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Branstutter Concrete Construction v. Jones2/14/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING ON DIRECT APPEAL AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ON CROSS-APPEAL
Branstutter Concrete Construction (Branstutter) petitions for review from an opinion of the Workers' Compensation Board (Board) which vacated and remanded a decision of the Administrative Law Judge (ALJ) for further findings of fact concerning the ALJ's rejection of the Range of Motion model in favor of the DRE model in assigning an impairment rating to appellee Heath Jones.
Jones cross-petitions for review of the Board's decision alleging that the ALJ failed to address whether he is totally disabled; that the ALJ erred in permitting Branstutter to amend its Form 111; that the ALJ erred in permitting Branstutter to submit a medical report outside of its proof time; and that the ALJ erred by permitting Branstutter to submit photographs into evidence without proper authentication.
In Branstutter's direct appeal, we affirm the Board's decision to remand the case for additional findings. In Jones's cross-appeal, we reverse the Board and remand on the issue of whether the ALJ adequately addressed whether Jones is totally disabled, and affirm on the remaining issues.
In June or July 1987, Jones was involved in a head-on automobile collision. As a result of the accident, among other things, Jones underwent back surgery for a herniated disc at lumbar 5, S1, and was off work for two years. The 1987 non-work related accident is relevant because the occupational injury at issue in this case also involves an injury to Jones's back.
In April 2000, Jones began working for Branstutter Concrete as a laborer pouring and finishing concrete. On June 20, 2000, Jones suffered a work-related injury to his lower back while unhooking a trailer from a company truck. On June 26, 2000, Jones aggravated the back injury while raking gravel in the course of his employment with Branstutter.
On May 7, 2001, Jones filed an application for resolution of injury claim with the Department of Workers Claims, and the case was assigned to the ALJ. On July 5, 2001, Branstutter filed a Form 111, notice of claim denial or acceptance. In the pleading, Branstutter admitted that Jones's injury was covered under the Workers' Compensation Act; occurred or became disabling on June 20, 2000; and that Jones gave timely notice of his injury. However, Branstutter denied the claim on the basis that the injury was a temporary exacerbation of Jones's prior active back problems.
On August 20, 2001, Branstutter took the deposition of Jones's supervisor, Tony Belew. Belew testified that Jones did not, to the best of his knowledge, lift the trailer off the trailer hitch on June 20, 2000, as alleged, nor did Jones at any time provide notice to Belew of the occurrence of any work-related injury regarding that date. Based upon Belew's testimony, on September 11, 2001, at the benefit review conference, the ALJ permitted Branstutter to amend its Form 111 to list causation/work-relatedness as a contested issue.
On September 25, 2001, the final hearing was held. At the hearing, Branstutter claimed that it had not received notice of Dr. James Owen's June 19, 2001, deposition and, as a result, had been denied to opportunity to cross-examine the physician. As a result, over the objection of Jones, the ALJ permitted Branstutter to submit as evidence outside of proof time the June 6, 2001, Form 107 medical report of Dr. Owen. Additionally, over the objections of Branstutter, Jones was permitted to file the deposition of Dr. John Kelly outside of proof time as rebuttal evidence. Also at the hearing the ALJ permitted Branstutter to file as eviden
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