Microsoft Word Alfred Hall vs Brock and Brock Contracting etal 201166415

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Commonwealth of Kentucky   

Workers’ Compensation Board 

 

 

 

OPINION ENTERED:  August 8, 2014 

 

 

CLAIM NO. 201166415 

 

 

ALFRED HALL  

PETITIONER 

 

 

 

VS.  

APPEAL FROM HON. OTTO DANIEL WOLFF, IV, 

 

 

ADMINISTRATIVE LAW JUDGE 

 

 

 

BROCK & BROCK CONTRACTING 

and HON. OTTO DANIEL WOLFF, IV,  

ADMINISTRATIVE LAW JUDGE 

RESPONDENTS 

 

 

 

OPINION 

AFFIRMING 

 

 

 

 

* * * * * * 

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members.   

 

ALVEY, Chairman.  Alfred Hall (“Hall”), pro se

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, seeks 

review of the decision rendered January 8, 2014 by Hon. Otto  

                                           

1

 

Hall was represented by counsel throughout the litigation of his claim.  His 

attorney withdrew after the filing of the appeal, and Hall proceeded pro se.

  

 

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Daniel Wolff, IV, Administrative Law Judge (“ALJ”)

2

, 

dismissing his claim for injuries he allegedly sustained on 

October 27, 2011.  No petition for reconsideration was 

filed.    

 

On appeal, Hall essentially argues the ALJ’s 

dismissal of his claim was erroneous, and not supported by 

substantial evidence.  Because the ALJ’s determination is 

supported by substantial evidence, and a contrary result is 

not compelled, we disagree and affirm.   

 

Hall filed a Form 101 on November 21, 2012 

alleging he injured his back as he was shoveling muck from 

under a beltline while working for Brock & Brock Contracting 

(“Brock”) where he was employed as a general laborer at a 

coal mine.

2

  The employment history Hall provided noted he 

worked as a coal miner from November 2001 until the date of 

the alleged accident on October 27, 2011.  

 

Hall testified by deposition on February 21, 2013, 

and again at the hearing held November 19, 2013.  He is a 

resident of Evarts, Kentucky, and was born on May 28, 1962.  

He is a high school graduate, and attended a few weeks of 

college, but completed no courses. 

                                           

2

 

This claim was originally assigned to Hon. Jeanie Owen Miller, ALJ, and 

subsequently reassigned to Hon. Allison Jones, ALJ.  After ALJ Jones was 

appointed to the Kentucky Court of Appeals, the claim was assigned to ALJ 

Wolff. 

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Hall sustained a prior low back injury while 

working in Michigan in 1987.  He subsequently had low back 

surgery in March 1988, and again in September 1988.  He 

moved back to Kentucky after the second surgery and stated 

he has had back pain off and on since that time.  He 

received a settlement for the Michigan workers’ compensation 

claim.  He later sustained a back strain from pulling a mine 

cable in 2000 for which he also received a settlement. 

 

Hall’s job with Brock consisted of performing 

several different tasks.  He worked on third shift, which 

was a maintenance shift.  He helped on a roof bolting 

machine, delivered supplies with a low truck, mucked the 

beltline, and built brattices. 

 

Hall stated he had no restrictions for his back 

while working for Brock.  He was actively taking Methadone 

prescribed by Dr. Richard Lingreen in Frankfort due to 

previous problems with narcotic addiction.  Dr. Lingreen 

also prescribed Lortab for his back pain.  He stated his 

longstanding issues with addiction also lead to some 

criminal activity.  Brock denied his claim, and refused to 

pay either temporary total disability (“TTD”) benefits or 

medical benefits, and he did not seek medical treatment 

until a few months after the accident.  He has not returned 

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to work for Brock since the date of the accident, but 

briefly drew some unemployment benefits. 

 

Hall testified he was untruthful to his various 

medical providers prior to October 27, 2011  by stating he 

had chronic complaints of low back pain in an attempt to 

obtain medication for his addiction.  He admitted he was 

dismissed from more than one pain clinic due to misleading 

his physicians, and obtaining pain medication from multiple 

sources.  He stated he was truthful about injuring his low 

back on October 27, 2011 as he was shoveling muck, although 

he had previously lied regarding his complaints of low back 

pain. 

 

Hall supported his claim with the June 14, 2012 

report of Dr. James Owen who he saw for evaluation at his 

attorney’s request.  Dr. Owen noted the 1988 low back 

injury.  Hall complained of leg pain, appetite loss, dizzy 

spells, foot pain, cold or numb feet, numbness and tingling.  

