No. 99-99879 (2002). Malone Freight Lines, Inc. v. Burden.

• Case Date: June 19, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 99-99879 (2002). Malone Freight Lines, Inc. v. Burden MALONE FREIGHT LINES, INC. PETITIONER vs. RONALD DALE BURDEN and HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: June 19, 2002CLAIM NO. 99-99879 APPEAL FROM HON. ROGER D. RIGGS, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Malone Freight Lines, Inc. ("Malone") appeals from a decision rendered January 14, 2002, by Hon. Roger D Riggs, Administrative Law Judge ("ALJ"), granting Ronald Dale Burden ("Burden") an award of permanent partial disability based upon a 25% disability rating and an award of temporary total disability benefits ("TTD") from November 9, 1998 to August 2, 2001. Malone also appeals from an order issued February 22, 2002 denying its petition for reconsideration. On appeal, Malone raises two issues. First, Malone argues that the ALJ's award of permanent partial disability benefits based upon a 25% disability rating was erroneous. Malone contends that one-half of the impairment, or 12.5 %, was attributable to a pre-existing active condition according to the treating physician's testimony. Secondly, Malone argues the ALJ erred in awarding Burden TTD benefits for a nine month period after his treating physician assigned a permanent partial disability rating. After thoroughly reviewing the evidence of record and applicable law, we find no merit in either of these arguments and therefore affirm. Burden was born on December 12, 1970 and is a resident of Sacramento, McLean County, Kentucky. He has a high school education and one and a half years of college at Owensboro Community College. The respondent's past relevant work experience includes employment as a stock person, nurse's aide, and delivery person. Burden entered the employ of Malone as a truck dispatcher in May 1998. Burden allegedly suffered a slip and fall accident when exiting the restroom on November 9, 1998 while in the employ of Malone. He immediately felt a sharp, burning pain in his back, and within an hour he began to feel pressure in his hip, pain in his right leg, and numbness and tingling in his right foot. Directly following the accident, Burden was taken to Owensboro Mercy Hospital, where he was treated in the emergency room and released the same day. Following his injury, Burden returned to work part-time for approximately three weeks in April 1999. He quit due to his pain and has not worked anywhere since that time. Burden eventually underwent fusion surgery on October 12, 1999. Burden filed an Application for Resolution of Injury Claim with the Department of Workers' Claims on October 23, 2000. Thereafter, by order of the Commissioner issued November 6, 2000, Burden's claim was assigned to ALJ Riggs for final adjudication. In addition to Burden's testimony by deposition and at hearing, evidence was submitted for the ALJ's consideration consisting of medical records from Owensboro Mercy Hospital; the medical records of Dr. James Oexmann; the medical report and deposition of Dr. Gregory Gleis; the records, reports, and deposition of Dr. Phillip Tibbs; and the lay testimony of Shannon Feldpausch. Medical records from Owensboro Mercy Hospital demonstrate that Burden was seen in the emergency room for low back pain on November 9, 1998, the same day as the work-related fall at Malone. X-rays were taken and Burden was diagnosed with myofascial lumbar strain, acute low back pain, and spondylolisthesis at L5-S1, with no acute abnormalities. Burden was taken off work for three days and advised to follow up with his family physician. The hospital's records also indicate Burden was seen on two...