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Slaven v. General Electric Co.5/13/2005
AFFIRMING
BEFORE: BARBER AND SCHRODER, JUDGES; HUDDLESTON, SENIOR JUDGE.
Gary Slaven petitions for a review of a decision of the Workers' Compensation Board which affirmed an award of the Administrative Law Judge for an injury to his left thumb and for a lower back injury, but denied benefits for an occupational hearing loss. We do not perceive that the Board or the ALJ flagrantly erred in assessing the evidence so as to cause a gross injustice. Therefore, we affirm.
The parties stipulated coverage under the Act, that Slaven worked for the General Electric Company at all times herein, that Slaven received an injury to his left thumb on December 7, 2000, an injury to his lower back on July 10, 2001, and the last day of exposure for the hearing loss claim was April 12, 2002. Slaven worked as a machinist performing production work. General Electric conceded causation of the thumb injury to the ALJ and there are no issues in this appeal concerning the thumb injury and award. The hearing loss was also found to be work related but current testing indicated "there had been no significant worsening... since it was tested in 1993". Therefore, the hearing loss claim was found to have been untimely. The ALJ also found a thirteen percent impairment from the back injury and that Slaven was unable to return to the type of work performed at the time of his injury which required application of the multiplier of 3 under KRS 342.730(1)(c)1. for determining benefits. The Board affirmed the ALJ's findings and award, except as to whether Slaven could return to his previous work. Based on the doctors' review of surveillance videotapes of Slaven working at his and his wife's liquor store, and shown to Drs. Arias and Goris, he could return to his previous employment and was only partially disabled, and remanded for the multiplier of .2 under KRS 342.730(1)(c)3.
On appeal to this Court, Slaven raises five allegations of error. First, Slaven contends the ALJ erroneously relied on the surveillance videotapes because they were not introduced into evidence, authenticated, or proven as genuine. After Slaven's back surgery, he alleged he was incapable of returning to work. His employer had surveillance videos taken of Slaven performing activities at the liquor store and these same tapes were shown to Dr. Arias and Dr. Goris, who both testified as to the extent and duration of Slaven's back injury . The ALJ found that Slaven admitted "he waits on customers and can put up bottles." Slaven also admitted he was on some surveillance tapes. Slaven now questions what tapes the doctors reviewed, if they saw the whole tapes, and whether they were the same tapes Slaven was referring to. The problem is that Slaven never objected or made this concern known until after the ALJ made her rulings. Had a concern been voiced at the time the doctors testified concerning their observations, the matter could have been corrected or addressed before the hearing. The failure to object until after the ALJ's ruling, waives any objection to the admissibility of the evidence. See Garland v. Commonwealth, 127 S.W.3d 529 (Ky. 2003); Young v. Commonwealth, 50 S.W.3d 148 (Ky. 2001).
Next, Slaven contends the ALJ erred in awarding benefits based on a thirteen percent impairment rating when the ALJ made a finding that Dr. Arias gave a thirty-one percent impairment rating. Dr. Arias testified that he placed Slaven in a DRE Category III which is thirteen percent. To the thirteen percent, he added components for motor weakness, etc. and the combination was thirty-one percent. However, the videotapes showed the limitations on Slaven were not as severe as originally thought. Also, Dr. Goris's assessment was thirtee
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