RUMPKE OF KENTUCKY, INC. v. DONALD LEON GRIBBIN; HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: December 12, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002611-WC
RUMPKE OF KENTUCKY, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-99-86998
v.
DONALD LEON GRIBBIN;
HON. J. KEVIN KING,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BAKER AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Rumpke of Kentucky, Inc. has petitioned for
review of an opinion and order of the Workers’ Compensation
Board entered on November 27, 2002, which reversed the
Administrative Law Judge’s determination that Donald Leon
Gribbin had failed to establish a prima facie case for the
reopening of his claim pursuant to KRS1 342.125.
The Board
remanded the case to the ALJ for a “reopening on the merits.”
Having concluded that the Board has not overlooked or
misconstrued controlling statutes or precedent or committed an
error in assessing the evidence so flagrant as to cause gross
injustice, we affirm.
Gribbin began working for Rumpke in September 1998, as
a heavy equipment operator and tractor-trailer driver.
On April
7, 1999, Gribbin was injured during the course of his employment
when his foot slipped off of a ladder located at the rear of a
tanker trailer.2
and hip.
Gribbin sustained injuries to his lower back
As a result of these injuries, Gribbin subsequently
underwent surgery for a subluxation of his left hip.
On July 2, 1999, Gribbin filed an application for
resolution of injury claim with the Department of Workers’
Claims.
On November 3, 2000, the ALJ approved a settlement
agreement between Gribbin and Rumpke.
The diagnosis on the
settlement agreement stated “[c]hronic progressive low back
pain, subluxation of the left hip.”
Under the terms of the
settlement agreement, Gribbin was entitled to a lump-sum payment
of $2,479.57, which was based on a 3.75% permanent disability
rating.
1
This amount was in addition to payments of $25,544.30
Kentucky Revised Statutes.
2
Gribbin’s injury occurred while he was working for Rumpke at a landfill
located in Hardin County, Kentucky.
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in medical expenses and $4,777.00 in temporary total disability
(TTD) benefits that Gribbin had already received.
On June 14, 2002, Gribbin filed a motion to reopen
pursuant to KRS 342.125.
In support of his motion to reopen,
Gribbin attached an affidavit wherein he stated that he had
experienced “a sharp increase in the level of symptoms in my low
back[.]”
Gribbin further stated that he had undergone surgery
to repair a ruptured disk in his back, based upon the
recommendation of Dr. Rolando Cheng.
Finally, Gribbin stated
that he had not sustained any new injuries to his back since the
settlement of his claim, and that he believed his additional
complications were “directly related” to the work-related injury
he suffered on April 7, 1999.
In addition to his affidavit, Gribbin attached several
medical records related to his diagnosis and treatment following
the exacerbation of his symptoms.
Gribbin sought payment for
his additional medical expenses, an award of TTD benefits, and
an increased permanent partial disability award.
On July 18, 2002, Rumpke filed a response objecting to
Gribbin’s motion to reopen.
Rumpke argued that “there [was] no
medical evidence that [Gribbin] [had any] increase in
occupational disability due to the work injury in question nor
[was] there evidence that the alleged total disability was
caused by a ‘worsening of [Gribbin’s] condition’ which is a
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necessary criteria pursuant to [KRS] 342.125(1)(d).”
The ALJ
agreed with Rumpke and denied Gribbin’s motion to reopen on July
18, 2002.
On August 21, 2002, the ALJ denied Gribbin’s petition
for reconsideration.
Gribbin appealed to the Board, which reversed the
ALJ’s denial of Gribbin’s motion to reopen in an opinion and
order entered on November 27, 2002.
The Board ruled that “the
ALJ erred as a matter of law in finding Gribbin did not present
a prima facie showing of work-relatedness.”
Consequently, the
Board remanded the matter “for a reopening on the merits.”
This
appeal followed.
Rumpke’s sole claim of error on appeal is that the
Board improperly substituted its evaluation of the evidence for
that of the fact-finder, i.e., the ALJ.
In particular, Rumpke
argues that Gribbin “failed to put forth a prima facie case
[before the ALJ] which would permit a reopening based upon the
medical evidence submitted and the Board unilaterally
substituted its judgment in place of the ALJ.”
