*1 county government ordi- of a local ment matter, apply In we must
nance. this analysis to a constitutional law
federal jurisdiction § case U.S.C. There has created
or in state courts. been in a local right federal constitutional lo- ordinance which addresses
government procedures. There is
cal merit board in the cited would
nothing ordinance objective legal
meet the test of reasonable- put that a
ness to the official notice
disagreement the merit at the board con-
time would amount to unconstitutional clearly does es-
duct. ordinance rights which are consistent with
tablish v. analysis found in Section Mumford (6th Cir.1993).
Zieba,
Accordingly, clearly in the of a absence
recognized right constitutional which was by ap- manner
established directed
plicable precedent, federal Jefferson Coun-
ty Judge Armstrong qualified entitled
immunity. It appear would that at the he was in the acting
time best interests county and department the corrections regard very difficult employment Armstrong, Bishop
matter. and Karsner qualified
are entitled to the defense of
immunity. CEPERO;
Ineido Donald Hon. Smith,
G. Administrative Law
Judge, Appellants,
FABRICATED METALS CORPORA-
TION; Compensa- and Workers’ Board, Appellees.
tion
No. 2002-SC-1068-WC.
Supreme Kentucky. Court 22, 2004.
fen) and returned to work. He continued to work until March 1998. 30, 1997,
On Appellant December saw Dr. Louise Box and told her that he had years broken his knee ago three while practicing martial in arts which rе- sulted wheelchair confinement for three Although surgery months. had been rec- ommended, it performed. was never He did not mention the work-related accident that occurred one week earlier. Dr. Box Appellant referred to the office of Drs. Loeb, Leonard and Thomas ortho- pedic surgeons. Appellant saw January
1998, approximately three weeks after the work-related accident. did not mention that accident but described a twisting valgus injury that occurred while practicing martial Cuba two and one-half earlier. He told Dr. Brentley Smith, P. Sampson, Smith & that his knee was swollen painful after Slechter, PLLC, Louisville, KY, Counsel the martial arts that he had spent for Cepero. Ineido two months in a wheelchair, and that he Devlin, Louisville, KY, Judson F. Coun- experienced had “good days days” and bad Appellee sel for Corpo- Fabricated Metals since that Goddy diagnosed time. Dr. Ap- ration. pellant “disruption of the anterior [ACL], ligament cruciate disruption of lat- Opinion of the Court Justice knee, ligament eral collateral left.” Dr. COOPER. surgically repaired Loeb Appellant’s knee Appellant, Cepero, Ineido a native of on March A surgery second Cuba, has lived in the рerformed 17, 2000, United States since on November after November 1995. He testified that on Appellant’s knee (Appellant worsened. December employed by while worsening testified that the did not result Appellee, Corporation, Fabricated Metals from a second accident but from “the same wire, tangled feet became causing problem.”) During surgery, the second him to fall bump against his left Dr. Loeb reconstructed ACL employer cabinet. His him part referred and removed of his medial meniscus. Occupational CARITAS Health Center. Dr. injuries Loeb testified that to the med- CARITAS’s medical records rеflect ial meniscus and typically ACL are caused Appellant gave of falling by valgus-type injuries in which the ankle hurting his left knee at work. away Examina- is forced from the midline of the tion of the knee that it body, revealed was stable thus pushing leg the lower outward reason, and not swollen. The diagnosis was contu- and the knee inward. For this sion and itself, strain of the left knee. Appellant repair because a tom cannot ACL he pain (Ibupro- was treated with medication Appellant’s present attributed the cause of sition, the occurrence disability Appellant denied to the martial arts аccident that injury in prior Cuba. occurred Cuba: ACL, your you tear tear you [W]hen injured in Q. you ever been Have *3 awhile, it you get can for but ac- sporting of or recreational kind I repair re-tear. just doesn’t So tivities? was, injury inciting have to A. No. history gave on the he to at least based in in Q. you sports involvеd were Box and Dr. was that both Dr. injure you yourself? ever injured apparent- originally he this knee ly in Cuba. A. No. Appel- David examined 1997, 23, Q. you had Before December 2, 2001, February
lant referral injured any kind your knee ever Appellant’s attorney. from injury? of accident testify, findings did not but his and conclu- A. No. form a presented sions were the 23, 1997, you Q. had Before December only medical refers to report. your had treatment for ever medical the of the December left knee? no work-related accident and makes men- twisting valgus injury Ap- tion of the A. No. Box
