JUSTICE GRAVES ISSUES STINGING CONCURRING OPINION IN W/C CASE….Judge Thompson indentifies the problem Former Supreme Court Justice Graves who was categorized as one of the more Conservative Justices on the Ky. Supreme Court until his retirement at the end of 2006, has continued to serve as a Senior Status Judge working on the Court of Appeals. On June 20, 2008 he issued a concurring opinion, that sounds more like a dissent. In any event, we enjoy his pithy language, and his concern for the common working man. In the same case, Judge Kelly Thompson issued a unabashed dissent, and expresses the harshness of giving the Admin. Law Judge in a Worker’s Comp. case so much discretion. You may find these cases interesting. NO. 2007-CA-002609-WC CLARENCE HICKS APPELLANT v. WORKERS’ COMPENSATION BOARD ACTION NO. WC-06-78469 R & J WELL SERVICE; HON. CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES GRAVES, SENIOR JUDGE, CONCURRING: I concur with the majority solely because my oath requires that I follow the law, regardless of how unfairly it treats the working wounded who continue to serve their employer. The existing Kentucky Workers’ Compensation Act has been applied in accordance with the statute; however, I write separately because the result reached by the ALJ is inconsistent not only with the humanitarian purpose of Workers’ Compensation law but also with moral principles. In an employment relationship there is an underlying element of natural justice. When an injured worker is forced to forego necessary curative medical treatment for an on the job injury, he is submitting to a forced wrong, against which justice cries out in protest. Many fact finders would decide this case differently because they would be able to articulate the infinite variations in gradation of physical injury to the back. That is, the indirect effects of injury have various degrees of gravity -depending on an individual’s recuperative powers. Clarence Hicks is being penalized because he has continued to labor even though he had an active disability. King Draco, with his vast array of multitudinous machinations, could not have devised a more cruel or more harsh result. He would be proud of the result in this case. Had the Kentucky Workers’ Compensation Act existed in earlier times, Richard the Lionhearted would never have dared risk having a heavy male knight injure his back at the expense of a royal treasury, nor would Columbus or Pizarro have dared the slippery footing of the Santa Maria or the slopes of Mexico. It would not have been worth it. When soldiers are injured in the line of duty they are given a medal, usually a Purple Heart. Were Clarence Hicks given an award, it would be a Dunce’s cap with the inscription, “Denied a remedy because I am an expendable American worker.” THOMPSON, JUDGE, DISSENTING: I must respectfully dissent. I agree with Judge Graves’ eloquent expression of the injustice of a denial of benefits in this case but differ with the majority’s conclusion that Kentucky’s Workers’ Compensation law requires such a result. Mr. Hicks withstood the rigors of heavy manual labor while working for R & J from 1994 thru 2006. In 2001, he began to experience physical symptoms of a gradual wear and tear type injury to his back and eventually an MRI revealed a bulging disc. Despite his condition, Hicks continued to work for his employer well in excess of forty hours per week until August 18, 2006, the date of the injury. The ALJ has ruled that Mr. Hicks was temporarily totally disabled with an inconsistent finding of no disability. Now, Mr. Hicks has no health insurance to pay for his surgery because he was injured at work. The ALJ relied heavily on the testimony of Dr. Jenkinson who performed an independent medical examination at R & J’s request. His opinion was that Hicks had only degenerative changes and, contrary to the opinions of Drs. Potter, Bean, Templin, and Best, opined that Hicks had a 0% impairment rating. In view of the medical opinions in disagreement with Dr. Jenkinson’s opinion, the result of the MRI, and the recommendation by Dr. Bean that Hicks undergo surgery to treat his herniated disc, it defies common sense to rely exclusively on Dr. Jenkinson’s opinion. I believe this case is an example of the “substantial evidence” test taken to the extreme. The majority’s unbending adherence to the deference owed the ALJ in fact finding matters reduce the test to a mere “scintilla of evidence” test. The MRI revealed that Hicks has a bulging disc and will undergo surgery. He has engaged in heavy labor for the past fourteen years yet Dr. Jenkinson rendered the subjective diagnosis that Hicks is a malingerer. The objective facts simply do not support Dr. Jenkinson’s subjective diagnosis. It is not mere coincidence that the only physician who gave a 0% impairment rating was the employer’s independent medical evaluator.I would reverse and remand this case to the ALJ for an award of benefits.

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