Workers’
Compensation Board
OPINION
ENTERED: May 12, 2017
CLAIM NO. 201600388
VELLANCIS C. ROBINSON PETITIONER
VS. APPEAL FROM HON. ROBERT L. SWISHER,
CHIEF ADMINISTRATIVE LAW JUDGE
FORD MOTOR CO./TRUCK PLANT
and HON. ROBERT L. SWISHER,
CHIEF ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Vellancis
Robinson (“Robinson”) appeals from the December 13, 2016, Opinion and Order and
the February 16, 2017, Order overruling Robinson’s Petition for Reconsideration
of Hon. Robert L. Swisher, Chief Administrative Law Judge (“CALJ Swisher”).[1] In
the December 13, 2016, Opinion and Order, CALJ Swisher dismissed Robinson’s
claim for alleged work-related injuries to her right elbow, hand, wrist, and
fingers due to repetitive job duties using a power drill while in the employ of
Ford Motor Company (“Ford”). On appeal, Robinson asserts CALJ Swisher committed
reversible error by dismissing her claim.
The Form
101 alleges that “on or about March 1, 2014,” Robinson sustained injuries to
her right elbow, hand, wrist, and fingers by engaging in “[r]epetitive job
duties using a power drill” while working for Ford. The attached Form 104 indicates
Robinson began working for Ford in February 2014.
Several
medical records of Dr. Tuna Ozyurekoglu at Kleinert Kutz & Associates Hand
Care Center were filed in the record by both parties. Persuasive to CALJ Swisher
were three sets of Dr. Ozyurekoglu’s records. One record, dated March 21, 2014,
indicates Robinson was seen for bilateral hand and wrist pain with an onset of
symptoms two months prior.[2]
Under “History of Present Illness” are the following notations:
35 yo female. R handed.
Pain in both hands and wrists.
She fell last year and was treated of [sic] a
Rt wrist sprain for 3 months.
Complains also LRF trigger.
Rt 1st DC pain.
Lt TFCC pain.
Another persuasive record is Dr.
Ozyurekoglu’s June 15, 2015, record. In this record, the chief complaint is
noted as “T/N Rt hand bil hand pain.” Under “History of Present Illness” is the
following:
36 yo F
RHP
c/o T/N and pain Rt hand
started march [sic] 2014
symtoms [sic] wake the patient up at night
(7/7)
Pain left thumb bace [sic]
bil ring fingers get “lock” [sic]
had recieved [sic] kenalog injections in the
past they help for 2 months
sleeping with a brace
works at Ford
use power drills
The final compelling
record is the June 18, 2015, medical questionnaire completed by Dr. Ozyurekoglu.
In this questionnaire, Dr. Ozyurekoglu described Robinson’s medical condition
as follows:
Pt is s/p Kenalog injections to bilateral
carpal tunnels & bilateral ring fingers on 6-15/17 due to exacerbation of
symptoms. She was placed on one-handed duty only until next ov on 7/1/15. If
one handed duty Ø available, pt to remain off work until 7-1-15.
Importantly,
Dr. Ozyurekoglu checked “no” by the question, “Is the condition due to the
employee’s occupation?”
In the
August 12, 2016, Benefit Review Conference
Order and Memorandum, the following contested issues are listed:
benefits per KRS 342.730, work-relatedness/causation, notice, average weekly
wage, unpaid or contested medical expenses, injury as defined by the ACT,
temporary total disability, and statute of limitations.
In the
December 13, 2016, Opinion and Order, CALJ Swisher set forth the following
findings of fact and conclusions of law:
1. The ALJ finds
the facts as stipulated by the parties.
2. Injury as
defined by the Act; work-relatedness/causation.
Plaintiff has
the burden of proving each of the essential elements of her claim, including that
she is entitled to benefits. Snawder v. Stice, 576 S.W.2d 276
(Ky. App. 1979). As fact finder, the ALJ has the sole authority to determine
the weight, credibility and substance of the evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to
determine all reasonable inferences to be drawn from the evidence. Miller v.
