OPINION ENTERED: March 13, 2009
CLAIM NO. 06-01623
DONNIE R. HUFF PETITIONER
VS. APPEAL FROM HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE
TIM GABBARD & DENNIS HACKER
D/B/A G & H FARMS; UEF
and HON J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Donnie R. Huff (“Huff”) seeks review of a decision rendered November 17, 2008 by Hon. J. Landon Overfield, Administrative Law Judge, dismissing his claim for benefits against Tim Gabbard (“Gabbard”) and Dennis Hacker (“Hacker”), d/b/a G & H Farms, and the Uninsured Employers’ Fund (“UEF”). In so ruling, the ALJ determined Huff was not an employee of Gabbard, Hacker or G & H Farms at the time of his injury. Neither party filed a petition for reconsideration before the ALJ following the decision, pursuant to KRS 342.281.
On appeal, Huff argues it was error for the ALJ to determine there was no employment relationship at the time of the injury. Huff contends that in light of the evidence of record supporting his assertions he was an employee, the decision of the ALJ was arbitrary, capricious and an abuse of discretion. We disagree.
We begin by noting that in the absence of a petition for reconsideration, on questions of fact, the Board is limited on review to a determination of whether there is substantial evidence contained in the record to support the outcome selected by the ALJ. Stated otherwise, inadequate, and incomplete, or even inaccurate fact finding on the part of an ALJ will not justify reversal or remand if there is substantial evidence in the record that supports the ultimate conclusion. 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).
Moreover, authority establishes that Huff, as the claimant in a workers’ compensation case, bore the burden of proving each of the essential elements of his cause of action before the ALJ, including the fact that an employment relationship existed between the parties at the time Huff was injured. Snawder v. Stice, 576 S.W.2d 276 (Ky.App. 1979). Since Huff was unsuccessful in his burden, the question on appeal is whether the evidence is so overwhelming, upon consideration of the record as a whole, as to compel 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 weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/ Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d (Ky. 1979). The ALJ 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. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
On September 23, 2005, Huff sustained serious lacerations to his left hand while using a chainsaw to cut down a tree. Huff testified he was an employee of Gabbard and Hacker d/b/a G & H Farms when injured, and he had been logging for those parties for approximately two to three weeks, earning $100.00 dollars a day. Huff stated he was hired by Gabbard for the job.
Huff testified that at the time of the accident Hacker was pulling out trees with a dozer and Gabbard was sawing them up for hauling. Huff stated meanwhile he was working with Johnny Bishop (“Bishop”), who was responsible for hooking cables onto downed trees while he operated a chainsaw owned by his employers. According to Huff, Gabbard and Hacker would decide which trees would be cut and direct the other men as to what to do. Huff testified he did not own the chainsaw or any of the other equipment allegedly being use when the accident occurred. Huff further stated he did not take any firewood from the site.
On the day of the injury, Huff was treated at the emergency room at both Manchester Memorial Hospital and the University of Louisville hospital. Huff admitted declaring at both hospitals that he was unemployed at the time of the event.
Both Gabbard and Hacker testified that Huff was not working for them on the date of the accident. Gabbard stated he had previously swapped Huff a pony worth $300.00 in exchange for five loads of firewood. Gabbard testified that otherwise, he had never had a business relationship with Huff. Hacker admitted he had previously hired Huff to haul some logs for him, for which he was paid $100.00 per load. Hacker further testified that after the job hauling the logs had ended, he had seen Huff on several occasions cutting firewood on the same property. Hacker confirmed he had been present and was cutting timber near the site of the accident on September 23, 2005, when he noticed Huff and another person cutting firewood in an area below where he was working. Hacker stated he later proceeded to the area, where he discovered Huff injured and bleeding. Hacker testified he attempted to provide assistance by applying a tourniquet to Huff’s arm, while the other man that Huff was with went to call an ambulance. Hacker stated he stayed with Huff until the ambulance arrived. Hacker denied he had ever hired Bishop to work for him. Bishop was not called as a witness in the proceedings before the ALJ.
In the decision on the merits dismissing Huff’s case, the ALJ stated in relevant part as follows:
The most hotly contested issue in this claim is whether or not Plaintiff was employed by Defendant Employer at the time of his injury. In all contested issues in a workers’ compensation claim, plaintiff has the burden of proof and the risk of non-persuasion. Plaintiff’s presentation at his hearing was not convincing and was not persuasive.
. . . .
The ALJ was of the distinct impression, while observing Plaintiff testify, that Plaintiff would say whatever he thought necessary in order to recover. Plaintiff’s testimony is also contradicted by several other parts of the record and the fact that he pronounced himself at the emergency room to be unemployed is damaging to his cause. Plaintiff simply has not sustained the burden of proving to the satisfaction of the trier of fact that he was an employee of the Defendant Employer when he was injured on September 23, 2005.
The above ruling is supported by substantial evidence in the form of Gabbard and Hacker’s testimony that Huff was not their employee when injured, as well as Huff’s own admission he informed both hospitals he was unemployed when seeking treatment on the day of the accident. The fact that Huff alleged the chainsaw he was using at the time of the accident was owned by Gabbard or Hacker does not compel a result different than that reached by the ALJ as Huff so asserts. As pointed out above, the ALJ as fact finder is free to pick and choose from the evidence whom and what to believe. Copar, Inc. v. Rogers, 127 S.W.3d 554, 561 (Ky. 2003); Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977). In that the ALJ expressly stated he found Huff’s testimony to have little to no credibility, he was free to reject any and all of the claimant’s testimony as untruthful, including those statements regarding ownership of the equipment involved in the accident. Halls Hardwood Floor Co. v. Stapleton, 16 S.W. 3d 327 (Ky. App. 2000); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). In that the ALJ’s decision with regard to Huff’s lack of employment relationship with Gabbard, Hacker or G & H Farms at the time of his injury is supported by substantial evidence of record, we may not disturb the ALJ’s opinion on appeal. See KRS 342.285; Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Accordingly, the decision rendered November 17, 2008 by Hon. J. Landon Overfield, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON RUSSELL MARICLE
116 LAWYER ST STE 1
MANCHESTER KY 40962
COUNSEL FOR RESPONDENTS:
HON HENLEY R MCINTOSH
PO BOX 848
BOONEVILLE KY 41314
COUNSEL FOR RESPONDENT
UNINSURED EMPLOYERS’ FUND:
HON C D BATSON
1024 CAPITAL CENTER DR STE 200
FRANKFORT KY 40601
ADMINISTRATIVE LAW JUDGE:
HON J LANDON OVERFIELD
110 NORTH WATER ST
HENDERSON KY 42420
