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Workers’
Compensation Board
OPINION ENTERED: June 23, 2017
CLAIM NO. 201600540
BRIAN STROZZO PETITIONER
VS. APPEAL FROM HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE
CESA CONTRACTORS
AND HON. JONATHAN R. WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Brian Strozzo (“Strozzo”) appeals from the December 19, 2015 Opinion
and Order and the February 13, 2016 Order on Reconsideration rendered by Hon.
Jonathan R. Weatherby, Administrative Law Judge (“ALJ”) dismissing his
claim. The ALJ determined Strozzo’s
bilateral hypothenar hammer syndrome predated his work at Cesa Contractors
(“Cesa”), and is not work-related.
Strozzo appeals, raising several arguments relating to the ALJ’s
analysis of the alleged cumulative trauma injury. However, because there is sufficient evidence
to support the ALJ’s conclusion the condition is not work-related, and no
contrary result is compelled, we affirm.
Strozzo worked for Cesa
from September 28, 2015 through December 15, 2015 as a laborer on concrete
jobs. He used vibratory tools during his
employment, though there was conflicting testimony as to how often. He testified he began experiencing numbness
in his fingertips prior to his employment with Cesa, though he was under no
work restrictions. On August 5, 2014, he
visited his primary care physician, Dr. Melissa Purvis, and complained of
severe pain in his right index finger.
He inquired whether the pain could be the result of concrete poisoning,
because he worked with concrete in his prior employment. Dr. Purvis found infection and prescribed
medication. She also referred Strozzo to
an orthopedic specialist for drainage.
Strozzo returned to Dr.
Purvis on July 16, 2015, again complaining of possible concrete poisoning
manifesting as pain and swelling in the index and middle finger of his right
hand. Dr. Purvis recommended oral
steroids to alleviate the pain and swelling in his fingers, which she
characterized as mild cellulitis.
Strozzo returned shortly thereafter, on July 27, 2015, with pain and swelling
in his left hand. He again informed Dr.
Purvis that he had been working with concrete and suspected concrete
poisoning. Dr. Purvis prescribed
steroids and antibiotics.
At a December 8, 2015
visit with Dr. Purvis, Strozzo’s fingertips had not fully healed and were red,
blue and swollen. Strozzo explained he
had been wrapping his fingers when working with concrete, but wondered if he
had wrapped them too tightly. Dr. Purvis
recommended a vascular study to rule out a circulatory disorder. In a January 12, 2016 office record, Dr.
Purvis noted an arteriogram showed decreased blood flow to the fingers.
Meanwhile, Strozzo had
been referred to Dr. Scott Sanders, a vascular surgeon. At a December 29, 2015 office visit with Dr.
Sanders’ assistant, Strozzo presented with wounds on his fingers. He returned on February 1, 2016 and February
18, 2016 with worsening of the condition.
Dr. Sanders’ February 18, 2016 office note indicates Strozzo was being
evaluated for hypothenar hammer syndrome.
Dr. Sanders eventually
referred Strozzo to Dr. Scott Farner, a hand surgeon. Dr. Farner agreed with the diagnosis of
bilateral hypothenar hammer syndrome. He
performed a left ulnar artery reconstruction at the wrist and left artery
sympathectomy on April 6, 2016. A
similar procedure was performed on the right hand on July 14, 2016. At an October 4, 2016 follow-up visit,
Strozzo reported some continuing pain and was prescribed nitro paste. He was also prohibited from using vibratory
tools.
Dr. Thomas Gabriel conducted
an independent medical evaluation on August 15, 2016. Dr. Gabriel diagnosed bilateral hypothenar
hammer syndrome based on the January 2016 arteriogram. Dr. Gabriel opined Strozzo’s condition was
caused by a number of risk factors including arteriosclerotic disease, smoking
and use of vibratory tools. He further
opined Strozzo was not yet at maximum medical improvement from his right wrist
surgery.
Cesa submitted the
depositions of its employees Mike Stegman, Pat Guess, and Denny Anderson. Each of these employees provided testimony
regarding how often Strozzo used vibratory tools during the three months he
worked at Cesa.
Dr. Sanders was deposed
prior to the final hearing. He
characterized hypothenar hammer syndrome as a traumatic repetitive injury of
the artery. Dr. Sanders explained the
use of vibratory tools can provide the type of repetitive mini-traumas to cause
the condition, though he was unaware of research establishing the quantity of
exposure necessary.