pellant had described to Drs. However, when confrоnted with Goddy. Unsurprisingly, at- Goddy’s containing the injury tributed Appellant’s entirely to injury, Appellant the claimed martial the work-related accident. injury had occurred “fifteen the 2001, 27, On Dr. Ellen Ballard flatly ago” “no deal.” He big and was Appellant examined on behalf of Fabricat- months a wheel- spending denied two еd Metals. She testified that chair. solely knee injury attributed his to the at During direct examination the formal specifically 1997 work-related accident that the hearing, Appellant again asserted any prior injury denied to his left knee. injury “when I a martial arts occurred was Based on prepared shе had a cross- boy, big During it’s no deal.” the cause of his attributing examination, suggested he because disability injury. to the work-related barrier,” both Drs. Box and “language However, when shown the records of Drs. the time frame had misunderstood at deposition, Box and her she again injury. of his When asked previous changed thаt the her and testified had months in a spent whether he two injury likely than not” was caused “more wheelchair, replied: he by the martial arts in Cuba. accident She agreed Dr. Loeb that a val- twisting with maybe I in the it’s one wheelchair ... gus injury “[cjlassieally associated half, not maybe complete and a month ligаment, an the injury medial they Maybe put two me months.... and meniscus.” ACL walking, for not because wheelchair go twice, damage more before we first at a dis- don’t Appellant testified But I competition. That’s it. covery May then deposition hurt, swell, It big think no again hearing at the formal before the it’s deal.... (ALJ) big my But it. on Au- knеe. that’s It’s Administrative Law During discovery problem. gust depo- also described his December The issue whether that caused 23, 1997, injury big as “no deal” and testi- disruption of the anterior and lateral only fied that he went to at CARITAS ligaments collateral left employer. direction of his When asked knee, physicians which all of the identified why he did not tell Drs. Box or of Appellant’s present as the cause disabil about the work-related he insisted ity. question ‘Where the issue is one that he had described the both properly province falls within the doctors and must have misunder- experts, may the fact-finder stood him becausе of the aforementioned disregard uncontradicted conclusion of *4 “language barrier.” expert reach a medical different Fox, Magic Ky., Co. v. Despite contradictory conclusion.” Coal Appellant’s testi- 88, (2000) mony (citing Mengel about medical 19 96 v. the ALJ S.W.3d prob- Hawaiian-Tropic concluded that left knee Northwest & Cent. Dis Inc., by tribs., 184, lems Ky., were caused the accident that 618 S.W.2d 186 23, 1997, explain- (1981)). occurred on December course, Of there were contradic ing: conclusions, tory some based on an evidence,
In light of all this accurate and others based on an the Adminis- Judge history. trative Lаw did find Plaintiff inaccurate Board concluded to be regarding opinions credible the circum- expressed that the as to causation 23, stances of his on December reports the medical of Drs. supported by testimony sufficient and Ballard were not of “fitness [sic] of Dr. and the to induce conviction in the minds of rea Occupational from CARITAS opinions sonable men” because those relied Center, Health as well as Dr. Ballard’s incomplete upon inaccurate or information examination, original findings on the Ad- by Appellant during their re furnished ministrative Law does spective independent medical examina the Plaintiffs current left tions. problems by inju- were caused the work this, cases such as where is irre- [I]n 23,1997. ry on December that a physician’s regard- futable Reversing, Compensation the Workers’ is ing corrupt work-related causation unanimously Board held that ALJ’s it being substantially due to inaccurate sup- conclusion as to causation was not largely any opinion incomplete, gen- or ported by substantial evidence. The Court on the physician erated issue of Appeals affirmed. causation cannot constitute predicated evidence. Medical evi
“Substantial еvidence means
such
deficient infor-
upon
erroneous or
dence of substance and relevant conse
unsupported
completely
mation that
quence
fitness to
convic
having the
induce
can
by any other
nev-
credible
tion in
minds of
men.”
reasonable
er,
view,
reasonably prоbable.
in our
Co.,
be
Smyzer
Ky.,
v. B.F. Goodrich Chem.
Furthermore,
(1971)
ruling
(citation
permit
to
law
367,
369
omit
S.W.2d
ted).
evidence that
to stand based
such
finding
The ALJ’s
reliable, probative
is not
and material
was
regarding
credible
the circumstances
fundamentally unjust.
be
would
We
imma
December
opinions of
conclude the
terial. Nо one claims that the
therefore
work-relat
and,
degree,
limited
ed
charac
himself
deal,”
Ballard on
big
opinions
terized as
occur.
earliest
of Dr.
causa-
“no
assume, instead, that
tion,
Dr. Chan-
up
gery.
do not
as substantial
We
measure
history.
evidence,
unaware
garis
and it
error for the ALJ
was
tо
their flawed
blindly
adopt
elect
we affirm
decision
Accordingly,
support any ruling
of law.
conclusions
Appeals.
the Court
v.
Metals
No.
Cepero
Corp.,
Fabricated
JOHNSTONE,
GRAVES,
01-00361,
(Ky.
slip op.
