No. 00-78622 (2002). Wayne Long Truck Co. v. Bartley.

• Case Date: April 03, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-78622 (2002). Wayne Long Truck Co. v. Bartley WAYNE LONG TRUCKING COMPANY PETITIONER VS. MICHAEL D. BARTLEY and HON. RONALD E. JOHNSON, ADMINISTRATIVE LAW JUDGE RESPONDENTS AND MICHAEL D. BARTLEY PETITIONER VS. WAYNE LONG TRUCKING COMPANY and HON. RONALD E. JOHNSON, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED:April 3, 2002CLAIM NO. 00-78622APPEAL FROM HON. RONALD E. JOHNSON, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Wayne Long Trucking Company ("Wayne Trucking") and Michael Bartley ("Bartley") appeal from an opinion and award rendered October 19, 2001, by Hon. Ronald E. Johnson, Administrative Law Judge ("ALJ"), granting Bartley benefits based on a 48% permanent partial impairment. On appeal, Wayne Trucking argues the ALJ erred in finding that Bartley's injury arose out of and in the course of his employment. In making this argument, Wayne Trucking asserts that the ALJ's determination was not supported by substantial evidence. Wayne Trucking also contends the ALJ applied an incorrect standard when he relied on Colwell v. Mosley, 309 S.W.2d 350 (1958). Bartley appeals arguing the ALJ erred by finding him only permanently partially disabled as a result of his injury. Bartley contends that the overwhelming evidence compels a finding of total occupational disability, particularly when coupled with evidence regarding his age, education, and work history. Bartley was born on March 2, 1955 and has a high school education. He is a resident of Pike County, Kentucky. Bartley first began working as a truck driver in 1986. He was employed exclusively as a coal truck driver for eight years prior to the alleged work injury that is the subject of this claim. Bartley first entered the employ of Wayne Trucking in 1995. In 1986, Bartley sustained a work-related injury that resulted in a fractured pelvis. Although he never filed an application for benefits or received any settlement related to that injury, Bartley testified that he continues to experience constant pain in his pelvis affecting his ability to run or jump. However, that injury is not at issue in the instant appeal. On June 27, 2000, Bartley suffered an injury to his head and neck when a large tree limb fell and struck him. The facts related to this accident are, for the most part, undisputed. On the date in question, Bartley was driving a fully loaded coal truck away from a coal mine when he encountered some tree limbs lying across the roadway blocking his route. The road was a one-lane public highway that was not part of the employer's premises. A single man was working at the site trimming a tree and clearing fallen branches from the roadway. The man had apparently been hired by a private property owner and was not employed by Wayne Trucking. Bartley testified that he parked his truck and got out to help the man remove the limbs from the road in order to "expedite the process." Bartley further testified that while moving the obstruction, the man told him he had a remaining limb to cut from the tree that was too big for him to move by himself. The man asked Bartley if he would help move the limb from the road after it was cut. Bartley testified at the final hearing that he was unsure whether all of the branches had been removed from the roadway before the man cut the final limb that injured him. However, he stated he believes some branches were still in the road and that he could not have continued to his destination without driving his truck too close to the edge of the narrow road. In any event, Bartley agreed to help and the man went to the tree with his chain saw and severed the branch. Bartley testified that he moved to what he considered a safe distance away from the tree. Unfortunately, when the limb was cut, it unexpectedly "kicked around" striking Bartley in the head. It is unclear from the testimony whether the laborer was up in the tree or on the ground when he cut the limb. Nevertheless, Bartley stated he did not have time to move or put up his arms to block the branch. The branch knocked him to the ground and dazed him so that he was unable to get up for about five minutes. Bartley estimated the branch that hit him was approximately five inches in diameter. Immediately after the accident, Bartley was treated by EMTs at the scene and then taken to Pikeville Methodist Hospital. There, x-rays were taken that revealed Bartley had indeed suffered a fractured cervical spine. He was transported by ambulance that same day to Good Samaritan Hospital in Lexington, Kentucky. On July 3, 2000, Bartley underwent spinal fusion surgery at C5-7. There is no evidence of record as to how long...