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Gribbins v. Amazon.Com4/21/2005
U in matters involving the weight to be given to the evidence in questions of fact. KRS 342.285(2).
In this case, the evidence noted by the AU is substantial in supporting his determination that the cervical condition was not work-related, and thus the medical expenses for the neck and shoulder were not compensable. The emergency room report of November 30, 1999, indicates that Gribbins did not complain of neck pain and that the neck was not tender. Furthermore, she had a full active and passive range of motion. As observed by the AU and Dr. Guarnaschelli, there are no complaints of neck pain in the medical record prior to March 2000, and the opinions of Drs. Goldman and Guarnaschelli both support a finding that the spine condition was not work-related.
Although Dr. Whobrey apportioned some of the cervical impairment directly to the injury , she evaluated the claimant a full year after the injury. She formulated her opinion based on a history she received from the claimant. When a medical opinion is based solely on history rather than the physician's testing and examination, the AU is not restricted to a myopic view focusing only on the testimony of the physician. Osborne v. Pepsi-Cola, 816 S.W.2d 643 (Ky. 1991). The AU may consider other testimony bearing on the accuracy of the history and if such history is successfully impeached, the trier of fact may disregard any opinion based on it. Osborne v. Pepsi Cola, su ra.
The complaints about the urinary tract and acid-reflux problems are not properly before this Court. As noted by the Board, the compensability of treatment for those conditions was not presented to the ALJ in any form. Moreover, there is substantial evidence in the record to indicate that the urinary tract infection would not be caused by a back injury . There is nothing in the record to indicate that the AU misstated the evidence. An ALJ has the authority to draw any reasonable inference from the evidence represented. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979). In addition, there is no evidence of any bias against Gribbins by the ALJ. The mere fact that he may rule against a claimant is not evidence of bias or prejudice. A review of the transcript indicates nothing that would imply any improper behavior by the ALJ. Evidence of bias and prejudice must be actual and not a mere perception by a party. There must be supporting documentation and information presented to any reviewing authority before bias or prejudice can be imputed to the finder of fact. Cf. Foster v. Commonwealth, 348 S.W.2d 759 (Ky. 1961).
A careful review of the record in this case demonstrates that the ALJ considered all of the lay and medical evidence in the record in very great detail. The Board, in a unanimous opinion, determined that it was well within the province of the AU to rely on the medical testimony presented by the employer. The Board correctly determined that it did not have the authority to overrule the ALJ or to substitute its judgment for his in matters involving the weight to be afforded the evidence in questions of fact. The Court of Appeals correctly stated that the evidence here was not so overwhelming as to require it to supersede the findings of the ALJ.
There was substantial evidence upon which the ALJ could rely and, consequently, the Board and the Court of Appeals were correct in their decisions. The Court of Appeals correctly followed the requirements of Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992).
The opinion of the Court of Appeals is affirmed.
All concur except Graves, J., who concurs in result only.
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