No. 00-78179 (2002). United Parcel Service v. Gough.

• Case Date: September 11, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-78179 (2002). United Parcel Service v. Gough UNITED PARCEL SERVICE PETITIONER vs. JEANETTE GOUGH and HON. RONALD E. JOHNSON, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: September 11, 2002 CLAIM NO. 00-78179APPEAL FROM HON. RONALD E. JOHNSON, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. STANLEY, Member. United Parcel Service ("UPS") appeals from a decision rendered April 29, 2002 by Hon. Ronald E. Johnson, Administrative Law Judge ("ALJ"), granting the respondent, Jeanette Gough ("Gough"), an award of total and permanent occupational disability benefits. UPS also appeals from an order issued June 3, 2002 summarily overruling its petition for reconsideration. On appeal, UPS raises two issues. First, UPS argues that it was error for the ALJ to overrule its petition for reconsideration without clearly setting forth the factual basis relied upon in granting Gough permanent and total disability benefits. In making this argument, UPS asserts the ALJ's fact-findings are deficient as a matter of law. Alternatively, UPS asserts the ALJ's ruling finding Gough to be 100% occupationally disabled was error and that his ruling represents an abuse of discretion. After thoroughly reviewing the evidence of record and the applicable law, we find no merit in these arguments and, therefore, affirm. Gough was born on March 15, 1957 and is a resident of Louisville, Kentucky. She has a ninth grade education and no specialized or vocational job training. Gough's past relevant work experience consists of employment as a self-employed auto mechanic, a tow truck driver, a laborer for a landscaping company, and a truck driver delivering fish to a pay lake. Gough entered the employ of UPS in April 1999. In that job, she worked unloading boxes from trucks and placing them on conveyors. Gough suffered a work-related injury on May 30, 2000 while employed at UPS. On that occasion, while moving a box onto a conveyor, another box fell from the top of the load, striking her on the back of the head and landing on her foot. The box weighed seventy pounds or more and Gough described it "like being hit with a bat." Gough testified she was immediately "dazed" by the impact. She experienced pain behind her right ear, a major headache, nausea, and pain in her left big toe. She remained dizzy for an extended period of time after the accident to the point that she fell backwards against the wall of the truck she was unloading. After reporting the injury, she was immediately sent to Caritas Medical Center by her employer. By the time she arrived at Caritas, Gough testified she had also developed neck pain. X-rays of her neck were performed and a shoe-type brace was placed on her left foot. Following the emergency room visit, Gough was directed to her family physician, Dr. David T. Tao, for additional treatment. Dr. Tao ordered an MRI and prescribed pain medication and muscle relaxers. In the weeks that followed, Gough continued to experience head and neck pain and began experiencing pain radiating into both arms with numbness in both hands. She also experienced ongoing problems with her left foot. Gough remained off work until June 9, 2000, at which time she attempted a return to light duty. Although she described her light duty activities as sitting in a chair and watching other people work, she was only able to continue on the job for an additional two and a half days because her symptoms remained severe. On June 20, 2000, Gough underwent a cervical MRI that demonstrated a "developmentally small spinal canal" and a reversal of the normal cervical lordosis. Small disc herniations were also evident at C5-C6 and C6-C7 with "significant compromise" of the subarachnoid spaces at those levels. Moreover, Gough's "cervical cord" was found to be flattened at C5-C6, and to a lesser extent at C6-C7. On July 24, 2000, Gough underwent a cervical myelogram which revealed (1) a posterior disc osteophyte complex at C5-6 resulting in mild cord flattening and canal stenosis with impingement upon the C6 nerve root sleeve; (2) posterior osteophytic ridging and uncovertebral osteophytosis at C4-5 resulting in mild effacement of the thecal sac and bilateral foraminal narrowing; and (3) a broad-based left paramedian focal disc protrusion at C6-7 resulting in mild effacement of the left anterolateral thecal sac and minimal cord deformity. After the myelogram...