No. 96-92803. Davis v. Gibson Greeting Cards.

• Case Date: June 05, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 96-92803. Davis v. Gibson Greeting Cards EMERY GLENN DAVIS PETITIONER VS. GIBSON GREETING CARDS; SPECIAL FUND and HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION -ENTERED: June 5, 2002CLAIM NO. 96-92803APPEAL FROM HON. SHEILA C. LOWTHER, CHIEF ADMINISTRATIVE LAW JUDGEAFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Emery Glenn Davis (?Davis?) appeals from an opinion and order rendered January 28, 2002 by Hon. Sheila C. Lowther, Chief Administrative Law Judge, (?CALJ?) dismissing his claim on reopening against the respondents, Gibson Greetings, Inc. (?Gibson?) and the Special Fund (now Workers? Compensation Funds). In dismissing Davis?s claim, the CALJ determined that Davis was 100% occupationally disabled at the time of his prior settlement. Davis also appeals from an order issued February 22, 2002 denying his petition for reconsideration. On appeal, Davis argues that the medical evidence did not support a finding that he was totally occupationally disabled at the time of settlement. Rather, he contends the evidence compels an opposite finding that he was employable at the time of settlement, but that his physical condition and occupational disability have deteriorated since that time, now rendering him 100% disabled. After thoroughly reviewing the evidence of record and applicable law, we find no merit in any of these arguments and therefore affirm the decision of the CALJ. Davis was born on July 29, 1963, and is a resident of Paris, Bourbon County, Kentucky. He dropped out of school in the eighth grade, but later obtained his GED. He also has vocational training as an electrician and is a licensed electrician and plumber. His past relevant work experience includes twelve years of employment at various factories as an electrician, and work as an electrician?s helper and machine operator. Davis entered the employ of Gibson in September 1995. He sustained a work-related injury to his low back on January 30, 1996, when he fell on a conveyor belt. He eventually underwent fusion surgery with hardware inserted at L3-5 in August 1996. The hardware was later removed. Davis has not worked anywhere since the date of the injury. On June 2, 1997, Davis filed an Application for Adjustment of Injury Claim with the Department of Workers? Claims. The parties subsequently entered into a settlement agreement on September 12, 1997, based upon a 50% occupational disability, apportioned equally between Gibson and the Special Fund. The settlement was approved by then Chief Arbitrator, Hon. Mahlian Grinstead, on October 2, 1997. On June 5, 2001, Davis filed a motion to reopen his 1997 settlement, alleging a worsening of his back condition resulting in an increase in occupational disability. By order issued July 9, 2001, the motion was sustained to the extent Davis?s cause of action on reopening was ordered assigned to an Administrative Law Judge for further litigation. Ultimately, the claim was assigned to CALJ Lowther for purposes of final adjudication by order issued August 16, 2001. In the current reopening, Davis testified that initially following his 1996 fusion surgery, his condition improved considerably. He stated that at the time of the settlement, he had constant moderate low back pain and intermittent mid-back pain. As a result, while he did not believe he could return to his prior work as an electrician, he did believe that if he was able to successfully complete additional education, he would be capable of returning to some type of...