East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson
v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).
The parties have
preserved the inter-related threshold issues of whether plaintiff sustained an
injury as defined by the Act as alleged in her application and whether her
symptoms and complaints are directly and causally related to that injury. In
her application plaintiff contends that she was injured on or about March 1,
2014, performing repetitive job duties using a power drill thereby injuring her
right elbow/hand/wrist and fingers. The parties have submitted evidence from
evaluating physicians Bilkey and Nicoson which, as summarized above, stands for
the proposition that plaintiff’s symptoms and complaints are work-related in
terms of arising from her repetitive work duties. In addition, the employer has
submitted records from its own in-house medical staff which are largely
inconclusive with respect to the issue of work-relatedness/causation other than
a note from Dr. Hart on June 18, 2015, that, having reviewed the case and exam,
he was changing the case to “personal” unless more information were to come to
light about the past cause of the condition.
The
most probative and persuasive evidence, however, is contained in the medical
records from Kleinert & Kutz reflecting the opinions of plaintiff’s
treating orthopedic surgeon, Dr. Tuna. When Dr. Tuna first saw plaintiff on
March 21, 2014, she was complaining of bilateral hand and wrist pain with the
date of onset of symptoms described as “2 months.” This clearly would pre-date
the commencement of plaintiff’s employment with Ford. Moreover, in noting the
history of plaintiff’s present illness, Dr. Tuna reported that plaintiff had
fallen “last year” and was treated for a right wrist sprain for three months.
There is no specific mention of plaintiff’s job duties or that plaintiff became
symptomatic with respect to her bilateral hands and wrist as performing
specific work activities. Significantly, when plaintiff returned on June 15,
2015, complaining of numbness and tingling in her right hand and bilateral hand
pain, she reported that the symptoms started in March of 2014, and there is a
notation “works at Ford, use power drills.” Three days later, however, Dr. Tuna
completed a questionnaire in which he specifically indicated that plaintiff’s
condition is not due to her occupation. None of the medical experts who have
provided reports and expressed opinions in this matter have any greater
understanding of plaintiff’s condition and the cause thereof than the
orthopedic surgeon who has been treating her consistently and continuously from
the beginning, Dr. Tuna. Dr. Tuna was well aware of the fact that plaintiff
worked at Ford and used power drills, but even with that understanding was of
the opinion that plaintiff’s bilateral upper extremity condition was not
work-related. Of note, plaintiff is only contending that her right upper
extremity conditions are work-related. While plaintiff’s right upper extremity has
clearly received the most focal medical treatment including surgery, the fact
remains that she has complained of bilateral symptoms which are reflected in
Dr. Tuna’s notes without any testimony that her job activities at Ford were
particularly stressful with respect to the left hand and wrist. In the view of
the undersigned, this bolsters Dr. Tuna’s opinions that plaintiff’s right upper
extremity symptoms and complaints for which he has provided treatment are not
related to plaintiff’s work activities. The undersigned acknowledges that Drs.
Bilkey and Nicoson are of a contrary opinion. It is unknown whether those
physicians were aware of plaintiff’s prior right wrist sprain and simply found
it not causative or were largely unaware of her prior right wrist injury.
Regardless, however, the undersigned finds the opinion of plaintiff’s treating
orthopedic surgeon ultimately to be more persuasive than that of the hired
evaluators. Accordingly, plaintiff has failed to carry her burden of proving that
she sustained a work-related injury to her right upper extremity by virtue of
repetitive work activity as alleged, and her claim is, therefore, DISMISSED.
In her petition for reconsideration,
Robinson maintained CALJ Swisher misinterpreted the medical and lay evidence
concerning the causation/work-relatedness of the work injury.