Hall acknowledged a history of drug addiction, chronic pain 

and opioid use.  Dr. Owen provided the following diagnosis: 

Persistent low back pain with 

nonverifiable radicular symptomatology 

and marginal radicular sign associated 

with chronic narcotic usage.  The 

statement that he was on methadone and 

did not tell me about it today, nor did 

he tell Dr. Hoskins about it, needs to 

be verified.  It is in Dr. Jenkinson’s 

note as such and certainly would have a 

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significant bearing on the possibility 

of active component at the time of the 

injury 10-27-2011.  In terms of that 

injury, I do think there is a 

significant problem.  I do not think it 

is just sprain/strain inasmuch as it has 

lasted so long and is associated with 

marginal signs; that being diminished 

reflex in the left ankle, mildly 

diminished circumference of the left 

thigh associated with vibratory 

abnormality in the left foot.  However, 

without an MRI, it would be impossible 

to definitively determine a single level 

or whether it has multiple levels. 

 

 

Dr. Owen assessed a 12% impairment rating pursuant 

to the American Medical Association, Guides to Evaluation of 

Permanent Impairment, Fifth Edition (“AMA Guides”), of which 

he attributed 80% to the October 27, 2011 work incident. He 

opined Hall should lift less than thirty pounds on a maximum 

basis, and avoid activities requiring bending, squatting or 

stooping.  He stated Hall does not retain the capacity to 

return to the type of work performed at the time of the 

injury. 

 

Brock filed the October 27, 2007 record of Dr. Sai 

Gutti.  Dr. Gutti noted Hall’s complaints of longstanding 

low back pain for which he had treated with Methadone and 

Duragesic patches.  EMG/NCV studies revealed peripheral 

neuropathy.  Dr. Gutti prescribed two epidural steroid 

injections, Mobic, Relafen, Lyrica and Ultram. 

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Brock also filed the January 25, 2012 office note 

of Dr. Abdul K. Dahhan.  Dr. Dahhan noted Hall was injured 

in a motor vehicle accident on January 23, 2012 from which 

he complained of neck and chest pain.  He noted Hall was 

taking Methadone and Xanax, and he prescribed Motrin 800 mg. 

 

Dr. David Jenkinson evaluated Hall on April 18, 

2012 at Brock’s request.  He noted the reported history of 

acute onset of low back pain on October 27, 2011 while 

shoveling mud, which radiated into Hall’s left leg.  Hall 

complained of mid-back pain radiating into the low back and 

left leg.  He diagnosed a history of possible low back 

sprain/strain, and a long history of chronic back pain and 

opioid dependence.  He noted Hall had not been candid with 

Dr. Robert Hoskins regarding his history and previous use of 

medication.  He stated Brock may have sustained a minor 

sprain/strain, and would need no restrictions, either 

temporary or permanent.  He assessed a 0% impairment rating 

pursuant to the AMA Guides.  He also opined no additional 

treatment was required.   

 

Brock filed an addendum prepared by Dr. Jenkinson 

on March 28, 2013, noting his disagreement with Dr. Owen.  

He specifically stated, “It is apparent that Mr. Hall had 

been having treatment for chronic low back pain several 

years prior to the alleged injury of October 27, 2011.”  He 

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cited to specific records of Drs. Lingreen and Dahhan 

outlining active conditions. 

 

Brock filed records from the Cloverfork Clinic 

outlining Hall’s treatment for complaints of low back pain 

from July 24, 2001 through April 10, 2006.  Those records 

contain notations of specific treatment for acute complaints 

of low back pain stemming from pulling on a curtain and 

heavy cable on July 23, 2001, and also document continued 

treatment for low back pain, narcotic abuse, and overdosing 

of medication.   

 

Hall treated at Harlan ARH from April 12, 1994 

through April 15, 2009 for chronic low back pain resulting 

from his injury and subsequent surgeries in Michigan.  The 

records document ongoing treatment with various medication 

including Naprosyn, Ultram, Robaxin, Oxycontin and Lortab.  

On April 15, 2009, Hall was advised prescriptions would no 

longer be written for him due to his receiving prescriptions 

from multiple doctors. 

 

Dr. Gregory Dye’s office notes dated August 9, 

2004; September 17, 2007 and February 21, 2012 were 

introduced.  In 2004, Dr. Dye noted Hall was treating with 

Xanax, Lortab and Oxycontin for his low back pain.  In 2007, 

he noted continued complaints of low back pain and 

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treatment.  In February 2012, Hall complained of mid and low 

back pain radiating into both legs. 

