In Hicks v. R & J Well Service, No. 2007-CA-002609-WC, a recent Court of Appeals decision designated not to be published, Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice, issued a unique concurring opinion specifically addressing the ALJ’s interpretation of the evidence relative to whether the claimant suffered a work-related injury as defined by KRS 342.0011.  In criticizing the ALJ’s conclusions Judge Graves referenced King Draco, Richard the Lionhearted, Columbus and Pizarro. Judge Graves’ opinion is excerpted below:

 

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.”

 

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