IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

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ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: FEBRUARY 19, 2015 

NOT TO BE PUBLISHED 

$511yrrtur Court of elfirttfuritv 

2014-SC-000225-WC 

LOUISVILLE PAVING COMPANY APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2013-CA-002062-WC 

WORKERS' COMPENSATION NO. 10-00820 

MICHAEL JACKSON; R. ELSWICK TRUCKING; 

JAMES LYNN, D/B/A J. LYNN TRUCKING; 

HONORABLE THOMAS POLITES, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Louisville Paving Company, appeals a decision of the 

Administrative Law Judge ("AI.,J") which held that Kentucky has jurisdiction 

over Michael Jackson's workers' compensation claim. Louisville Paving 

contends that Kentucky does not have jurisdiction over the claim because 

certain evidence indicates the work-related injury occurred in Indiana. For the 

below stated reasons we affirm the Court of Appeals. 

At the time of the work-related injury, Jackson was employed by R. 

Elswick Trucking LLC, a business located in New Albany, Indiana. Elswick 

Trucking was hired by J. Lynn Trucking to haul materials for Louisville Paving 
on June 29, 2010. That morning, Jackson picked up his truck in New Albany, 

and transported three loads of rock between a quarry in Louisville and an 

asphalt plant in Bullitt County. In the afternoon, Jackson transported four 

loads of asphalt from the quarry in Louisville to a site in Oldham County. 

Jackson alleges that all of the asphalt would not come out of his truck 

bed when transferred to a paver. He stated that after each load he had to 

climb into the back of his truck and clean out the bed with a shovel. Louisville 

Paving refutes Jackson's claim that he cleaned the truck after each load 

because it had a policy which prohibited drivers from performing that task. It 

provides a backhoe for drivers to clean the bed if necessary. Additionally, 

Louisville Paving also provides a soap substance for drivers to coat their truck 

bed which helps prevent the asphalt from sticking. After the last load of 

asphalt was delivered, Jackson returned to Elswick Trucking in New Albany. 

At the trucking company, Jackson cleaned out the truck bed for the last time, 

a task which took about fifteen minutes and involved chipping away hardened 

asphalt with a shovel. 

Jackson states that he did not feel any discomfort while working but that 

his back began to tighten up once he got home. The next morning was the first 

time he felt pain. The pain was so severe that he could not get out of bed or 

report to work. Jackson was treated at a hospital that night and three days 

later visited his family physician. Jackson ultimately underwent surgery to 

treat a low back strain. He has not returned to work since the work-related 

injury. 

2 
Jackson filed a claim for workers' compensation. The workers' 

compensation insurance, which Elswick Trucking maintained at the time of 

Jackson's injury, only covered injuries which occurred in Indiana. Therefore, 

the Uninsured Employers' Fund was added as a party. Louisville Paving was 

also added as a party because Elswick Trucking was acting as its subcontractor. 

The claim was first assigned to ALJ Richard Joiner. AU Joiner 

dismissed Jackson's claim finding that Kentucky did not have jurisdiction 

because he found the work-related injury occurred in Indiana. On appeal, the 

Workers' Compensation Board reversed and remanded the matter for ALJ 

Joiner to provide further analysis and facts for his conclusion. Before a new 

opinion could be rendered, the matter was reassigned to the current ALJ. 

After an evidentiary hearing, the ALJ determined that Kentucky had 

jurisdiction over Jackson's claim. In so finding, he stated: 

[t]he ALJ is convinced that limited shoveling of asphalt in order to 

keep the truck bed cleaned is part of [Jackson's] job and while the 

ALJ does not believe that [Jackson] did an inordinate amount of 

asphalt shoveling on the day of injury, the ALJ is convinced that 

[Jackson] did in fact have to shovel asphalt during the afternoon of 

the day of injury in Kentucky, as well as in Indiana at the end of 

the day. 

Given the finding that [Jackson] shoveled asphalt in Kentucky 

on the date of injury, when viewed in light of the unrebutted 

medical testimony that [Jackson's] injury was caused by shoveling 

asphalt, it is hereby determined that [Jackson] has suffered an 

injury that is compensable under the Kentucky Workers' 

Compensation Act given that it occurred in Kentucky. 

The ALJ alternatively held that even if the work-related injury occurred in 

Indiana, extraterritorial jurisdiction existed per KRS 342.670. The ALJ 

3 
awarded Jackson temporary total disability benefits, permanent partial 

disability benefits, and medical expenses. Louisville Paving filed a petition for 

reconsideration which was denied. 'The Board and Court of Appeals affirmed, 

and this appeal followed. 

Louisville Paving argues that the AI.,J erred by finding that Kentucky has 

jurisdiction over Jackson's claim because it contends the work-related injury 

occurred in Indiana.' We note that the ALJ has the sole discretion to 

determine the quality, character, and substance of the evidence and may reject 

any testimony and believe or disbelieve various parts of the evidence regardless 

of whether it comes from the same witness or the same party's proof. 

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Since Jackson 

had the burden of proof, and prevailed before the ALJ, the question on appeal 

is whether the evidence supported the finding in his favor. Wolf Creek 

Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). "Although a party may 

note evidence which would have supported a conclusion contrary to the ALJ's 

decision, such evidence is not an adequate basis for reversal on appeal. The 

crux of the inquiry on appeal is whether the finding which was made is so 

unreasonable under the evidence that it must be viewed as erroneous as a 

matter of law." Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 

(Ky. 2000). 

1Because we find that Kentucky has jurisdiction over this claim, we do not address 

Louisville Paving's argument regarding extraterritorial jurisdiction. 

4 
The ALJ's finding that at least part of Jackson's work-related injury 

occurred in Kentucky is supported by substantial evidence. Medical testimony 

indicated that Jackson's injury was caused by shoveling asphalt and the ALJ 

believed Jackson's testimony that he performed that task not only at the-end of 

his shift in Indiana, but at least several times while in Kentucky. The ALJ was 

within his discretion to find that testimony credible. While there is evidence 

that Louisville Paving prohibited drivers from cleaning out the truck beds for 

safety reasons and provided them a soap substance to keep the asphalt from 

sticking to the truck beds, that alone does not discredit Jackson's testimony. 

The ALJ's findings are not unreasonable, and his finding that Kentucky has 

jurisdiction may not be disturbed. 

For the above stated reasons, we affirm the decision of the Court of 

Appeals. 

Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., 

sitting. All concur. 

5 
COUNSEL FOR APPELLANT, 

LOUISVILLE PAVING COMPANY: 

Douglas Anthony U'Sellis 

COUNSEL FOR APPELLEE, 

MICHAEL JACKSON: 

Charles E. Jennings 

COUNSEL FOR APPELLEE, 

R. ELSWICK TRUCKING: 

Judson Fuller Devlin 

COUNSEL FOR APPELLEE, 

JAMES LYNN, D/B/A J. LYNN TRUCKING: 

James R. Wagoner