CHARLES DEWEESE CONSTRUCTION PETITIONER
v.
CHRISTOPHER BRASWELL and HON. JEFF V. LAYSON, ADMINISTRATIVE LAW JUDGE RESPONDENTS
No. 201673243
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
June 14, 2019
APPEAL
FROM HON. JEFF V. LAYSON, ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: HON WHITNEY MOBLEY KUNJOO
COUNSEL FOR RESPONDENT: HON MICHAEL A STEIDL
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
OPINION
ALVEY,
CHAIRMAN.
Charles
Deweese Construction (“Deweese”) appeals from the
Opinion, Award and Order rendered January 28, 2019 by Hon.
Jeff V. Layson, Administrative Law Judge (“ALJ”),
awarding temporary total disability (“TTD”)
benefits, permanent partial disability (“PPD”)
benefits, and medical benefits to Christopher Braswell
(“Braswell”). The ALJ determined Braswell
sustained a work-related low back injury in 2016 as he was
exiting the bed of a dump truck he had just cleaned to begin
his workday. Deweese also appeals from the February 28, 2019
order denying its petition for reconsideration.
On
appeal, Deweese argues the ALJ improperly discounted and
ignored inconsistent post-injury medical records. Deweese
also argues the ALJ improperly relied upon Dr. Margaret
MacGregor’s deficient report, which cannot constitute
substantial evidence. Finally, Deweese argues the ALJ
improperly discounted and ignored Dr. Stephens’ medical
opinion without consideration or analysis. Because the ALJ
performed the appropriate analysis (which he adequately
explained), and his determination is supported by substantial
evidence, we affirm.
Braswell
filed a Form 101 on August 1, 2017 alleging he injured his
low back on June 28, 2016 when he twisted it while working
for Deweese in Franklin, Kentucky. In the Form 104, Braswell
noted his work experience includes driving dump trucks as
well as other types of trucks, team leader of a mine crew,
pipeline construction worker, blaster, and operating a home
remodeling company.
Braswell
testified by deposition on June 20, 2018, and at the hearing
held November 29, 2018. Braswell is a resident of Hartsville,
Tennessee. He was born on October 16, 1981. He completed the
eleventh grade, and later obtained a GED. He has no
specialized vocational training. In addition to driving a
dump truck (which involved hauling dirt, rock and asphalt),
Braswell has operated end loaders, and has worked as a
semi-truck driver.
As a
dump truck driver, Braswell was required to keep the bed
clean due to hauling asphalt. This required him to climb into
the bed by using a ladder. On June 28, 2016, Braswell climbed
into the truck bed to clean it. When he attempted to exit, he
swung his leg over to reach the ladder, and experienced
immediate low back pain at the belt level on the right side.
He later developed pain in the left lower back which radiated
into his left leg. He did not immediately call his supervisor
to report the injury because he believed the pain would
resolve; however, he did advise co-workers of his problems.
He finished his shift, and continued to work for the next few
days despite increased pain. On July 1, 2016, he went to a
chiropractor for an adjustment, which he believed would
relieve his pain. When it did not, he went to the emergency
room where he was given an injection and medication. When his
symptoms did not resolve, he reported the work incident to
his supervisor on July 5, 2016, the day he returned from the
holiday.
Braswell
worked part of a shift on July 5, 2016, and has been unable
to return to Deweese. His only work since that time is mowing
and some yard work. He testified he is unable to return to
construction work, and does not believe he can return to the
type of work performed for Deweese on the date of the
accident. Braswell testified he had no back problems prior to
June 28, 2016, which prevented him from working. Since the
accident, Braswell has had difficulty with deer hunting,
housework, and performing...