 

Brock filed the records review report completed by 

Dr. Russell Travis on June 6, 2013.  Dr. Travis opined Hall 

sustained no permanent injury due to the October 27, 2011 

incident.  He likewise assigned no impairment rating 

attributable to that incident.  He stated he agreed with Dr. 

Jenkinson’s report, but took issue with Dr. Owen’s 

assessment. 

 

Brock also filed records from the Lansing General 

Hospital, located in Lansing, Michigan.  Those records 

contain the operative notes from the lumbar surgeries 

performed at the L5-S1 level on March 15, 1988 and September 

19, 1988.  The surgeries consisted of laminotomy, 

discectomy, and bilateral laminotomy. 

 

Finally, Brock filed the February 18, 1991 record 

from the East Tennessee Orthopaedic Clinic.  That record 

notes Hall’s three and a half year complaints of low back 

and left leg pain.  Brock was diagnosed with chronic low 

back pain, and status post two lumbar laminectomies. 

 

A benefit review conference (“BRC”) was held on 

November 13, 2013.  The BRC order and memorandum reflects 

the issues preserved were benefits per KRS 342.730; work-

relatedness/causation; injury as defined by the Act; 

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exclusion for pre-existing disability/impairment; and TTD 

benefits.  

 

The ALJ rendered his decision dismissing Hall’s 

claim on January 8, 2014.  The ALJ cited to numerous 

inconsistencies between Hall’s testimony and the content of 

his pre-injury records.  He specifically stated, “It is also 

disconcerting when a claimant acknowledges he was willing to 

lie to his treating physicians in his efforts (mostly 

successful) to obtain narcotic medication prescriptions.”  

He noted Hall acknowledged he had repeatedly lied to many of 

his pre-injury treating physicians, in particular Dr. 

Lingreen, to obtain medications.  The ALJ also referenced 

the fact Hall had been dismissed from numerous pain 

treatment programs in the past due to violations of his 

prescribed course of medication management. 

 

The ALJ further noted, “He contends his present 

complaints are true, he does now have back pain, but his 

pre-injury complaints of back pain are untrue and should now 

be disregarded.” 

 

The ALJ specifically found as follows: 

Herein three physicians opined regarding 

whether or not Plaintiff’s alleged 

present back pain and problems are 

connected to his alleged work incident 

of October 27, 2011.  Defendant obtained 

two IME-type reports. One of Defendant’s 

IME physicians, Dr. Russell Travis, a 

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neurosurgeon, conducted a records-

review.  The date of the first record 

reviewed by Dr. Travis was May 2, 1994 

and the last record reviewed by Dr. 

Travis was dated January 21, 2013. 

 

Pursuant to his review of Plaintiff’s 

medical records, spanning a period of 

almost 20-years, Dr. Travis concluded, 

“there was no evidence of any permanent 

injury.  The most Mr. Hall may have 

suffered would be a lumbar sprain and 

strain on that date.”  The basis for Dr. 

Travis’ conclusions was his review of 

approximately 100 medical records, 

reports pertaining to Plaintiff’s pre-

injury medical status, and he also read 

and noted Plaintiff’s deposition 

testimony.  The thoroughness of Dr. 

Travis’ review provides compelling 

evidence that Plaintiff’s complaints of 

back pain, which Plaintiff associates 

with his work injury, are no different 

than the complaints Plaintiff had on the 

day prior to the day of Plaintiff’s 

possible work-related lumbar sprain or 

strain.  

 

A review of Plaintiff’s extensive pre-

injury medical records well documents 

Plaintiff’s pre- and post-injury 

complaints of back pain, are basically 

the same.  The expert medical input of 

Defendant’s two physicians constitutes 

persuasive proof Plaintiff’s present 

complaints of back pain were not caused 

by his October 27, 2011 work incident.  

  

On the issue of causation, Plaintiff’s 

input is not credible.  Almost all his 

medical records, for years prior to his 

work injury, squarely contradict what he 

is now contending.  It is clear that 

prior to and at the time of his work 

injury, Plaintiff continuously reported 

basically the exact same complaints he 

now attempts to link to his work injury.  

Plaintiff cannot have it both ways. 

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No petition for reconsideration was filed by 

either party. 

