No. 05-69401. Ballard v. Active Transportation.
Case Date | February 01, 2008 |
Court | Kentucky |
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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