No. 11-00570. BERNIE WEIGEL PETITIONER VS. FEDERAL MATERIALS and HON JOSEPH W. JUSTICE,.

• Case Date: May 08, 2012
• Court: Kentucky

Kentucky Workers Compensation 2012. No. 11-00570. BERNIE WEIGEL PETITIONER VS. FEDERAL MATERIALS and HON JOSEPH W. JUSTICE, BERNIE WEIGEL PETITIONER VS. FEDERAL MATERIALS and HON JOSEPH W. JUSTICE, ADMINISTRATIVE LAW JUDGE RESPONDENTS OPINION ENTERED:May 8, 2012CLAIM NO. 201100570APPEAL FROM HON. JOSEPH W. JUSTICE, ADMINISTRATIVE LAW JUDGEOPINION AFFIRMING * * * * * *BEFORE: ALVEY, Chairman; STIVERS and SMITH, Members. ALVEY, Chairman. Bernie Weigel ("Weigel") seeks review of the opinion and order rendered December 8, 2011, by Hon. Joseph W. Justice, Administrative Law Judge ("ALJ"), dismissing his claim for benefits against Federal Materials. The ALJ determined Weigel failed to prove he sustained any injuries to his left shoulder, right knee, right elbow, neck and back in the December 15, 2010 truck accident. Weigel also appeals from the order on his petition for reconsideration entered January 23, 2012. On appeal, Weigel argues the ALJ erred in finding he did not sustain any work- related injuries since objective evidence exists to the contrary, and he is therefore entitled to permanent partial disability ("PPD") benefits, temporary total disability ("TTD") benefits and medical benefits. Weigel testified by deposition on June 6, 2011 and at the final hearing held October 12, 2011. Weigel was born on April 18, 1955 and resides in Paducah, Kentucky. He completed high school, is certified in automotive repair and has a commercial driver's license. Weigel's work history includes work as a carpenter and truck driver. Weigel began working for Federal Materials in January 2007 as a concrete driver. At the time of the December 15, 2010 accident, he primarily worked as a tanker driver, but occasionally drove a concrete truck. Weigel testified Jeff Brandon ("Brandon") was his supervisor, but he took all his orders from Ronnie Herndon ("Herndon"). Weigel "busted [his] left wrist" in 1984. In 2003, he "blew out [his] left calf muscle and damaged [his] knee," requiring left knee surgery. He had heart attacks in 2003 and 2004. In October 2009, Weigel treated with the Heart Group for heart problems and advised them he occasionally lost consciousness briefly as if he were falling asleep. Weigel suffered from a heart attack, a mini-stroke and pneumonia in 2010 requiring three separate visits to the hospital. Weigel testified he was in a prior truck accident on July 28, 2010, when an ACT truck pulled into the right lane occupied by Weigel, forcing him to hit a curb. Weigel experienced some neck pain and injured his right leg and knee when he hit it against the dashboard. He was treated at the emergency room and fully recovered from that accident. Weigel testified he pulled a muscle in his back and sought medical treatment at Lourdes Hospital a few months prior to the July 28, 2010 truck accident. Weigel admitted diagnostic studies were completed on his low back in 2009. It is unclear whether the pulled back muscle and diagnostic studies stem from the same event. On December 7, 2010, Weigel testified he sought treatment at Lourdes Hospital for stoke-related symptoms of right leg numbness but denied having low back complaints at that time. Weigel also stated prior to the December 15, 2010 truck accident, he had complaints and problems with weakness and numbness in his legs which he attributed as possible stroke-related symptoms. In his deposition, Weigel testified prior to December 15, 2010, he had no problems or treatment for his neck, right shoulder or back. At the hearing, he again testified he had no previous problems with his right knee, hip, left shoulder or neck, but he later admitted to previous knee and neck complaints due to the July 2010 accident. Weigel testified he had no complaints and nothing was bothering him leading up to the December 15, 2010 accident and he had no work restrictions. On December 15, 2010, Weigel was driving a tractor trailer from Paducah to Missouri. While in Missouri, Weigel testified he attempted to pass another truck located in the left lane at approximately 70 miles per hour. The other truck came into Weigel's lane as he attempted to pass, forcing Weigel into the center grassy median. Weigel's truck ran over a concrete drain located in the median causing the tractor trailer to go airborne. Weigel hit his head on the roof of the cab, left shoulder on the door frame, right knee on the dashboard and right elbow on the steering wheel. The police requested Weigel drive the tractor trailer to a gas station located off the next exit from the highway after they completed their investigation. Weigel called Brandon, Herndon and Josh Brown ("Brown") of Federal Materials to notify them of the accident. Brown and Brandon came to the scene of the accident and then met with Weigel at the gas station. Weigel testified his whole body was sore, but his primary complaints were to his left shoulder, neck, right leg and knee. However, Weigel only advised Brandon and Brown he was sore and his whole body hurt. Weigel did not seek medical treatment because he "thought [he] could work it out." Following the accident, he drove the tractor trailer back to Paducah. On December 16, 2010, Weigel attended a post-accident review meeting with Brown, Brandon and Gary Thompson. Weigel advised he was sore, but did not request medical attention. Weigel...