Opinion
NO. 2015-CA-000045-WC
01-15-2016
PASCAL NDIKUMANA APPELLANT v. PERDUE FARMS, INC.; JANE RICE WILLIAMS, ADMISTRATIVE LAW JUDGE; KENTUCKY WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Benjamin D. Crocker Bowling Green, Kentucky BRIEF FOR APPELLEE: W. Greg Harvey Bowling Green, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-00460 OPINION
AFFIRMING BEFORE: CLAYTON, D. LAMBERT AND J. LAMBERT, JUDGES. D. LAMBERT, JUDGE: This matter is before the Court on Appeal from a decision rendered by the Kentucky Board of Workers' Claims (hereinafter, "the Board"). The ruling entered by the Board affirmed in part, the findings of the Administrative Law Judge ("ALJ") which awarded permanent partial disability benefits. The same opinion by the Board also reversed the ALJ, in part, as it related to the award of medical benefits. Finding no error, we affirm.
Factual and Procedural History
The claimant and plaintiff below is Pascal Ndikumana, a native of the Republic of Burundi, who natively speaks French and does not speak English fluently. He was assisted at every stage of the proceedings below by an interpreter. On October 1, 2010, Ndikumana was employed by Perdue Farms, Inc. (hereinafter, "Perdue"), at a chicken processing facility. He was injured when several containers of chicken, totaling approximately one hundred pounds in weight, fell from a shelf, landing on him. He filed a workers' compensation claim on April 11, 2012, alleging injuries to his neck, back, right arm, and elbow. His employer denied the claim, citing questions about the extent and duration of the injuries, and whether they were work-related.
Ndikumana and Perdue participated in a Benefit Review Conference and subsequent hearing in July of 2014. The result was an identification of three contested issues which were the subject of the ALJ's order. Those three issues were: 1) whether Ndikumana was entitled to benefits for permanent partial disability ("PPD") pursuant to KRS 342.730 with multipliers; 2) whether Ndikumana was entitled to temporary total disability ("TTD") benefits; and 3) whether Ndikumana was entitled to unpaid or contested medical benefits.
The ALJ provided a thorough summary of the evidence in the Opinion, Award and Order rendered on September 9, 2014. That order awarded PPD benefits, and medical expenses reasonably required for the cure or relief of the work-related injury. Ndikumana appealed the ruling to the Board. In an opinion entered on December 12, 2014, the Board affirmed the ALJ's ruling as it related to the causation of the injuries and the application of the statutory multiplier, but reversed and remanded the award of medical expenses for further proceedings.
This appeal followed. Ndikumana argues before this Court that the ALJ, and the Board through its affirmation, erred in two ways. First, the ALJ erred in that arriving at a ruling required the ALJ ignore the evidence of Ndikumana's right arm injury. Second, the ALJ erred in finding Ndikumana had the physical capacity to return to the same type of work.
Analysis
I. Standard of Review
The standard of appellate review of an administrative decision is a very deferential one. "On appeal, our standard of review of a decision of the Workers' Compensation Board 'is to correct the Board only where the... Court perceives 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.'" Pike County Bd. of Educ. v. Mills, 260 S.W.3d 366, 368 (Ky.App. 2008) (quoting Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1982). A claimant bears the burden of proving every element of a worker's compensation claim. Id. (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App 1984).
Both of the errors alleged by Ndikumana are factual in nature. When reviewing a workers' compensation claim, KRS 342.285 designates the ALJ as the fact-finder. KRS 342.285(1). This provision has been construed to grant the ALJ "...the sole discretion to determine the character, quality, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence." Bowerman v. Black Equipment Co., 297 S.W.3d 858, 866 (Ky.App. 2009). Though KRS 342.285(2)(d) establishes a clear error standard of review for findings of facts, the Board should not "...substitute its judgment for that of the [ALJ] as to the weight of evidence in questions of fact[.]" Id. (quoting Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky.App. 1982). "In short, appellate courts may not second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion." Id. (citing Medley v. Bd. of Educ., Shelby County, 168 S.W.3d 398, 406 (Ky.App. 2004). "Although a party may note evidence which would have supported a different conclusion than that which the ALJ reached, such evidence is not an adequate basis for reversal on appeal." Kroger Ltd. Partnership v. Cab. for Health and Family Services, Commonwealth of Kentucky, 174 S.W.3d 516, 518 (Ky.App. 2005).
II. The ALJ Did Not Commit Error in Reaching the Factual Findings Below.
The ALJ thoroughly recited the evidence presented in the record. This included not only the testimony of Ndikumana himself, but also expert medical testimony from James Farrage, M.D., and Dennis O'Keefe, M.D. The ALJ also summarized Ndikumana's employment record subsequent to his termination by Perdue, and video footage showing Ndikumana driving tomato stakes into the ground with his right hand, picking up his children, driving, and closing doors.
An ALJ is entitled to believe or disbelieve all or parts of the evidence presented for review. Kroger Ltd. Partnership, supra.; Caudill v. Maloney's Discount Stores, 560 S.W.2d 15 (Ky. 1977). The ALJ's order noted that while Ndikumana characterized his right arm as being "paralyzed," that assertion was refuted by the video footage. The ALJ's order also noted from the testimony of Ndikumana's former supervisor at Perdue that he had observed Ndikumana working without apparent physical difficulty subsequent to the accident. The ALJ also highlighted the reasoning why she found Dr. O'Keefe's testimony credible over Dr. Farrage's testimony.
The ALJ's conclusions are clearly stated and are made with sufficient specificity to permit a meaningful administrative or judicial review. Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973). The Board found no error in the ALJ's factual findings, using the same standard of review this Court now applies.
Conclusion
The errors alleged by Ndikumana are, in essence, complaints that the ALJ afforded opposing evidence far greater weight than his own. Accurate though this assessment may be, weighing evidence is within the discretion vested in the ALJ by KRS 342.285(1), and is not error. The Board, after its review, reached the same conclusion.
We therefore affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Benjamin D. Crocker
Bowling Green, Kentucky BRIEF FOR APPELLEE: W. Greg Harvey
Bowling Green, Kentucky