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Rumpke of Kentucky12/12/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Rumpke of Kentucky, Inc. has petitioned for review of an opinion and order of the Workers' Compensation Board entered on November 27, 2002, which reversed the Administrative Law Judge's determination that Donald Leon Gribbin had failed to establish a prima facie case for the reopening of his claim pursuant to KRS 342.125. The Board remanded the case to the ALJ for a "reopening on the merits." Having concluded that the Board has not overlooked or misconstrued controlling statutes or precedent or committed an error in assessing the evidence so flagrant as to cause gross injustice, we affirm.
Gribbin began working for Rumpke in September 1998, as a heavy equipment operator and tractor-trailer driver. On April 7, 1999, Gribbin was injured during the course of his employment when his foot slipped off of a ladder located at the rear of a tanker trailer. Gribbin sustained injuries to his lower back and hip. As a result of these injuries, Gribbin subsequently underwent surgery for a subluxation of his left hip.
On July 2, 1999, Gribbin filed an application for resolution of injury claim with the Department of Workers' Claims. On November 3, 2000, the ALJ approved a settlement agreement between Gribbin and Rumpke. The diagnosis on the settlement agreement stated " hronic progressive low back pain, subluxation of the left hip." Under the terms of the settlement agreement, Gribbin was entitled to a lump-sum payment of $2,479.57, which was based on a 3.75% permanent disability rating. This amount was in addition to payments of $25,544.30 in medical expenses and $4,777.00 in temporary total disability (TTD) benefits that Gribbin had already received.
On June 14, 2002, Gribbin filed a motion to reopen pursuant to KRS 342.125. In support of his motion to reopen, Gribbin attached an affidavit wherein he stated that he had experienced "a sharp increase in the level of symptoms in my low back[.]" Gribbin further stated that he had undergone surgery to repair a ruptured disk in his back, based upon the recommendation of Dr. Rolando Cheng. Finally, Gribbin stated that he had not sustained any new injuries to his back since the settlement of his claim, and that he believed his additional complications were "directly related" to the work-related injury he suffered on April 7, 1999.
In addition to his affidavit, Gribbin attached several medical records related to his diagnosis and treatment following the exacerbation of his symptoms. Gribbin sought payment for his additional medical expenses, an award of TTD benefits, and an increased permanent partial disability award.
On July 18, 2002, Rumpke filed a response objecting to Gribbin's motion to reopen. Rumpke argued that "there no medical evidence that [Gribbin] [had any] increase in occupational disability due to the work injury in question nor there evidence that the alleged total disability was caused by a 'worsening of [Gribbin's] condition' which is a necessary criteria pursuant to 342.125(1)(d)." The ALJ agreed with Rumpke and denied Gribbin's motion to reopen on July 18, 2002. On August 21, 2002, the ALJ denied Gribbin's petition for reconsideration.
Gribbin appealed to the Board, which reversed the ALJ's denial of Gribbin's motion to reopen in an opinion and order entered on November 27, 2002. The Board ruled that "the ALJ erred as a matter of law in finding Gribbin did not present a prima facie showing of work-relatedness." Consequently, the Board remanded the matter "for a reopening on the merits." This appeal followed.
Rumpke's sole claim of error on appeal is that the Board improperly substituted its evaluation o
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