18-19
Workers’
KELLER, JJ., concur.
2002).
Baptist
W.
Comp. Bd. Mar.
See
Ky.,
v.
687-
Hosp. Kelly,
827 S.W.2d
WINTERSHEIMER,
J.,
dissents
(1992) (board’s
are
appellate decisions
C.J.,
LAMBERT,
separate opinion, with
construing
errors in
statutes
reviewed for
STUMBO, J.,
dissenting
joining
assessing
or for errors
precedent
opinion.
gross
flagrant
evidence “so
as to cause
Opinion by Justice
Dissenting
added).
”)
injustice
(emphasis
Osborne
Cf.
WINTERSHEIMER.
Ky.,
Pepsi-Cola,
816 S.W.2d
ma-
I must
from the
respectfully dissent
(“If
(1991)
im
*5
history
sufficiently
the
is
the
jority opinion because the award of
may disregard
peached, the trier of fact
supported
Law
Administrative
all,
opinions
the
based on it. After
the
and it
not
by substantial evidence
should
not rest
the
own
opinion does
on
doctor’s
appeal.
on
The deci-
have been disturbed
knowledge,
prediсate
an essential
to make
the
by
of
ALJ was reversed
sion
the
conclusive.”) (ci
testimony
uncontradicted
Compensation Board and that
Workers’
omitted), superseded by
tations
statute
opinion
an
of a
reversal was affirmed
grounds
other
as stated in Smith v. Dixie
Appeals.
of
of
panel
the Court
(1995).
Co.,
Ky.,
Fuel
900
612
S.W.2d
If
is supported
the decision
the ALJ
infer
Dr.
would have us
that
probative
by any
evidence
Changaris
history
have
must
known
the
value,
appeal.
it
not be
may
reversed
given
Goddy
report
to Dr.
because his
Francis, Ky.,
Special Fund v.
708 S.W.2d
opinion
states that his
as to
is
causation
Co.,
(1986); Newberg v. Armour Food
641
сlient
“[biased
[sic]
(1992).
ALJ,
The
Ky., 834
172
as
S.W.2d
records,
physical
and
examination.” How-
fact-finder,
authority to
has sole
determine
ever,
Dr.
not
in this
testify
substance,
in-
weight, credibility,
and
the
case and his medical
does not men-
report
the
ferences to be drawn from
evidence.
tion either Dr.
or
true
Goddy
Foods,
Burkhardt, Ky.,
Paramount
Inc. v.
history.
report
only
The
refers
(1985).
conflicting
impairment solely due the work relat- ed of 12-23-97.” This 'Statement is Although Dr. Changaris’ report does not support evidence to the award. specifically prior mention the martial аrts The Board and the of Appeals, Court how- injury, I reasonably cannot infer that he ever, found that in rendering opinion, his failed to review it or consider it. The first Dr. Changaris was never apprised of the paragraph of Goddy’s Dr. prior martial arts injury and thus following: noted the concluded his opinion was not reliable. practitioner arts, A of martial some 2- Fabricated Metals states there is no years ago while still a resident 1/2 record that Dr. Cuba, [Cepero] twisting sustained a vul- had the Goddy. from Dr. I dis- gas injury to the left Following knee. agree. that, he had in- swelling marked In report, states, Dr. “The flammation in the spent knee аnd some began having problems client with his knee two months in a wheelchair. and was evaluated on 1-15-98 Considering Thomas My Loeb.” review of taken the record Loeb, Changaris indicates that Dr. from Goddy, January report, not Dr. performed proper fully the evaluation on 15th. inference is that he was awаre Cepero’s Loeb stated in deposition part- prior that his martial arts After ner, record, took the initial careful review of the I must con- Cepero saw again February clude and award of the because Dr. Goddy doing was not supported by ACL ALJ was substantial evi- dence and should have beеn disturbed appeal.
LAMBERT, C.J., STUMBO, J., join
this dissent.
Bobby MUNCY, Appellant, R. KENTUCKY, OF
COMMONWEALTH
Appellee.
No. 2002-SC-0255-MR. Kentucky. Court of
Supreme notes that “[Dr. Loeb—read related. Based on testimony, the rec- Dr. Goddy] diagnosed the client with a ords from Caritas Occupational Health disruption ligament, anterior cruciate dis- Center, Changaris, ruption lateral collateral ligament of the Ballard, initial оf Dr. the ALJ left knee and medical meniscus tear.” Cepero’s found that present disability from Also, recommends “progressive the left knee was caused by the work- resistive exercises” and states that Cepero related at Fabricated Metals. He “probably a candidate for and ACL re- granted benefits based on perma- a 10% construction.” Dr. Changaris observes partial nent disability rating.