completely credible, he should have looked at the medical evidence Jackson submitted. He points out, Williams filed no medical evidence to support its position Jackson had a problem with his right knee prior to his employment with them. He points to the evidence from Dr. Stokes, indicating that on Monday, October 15 2007, two days after his claimed injury, he complained of right knee swelling and pain as a result of being struck by a cow while working at Williams. He contends that if he had a prior right knee condition, the employer would have submitted medical records from Dr. Ulrich, his family physician for many years, indicating such. Jackson also takes issue with the ALJ's finding he did not establish by a preponderance of the evidence he sustained a work related injury. He submits that once the ALJ determined, based on the deposition testimony, the scales of justice were level, he should have examined the medical evidence which would have tipped the scales in his favor.
Jackson had the burden of proving his knee condition was work related. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Since he was unsuccessful in that burden before the ALJ, the question on appeal is whether the evidence compels a finding in her favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984). Compelling evidence is defined as evidence that is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985).
As fact finder, the ALJ has the sole authority to determine the quality, character, and substance of the evidence. Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the sole authority to determine the weight and inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997). The ALJ, as fact finder, 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 adversary party’s total proof. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal. In order to reverse the decision of the ALJ, there must be no substantial evidence to support his decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Further, an ALJ must be afforded the opportunity to make any corrections, via petition for reconsideration, concerning a misunderstanding of the evidence upon which the fact finder relies. Accordingly, absent a petition for reconsideration, the issue is narrowed to whether the ALJ’s decision is supported by substantial evidence in the record. Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky.App. 2000).
Clearly the ALJ’s decision to dismiss Jackson's claim is supported by substantial evidence in the record. The ALJ considered the deposition testimony of the lay witnesses, finding none of them particularly credible. It was within his province, as fact finder, to determine Jackson's knee condition was not related to his work injury based on his lack of credibility. Evidence from an interested party or witness, even where uncontroverted, may be rejected by the ALJ. Bullock v. Gay, 296 Ky. 489, 177 S.W.2d 883 (1944). While the matter was bifurcated on the issue of work relatedness, the ALJ did review the medical evidence contained in the record. Any disagreement with the ALJ concerning his perception of the facts should have been brought to the ALJ’s attention by a petition for reconsideration. Though there may have been evidence in the record to support a determination that Jackson's knee condition was related to his work with Williams, it was within the ALJ’s fact finding authority to reject that testimony. Magic Coal Co. v. Fox, supra.
Accordingly, the decision of the Administrative Law Judge is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON KY 40741
COUNSEL FOR RESPONDENT:
HON DENISE KIRK ASH
P O BOX 34125
LEXINGTON KY 40508
ADMINISTRATIVE LAW JUDGE:
HON RICHARD M JOINER
145 E CENTER ST
MADISONVILLE KY 42431