We disagree with
Rumpke and hold that the Board did not err by ordering a
reopening of Gribbin’s claim.
This Court will correct a decision of the Board only
when we perceive that “the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in
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assessing the evidence so flagrant as to cause gross injustice.”3
In Stambaugh v. Cedar Creek Mining Co.,4 the former Court of
Appeals explained the burden of a party seeking to reopen his
claim pursuant to KRS 342.125:
[O]n an application to reopen[,] [the
movant] should be required to make a
reasonable prima facie preliminary showing
of the existence of a substantial
possibility of the presence of one or more
of the prescribed conditions that warrant a
change in the [original] decision before his
adversary is put to the additional expense
of relitigation.
In construing this language from Stambaugh, the Board
in the case sub judice stated the question as follows:
Generally speaking, if the information
submitted by the moving party is taken as
true, would it justify reopening upon one of
the grounds in KRS 342.125? . . .
Fundamentally, the question is, could a
reasonable ALJ justify a reopening pursuant
to KRS 342.125 if the moving party’s
supporting documentation is believed
totally[?]
We agree with the Board’s framing of the question on a motion to
reopen and hold that, based upon the evidence submitted by
Gribbin, the Board did not assess “the evidence so flagrant as
to cause gross injustice.”
As we mentioned previously, Gribbin attached several
medical records in support of his motion to reopen.
A report
3
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
4
Ky., 488 S.W.2d 681, 682 (1972).
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from Dr. Amjad M. Faheem dated April 18, 2002, noted that
Gribbin had a history of problems dating back to his injury in
April 1999, at the L4-5 level in his back.
Dr. Faheem’s report
also noted that Gribbin had “moderate muscle spasms and
tenderness” in that same L4-5 level when Gribbin reported to the
emergency room on April 18, 2002.
A radiology report conducted
that same day indicated that Gribbin had a “moderate-sized disc
extrusion noted centrally at L4-5.”
Further, a report from Dr.
Rolando Cheng dated April 22, 2002, diagnosed Gribbin as having
a “mild central disc herniation at L4-L5 level.”
Finally, Dr.
Cheng reported that he performed a “lumbar laminectomy of L4-L5”
on Gribbin’s back in an attempt to alleviate his symptoms.
Therefore, based upon the evidence that was submitted
to the ALJ, we conclude that the Board was correct in
determining that Gribbin had presented a prima facie case for
reopening under KRS 342.125.
Gribbin proffered sufficient
“objective medical evidence of worsening”5 of his condition to
warrant a finding that there was a “substantial possibility”
that Gribbin would be entitled to additional benefits under KRS
342.125.
Accordingly, the Board did not err by reversing the
ALJ and ordering a reopening on the merits.
5
Under KRS 342.125, an injury claim may be reopened if, inter alia, there has
been a “[c]hange of disability as shown by objective medical evidence of
worsening or improvement of impairment due to a condition caused by the injury
since the date of the award or order.”
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Rumpke places a great deal of emphasis on the fact
that when Gribbin went to the emergency room on April 17, 2002,
he told hospital personnel that his back pain began “since
getting off of his lawn mower” the previous day.
Rumpke
contends that based on Gribbin’s statement, his symptoms were
the result of a new injury and the ALJ therefore correctly
denied his motion to reopen.
We first note that there is
nothing in this statement alone indicating that Gribbin’s
getting off of his lawnmower caused the exacerbation of his
symptoms.
Moreover, as Stambaugh makes clear, when deciding
initially whether the movant is entitled to a reopening, the
determination does not involve weighing the conflicting
evidence.
Rather, the ALJ merely looks to whether the movant
has shown to a “substantial possibility” that he will be
entitled to additional benefits under KRS 342.125.
at bar, Gribbin satisfied this threshold inquiry.
In the case
Therefore,
the Board correctly determined that Gribbin was entitled to a
reopening on the merits.
Based on the foregoing, the opinion and order of the
Board reversing the ALJ and ordering a reopening of Gribbin’s
claim on the merits is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
P. Kevin Moore
Lexington, Kentucky
BRIEF FOR APPELLEE, DONALD
GRIBBIN:
Ben T. Haydon, Jr.
Bardstown, Kentucky
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