 Hall, 

pro se, filed a hand-written document 

outlining what he perceived to be incorrect findings from 

the ALJ who he believed was mistaken.  This Board accepted 

the tendered document as Hall’s brief.  Because Hall is 

proceeding 

pro se, we will attempt to explain the 

fundamental legal principles controlling how this Board must 

decide an appeal. 

 

In the Kentucky’s workers’ compensation system, 

the ALJ functions as both judge and jury.  When performing 

the duties of a jury, the ALJ is commonly referred to as 

the “fact-finder.” 

 As fact-finder, the ALJ reviews the 

evidence submitted by the parties and decides which 

testimony from the various witnesses is more credible and 

best represents the truth of the matter or matters in 

dispute.  The ALJ, as judge, then applies the law to the 

facts as he determines them to be true.  As a matter of 

law, the facts as decided by the ALJ cannot be disturbed on 

appeal by this Board so long as there is substantial 

evidence of record to support the ALJ’s decision.  See  KRS 

342.285(1); Special Fund v. Francis, 708 S.W.2d 641 (Ky. 

1986). 

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Although we understand Hall is frustrated 

regarding the dismissal of his claim, we also recognize the 

ALJ’s job as fact-finder is difficult.  As a rule, in every 

worker’s compensation claim, both sides resolutely contend 

they have presented evidence of “the truth” concerning 

those matters at issue.  It is for this very reason in 

cases where the evidence is conflicting, the facts 

concerning an issue as determined by the ALJ are afforded 

vast deference as a matter of law on appellate review. 

 

     Authority establishes Hall, as the claimant in a 

workers’ compensation case, bore the burden of proving each 

of the essential elements of his cause of action before the 

ALJ.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  

Since Hall was unsuccessful in his burden of proving his 

case, the question on appeal is whether the evidence is so 

overwhelming, upon consideration of the record as a whole, 

as to compel a finding in his favor.  Wolf Creek Collieries 

v. Crum, 673 S.W.2d 735 (Ky. App. 1984). 

 

 

 

 

 

“Compelling evidence” is defined as evidence so 

overwhelming no reasonable person could reach the same 

conclusion as the ALJ.  REO Mechanical v. Barnes, 691 

S.W.2d 224 (Ky. App. 1985).  As fact-finder, the ALJ has 

the sole authority to determine the weight, credibility and 

substance of the evidence.  Square D Co. v. Tipton, 862 

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S.W.2d 308 (Ky. 1993).  Similarly, the ALJ has the sole 

authority to judge all reasonable inferences to be drawn 

from the evidence. Miller v. East Kentucky Beverage/ 

Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. 

General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The 

ALJ may reject any testimony and believe or disbelieve 

various parts of the evidence, regardless of whether it 

comes from the same witness or the same adversary party’s 

total proof.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 

2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  

Mere evidence contrary to the ALJ’s decision is not 

adequate to require reversal on appeal.  Id.  In order to 

reverse the decision of the ALJ, it must be shown there was 

no substantial evidence of probative value to support his 

decision.  Special Fund v. Francis, supra. 

 

 

Here, the record contains substantial evidence 

supporting the ALJ’s dismissal of Hall’s claim.  In making 

his determination, the ALJ relied upon both lay and medical 

testimony.  He specifically discussed Hall’s lack of 

credibility due to the inconsistencies in his testimony, and 

his prior treatment.  He also specifically noted the 

opinions of Dr. Travis, which constitutes substantial 

evidence supporting the dismissal of this claim.  Therefore, 

a contrary result is not compelled.  The ALJ properly 

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considered all evidence of record, weighed that evidence, 

and reached a decision supported by substantial evidence 

and in conformity with the law.  Thus, we are without 

authority to direct a different result.   

 

 

Accordingly, the January 8, 2014 Opinion and 

Order dismissing Hall’s claim, rendered by Hon. Otto Daniel 

Wolff, IV, Administrative Law Judge, is hereby AFFIRMED. 

 

ALL CONCUR.  

 

 

PETITIONER, PRO SE:  

 

ALFRED HALL  

PO BOX 444  

EVARTS, KY 40828 

 

COUNSEL FOR RESPONDENT:  

 

HON W BARRY LEWIS  

PO BOX 800  

HAZARD, KY 41702 

 

ADMINISTRATIVE LAW JUDGE:  

 

HON OTTO DANIEL WOLFF, IV 

PREVENTION PARK  

657 CHAMBERLIN AVENUE 

FRANKFORT, KY 40601