No. 01-00060 (2002). Sizemore v. Welding Equipment Repair Service.

Case DateApril 17, 2002
CourtKentucky
Kentucky Workers Compensation 2002. No. 01-00060 (2002). Sizemore v. Welding Equipment Repair Service FLOYD SIZEMORE PETITIONER vs. WELDING EQUIPMENT EQUIPMENT REPAIR SERVICE and HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: April 17, 2002CLAIM NO. 01-00060APPEAL FROM HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Floyd Sizemore ("Sizemore") appeals from a decision rendered January 2, 2002, by Hon. J. Kevin King, Administrative Law Judge ("ALJ"), dismissing his claim against the respondent, Welding Equipment Repair Services ("Welding Equipment"), for failure to carry his burden in establishing that an employment relationship existed at the time the alleged work-related injury. Sizemore also appeals from an order issued January 18, 2002, overruling its petition for reconsideration. On appeal, Sizemore argues that the decision of the ALJ was clearly erroneous and therefore must be overturned. In making this argument, Sizemore contends the evidence compels a finding that he was engaged in work-related activity at the time of his accident. The ALJ determined that Sizemore had been fired prior to arriving at Welding Equipment's place of business on the date of the accident. Sizemore contends that nowhere in the record does the evidence demonstrate that he received the information regarding his termination prior to his injury. He further contends that "it is entirely possible" that he was "just arriving late to work, causing his injury to fall within the scope of work-related activity." Alternatively, Sizemore states that even if he had been terminated prior to arriving at Welding Equipment's place of business and was so aware, he was there to collect his personal affects and, as such, his injury falls within the scope of work-related activity. Having thoroughly reviewed the evidence of record and applicable law, we find no merit in any of these arguments. We therefore affirm the decision by the ALJ. Sizemore was born on March 11, 1966, and is a resident of Newport, Campbell County, Kentucky. He entered the employ of Welding Equipment as a laborer in 1997. As a basis for his claim, Sizemore alleges he suffered a work-related injury to his shoulder on April 8, 2000. The incident allegedly occurred on a Saturday morning. Sizemore stated that his supervisor, Dennis Johnson, had asked him the previous day if he would be willing to work from 6:00 a.m. to 12:00 p.m. Sizemore claimed he reported to work at 6:00 a.m. on the date of his accident. He further alleged that Johnson did not arrive until 9:00 a.m. The accident then allegedly occurred "between 9:45 and 10:15 a.m." According to Sizemore, he had never had any arguments or altercations with anyone at Welding Equipment and, in fact, was due for a raise and a promotion. He had inquired about receiving his raise on the Friday before his injury. Sizemore stated his accident occurred when he tripped over a 2 x 6 board on sand and fell. He claimed he was rendered unconscious for an undetermined period of time after the accident and then transported by ambulance to a local emergency room. According to Sizemore, upon returning home following the emergency room visit, he received a recorded message from Dennis Johnson on his telephone answering machine that he had been fired. Sizemore believes he was fired as a result of having been injured at work. Sizemore testified that although a co-worker, Lindville Phillips, was present in the room when Sizemore fell, he allegedly did not offer to assist Sizemore or check to see if he was okay. When the emergency medical technicians arrived on the scene of the accident, Sizemore asked them why they stopped to talk with his boss and his boss' son rather than coming directly to care for him. Sizemore may have become agitated and offensive, and the emergency personnel threatened to take Sizemore to jail if he did not calm down. When Sizemore arrived at the hospital, he asked to undergo a CT scan and the attending personnel refused. Sizemore received treatment and was released with instructions to return to work on Monday. The next day, Sizemore allegedly received a call from the hospital, asking him to come back for additional x-rays. At the emergency room, Sizemore was apparently seen by Dr. John D. Redden. X-rays of Sizemore's cervical spine, left shoulder, and left elbow, performed April 8, 2000, revealed evidence of an osseous or calcific density in petitioner's left shoulder. X-rays of Sizemore's AC joint performed on April 12, 2000, revealed no acute abnormality, but did show evidence of an old AC separation and an old small avulsion fracture. Sizemore filed an Application for Resolution of Injury Claim with the Department of Workers' Claims on January 17, 2001. By order of the Commissioner issued February 28, 2001, Sizemore's claim was assigned to ALJ King for final adjudication. In addition to Sizemore's testimony by deposition and at hearing, an abundance of lay testimony was submitted for the ALJ's consideration regarding the events surrounding Sizemore's alleged injury. Also submitted was medical evidence from Dr. Richard T. Sheridan, Dr. G. Haj Hamed, St. Luke Hospital East, St. Elizabeth Medical Center, and Dr. Redden. Because the medical evidence has little if any bearing on the issue before us on review, that proof will not be summarized herein below. The testimony from the various lay witnesses, however, is another matter. Dennis Johnson testified he has been an employee of Welding Equipment for approximately twenty-three years. During that time, he has worked as a supervisor, foreman, and laborer. Johnson stated he arrived at work on Saturday, April 8, 2000, at 6:00 a.m. When he arrived at Welding Equipment, employees Wayne...

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