No. 05-69401. Ballard v. Active Transportation.

Case Date:February 01, 2008
Kentucky Workers Compensation 2008. No. 05-69401. Ballard v. Active Transportation GEORGE BALLARD PETITIONER VS. ACTIVE TRANSPORTATION and HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: February 1, 2008CLAIM NO. 05-69401APPEAL FROM HON. DONNA H. TERRY, ADMINISTRATIVE LAW JUDGEAFFIRMING * * * * * * BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.GARDNER, Chairman. George Ballard ("Ballard") seeks review of a decision rendered September 28, 2007 by Hon. Donna H. Terry, Administrative Law Judge ("ALJ"), dismissing his claim for permanent disability benefits stemming from a low back injury that occurred on June 11, 2004, while he was employed by the respondent, Active Transport ("Active"). In so ruling, the ALJ determined, based upon medical evidence from Gregory Gleis, M.D., and Stephen Graham, D.C., the effects of the 2004 injury had resolved resulting in no permanent impairment rating by the time Ballard sustained a more significant injury on September 14, 2005, working for a subsequent employer, TGM Constructors ("TGM"). Ballard also appeals from an order issued October 25, 2007 by the ALJ, denying his petition for reconsideration. On appeal, Ballard argues the ALJ's determination that the "June 11, 2004 work injury resolved and resulted in no permanent impairment" is not supported by substantial evidence. Ballard further charges the ALJ "misconstrued controlling law." Ballard contends that contrary to the ALJ's decision, the record compels a finding that he suffered a low back injury on June 11, 2004, permanently arousing a dormant preexisting condition in his low back resulting in a 5% impairment rating. In support of his argument, Ballard directs the Board's attention to Finley v. DBM Technologies, 217 S.W.3d 261 (Ky.App. 2007). Ballard charges that analogous to the medical evidence in Finley, Dr. Gleis "maneuvered around the legal term of art surrounding pre-existing conditions, did not address whether Mr. Ballard's work-injury aggravated a pre-existing dormant Lumbar degenerative disc disease into symptomatic and disabling reality and, instead branded [his] pre-existing condition as `natural aging.'" Ballard further asserts there is no evidence of record to support the ALJ's conclusion that the effects of his 2004 low back injury "ever resolved" or that his existing complaints are causally related to the 2005 injury at TGM. The above arguments notwithstanding, Ballard does not dispute the evidence as summarized by the ALJ. Rather, Ballard takes issue with the conclusions and inferences drawn by the ALJ from that evidence, and with the ALJ's application of the law to those facts found most credible. Having reviewed the record in this matter and finding the ALJ's summary of the record to be thorough and accurate for our purposes on appeal, we adopt it as our own as follows:
Plaintiff George Ballard seeks income benefits and payment of medical expenses in Claim No. 04-80133 arising from a June 11, 2004 injury sustained during employment by the defendant Active Transportation (hereinafter `Active'). This claim has been consolidated with Claim No. 05-69401 arising from a September 14, 2005 injury during employment by TGM Constructors; however, the latter workers' compensation claim was settled in an agreement approved by the undersigned Administrative Law Judge on October 30, 2006.
Claim No. 04-80133 remains unresolved and the issues for resolution herein are the causation of Mr. Ballard's back complaints, the effect of the intervening September 14, 2005 injury during employment by TGM Constructors, and the extent and duration of disability arising from...

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