In the February 16, 2017, Order
overruling Robinson’s Petition for Reconsideration, CALJ Swisher determined as
follows:
This matter is
before the undersigned Chief Administrative Law Judge for consideration of
plaintiff’s petition for reconsideration of the Opinion and Order of December
13, 2016. Therein, plaintiff contends that the undersigned interpreted medical
and lay evidence with respect to the issue of causation/work-relatedness of the
subject work injury and misread the reports of plaintiff’s treating physician,
Dr. Tuna.
KRS
342.281 provides that an administrative law judge is limited on review on
petition for reconsideration to the correction of errors patently appearing upon
the face of the award, order or decision. The CALJ may not reweigh the evidence
and change findings of facts on petition for reconsideration. Garrett Mining
Co. v. Nye, 122 S.W.3d 513 (Ky. 2003). Having reviewed plaintiff’s petition
for reconsideration, the undersigned notes that it is simply an impermissible
re-argument of the merits of the claim, and the petition for reconsideration
is, therefore, OVERRULED.
On appeal, Robinson argues CALJ Swisher erred by failing to award
benefits for her alleged right upper extremity injury. We affirm.
KRS 342.0011(1) reads, in relevant part,
as follows:
“Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. . . . “Injury” when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury.
As the claimant in a workers’ compensation proceeding, Robinson
had the burden of proving each of the essential elements of his cause of
action, including “injury” as defined by the Workers’ Compensation Act. KRS
342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); and Eck
Miller Transportation Corp. v. Wagers, 833 S.W.2d 854, 858 (Ky. App. 1992).
Since Robinson was unsuccessful in meeting her burden, the question on appeal
is whether the evidence compels a different result. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Compelling
evidence is defined as evidence that is so overwhelming no
reasonable person could reach the same conclusion as the
ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).
In rendering a
decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to
determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the
evidence, reject any testimony, and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness or the same
adversary party’s total proof. Jackson v. General Refractories Co.,
581 S.W.2d 10 (Ky. 1979); Caudill
v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
When reviewing a decision on
appeal, the function of the Board is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not usurp the
ALJ's role as fact-finder by superimposing its own appraisals as to weight and
credibility or by noting other conclusions or reasonable inferences that
otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Here, CALJ Swisher relied upon the
medical records of Dr. Ozyurekoglu recited herein to conclude Robinson failed
to meet her burden of proving she sustained a work-related injury to her right
upper extremity as defined by the Worker’s Compensation Act in KRS 342.0011(1).
As noted by CALJ Swisher, the record includes medical opinions by Drs. Warren
Bilkey and Michael Nicoson that run contrary to Dr. Ozyurekoglu’s opinions on
causation. However, CALJ Swisher has the
discretion to exclusively rely upon Dr. Ozyurekoglu’s opinions, and the fact
Robinson can point to evidence that would have supported a different outcome
than that reached by CALJ Swisher is not an adequate basis to reverse on
appeal. McCloud v. Beth-Elkhorn Corp.,
514 S.W.2d 46 (Ky. 1974). Rather, it must be
shown there was no evidence of substantial probative value to support CALJ
Swisher’s decision to dismiss her claim.
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
In the December 13, 2016, Opinion
and Order, CALJ Swisher set forth a comprehensive analysis of the issue of
“injury” as defined by the Workers’ Compensation Act in KRS 342.0011(1) and the
medical evidence upon which he relied in determining Robinson failed to meet
her burden of proof. As CALJ Swisher’s dismissal of Robinson’s claim is supported
by substantial evidence and the record does not compel a different result, CALJ
Swisher’s dismissal of Robinson’s claim may not be disturbed.
Accordingly, the December 13, 2016,
Opinion and Order and the February 16, 2017, Order overruling Robinson’s
Petition for Reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JOY L BUCHENBERGER
401 W MAIN ST STE 1910
LOUISVILLE KY 40202
COUNSEL
FOR RESPONDENT:
HON ELIZABETH HAHN
401 S FOURTH ST STE 2200
LOUISVILLE KY 40202
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON DOUGLAS W GOTT
657 CHAMBERLIN AVE
FRANKFORT KY 40601