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Henson v. Terminex/Service Master2/21/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Charles S. Henson petitions for review from an opinion of the Workers' Compensation Board, which affirmed the opinion of the Administrative Law Judge limiting an award of income benefits to temporary total disability and denying a claim for permanent occupational disability benefits resulting from an injury Henson received on February 19, 2001, while working for Terminex/Service Master (Terminex).
When reviewing decisions of the Workers' Compensation Board, this court "is to correct the Board only when we perceive that the Board has overlooked or misconstrued controlling law or committed an error in assessing the evidence so flagrant as to cause gross injustice. Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992). After careful review, we affirm.
On February 19, 2001, Henson slipped on icy steps while working for Terminex. He worked half of the day and then reported the incident to his employer. He then returned home, rested and applied heat to his back. The next day he saw his family doctor and was advised to return to work with limitations. On February 22, 2001, he slipped on ice again and although he didn't fall, he testified that this incident aggravated the pain in his back. Henson testified that he then tripped on an electric cord on February 23, 2001. Again, he stumbled but did not fall. He completed work that day but did not return to work thereafter. Temporary total disability benefits were paid at the rate of $331.13 from February 26, 2001, through May 28, 2001, for a total of $4,304.68. Henson filed an Application for Resolution of Injury Claim on August 24, 2001. In the application Henson stated that he had filed a previous Workers' Compensation claim for a back injury in 1984 while employed by a different employer. He testified in his deposition and at the benefit hearing that, in the earlier claim, it was determined that he had a permanent 25% occupational disability due to a low back impairment.
The record reflects that Terminex requested consolidation of the 1984 claim and introduction of transcripts from the prior claim into evidence, at the Benefit Review Conference on January 11, 2002. There is nothing in the record to indicate the specific rulings on these requests. However, at the hearing on the claim on January 25, 2002, the ALJ ruled that the decision in the previous case was admissible. On January 31, 2002, Henson filed a motion to strike the transcripts of evidence from the 1984 claim, arguing that the hearing had taken place on January 25, 2002, but that he had not received the transcripts until Saturday, January 26, 2002. In response, Terminex argued that they had no obligation to provide Henson with the records, although they did, in that it was Henson's own prior claim and he should be estopped from claiming prejudice. In an order dated February 13, 2002, the ALJ ordered the transcripts of evidence from the 1984 claim stricken from the record, citing Terminex's lack of diligence in presenting the transcripts until after the hearing.
On March 21, 2002, the ALJ entered an Opinion and Award, awarding Henson temporary total disability benefits but denying his claim for permanent occupational benefits. On April 1, 2002, Henson filed a Petition for Reconsideration. While the ALJ denied Henson's Petition for Reconsideration, he did strike any reference to prior impairment ratings, which were taken from the stricken transcripts, stating, "This does not, however, change the remainder of the findings, nor does it support a different decision than that set out in the Opinion of March 21." Henson then appealed to the Workers' Compensation Board. The Board affirmed th
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