Dr. Sanders was questioned
about the cause of Strozzo’s condition, which he characterized as a “disease of
the vessel or small vessel disease.”
When asked if the condition is caused or significantly contributed to by
the use of vibratory tools, he responded “potentially, but you can’t say 100
percent”. Dr. Sanders noted Strozzo’s
trauma to his fingertips, including ulcers that were not healing well. The vascular condition would prohibit or
delay the healing of the ulcers, but could also present as a symptom of the
condition. However, Dr. Sanders could
not state with certainty which condition developed first. Dr. Sanders also explained that hypothenar
hammer syndrome is an occlusion of the artery, but that he could not say when
this occurred.
The ALJ made the following
findings of fact and conclusions of law:
[Strozzo]
worked for [Cesa] for less than three months and the medical records indicate
that his symptoms predate his work for [Cesa].
The ALJ is persuaded by the records of Dr. Sanders.
The
records of Dr. Purvis indicate that [Strozzo] was seen on August 5, 2014 with
complaints of severe pain in his right index finger, which he related to
concrete poisoning. He reported at that
time that he had been laying concrete for the last month and that over the last
week his fingers had become warm to the touch, swollen, and had developed an
ulcer on the tip.
Dr.
Sanders opined that arterial occlusion would have been a pre-cursor to the
ulceration of the fingertips which indicates that [Strozzo’s] symptoms were
present long before his six week period of employment with [Cesa]. The records also indicate that [Strozzo] was
seen on March 29, 2016, and stated that the onset of his symptoms started 10
months prior. This date would pre-date
[Strozzo’s] employment with [Cesa].
The
ALJ finds based upon the foregoing that [Strozzo] did not sustain an injury
that has been shown to be causally related to his work for [Cesa].
The ALJ dismissed the
claim. Strozzo petitioned for
reconsideration, requesting further findings of fact about the date of
manifestation of his cumulative trauma injury and whether his condition was
brought into disabling reality by his work at Cesa. Cesa petitioned for reconsideration,
requesting correction of a clerical error and findings of fact concerning notice
and statute of limitations.
In a February 13, 2017 Order
on Reconsideration, the ALJ corrected a clerical error and entered the
following additional findings of fact:
The
ALJ finds that [Strozzo’s] claim became manifest upon his August 5, 2014 visit
to Dr. Purvis wherein he related that his symptoms were related to laying
concrete. The ALJ therefore finds that
[Strozzo’s] claim arose prior to his employment with [Cesa].
The
ALJ finds that [Strozzo] began working for [Cesa] on September 28, 2015, almost
one year following the manifestation date of the injury. The ALJ therefore finds that notice was not
given as soon as practicable following the established manifestation date and
therefore declines to disturb the prior ruling.
Strozzo now appeals. He argues the fact his symptoms arose prior
to his employment with Cesa does not mandate dismissal of his claim. He also argues the ALJ erred in failing to
enter findings of fact as to whether he sustained injurious exposure to
vibratory equipment while working for Cesa.
Finally, he claims the ALJ’s date of manifestation is erroneous, and the
ALJ misunderstood the medical testimony.
We begin with a discussion
of the ALJ’s determination that Strozzo “did not sustain an injury which has
been shown to be causally related to his work” at Cesa. Strozzo has only indirectly attacked this
finding. However, if supported by
substantial evidence, this finding is determinative and renders the remainder
of his arguments moot.
As the claimant, Strozzo
bore the burden of establishing he suffered a “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.”
KRS 342.0011(1). The ALJ stated
he relied upon Dr. Sanders’ opinion to conclude Strozzo did not sustain a
work-related injury.
Dr. Sanders
characterized hypothenar hammer syndrome as a “traumatic repetitive injury of
the artery”. Although it is associated
with repetitive trauma, it can occasionally result from a single trauma. Dr. Sanders explained at length the two
problems Strozzo experienced in his hands and fingers. Strozzo had non-healing ulcers on his hands,
which caused him to seek treatment.
Meanwhile, the arteriogram confirmed the reduced blood flow in his
hands. However, Dr. Sanders could not
state with certainty how Strozzo’s symptoms developed to the current
condition. Stated otherwise, Dr. Sanders
could not conclude whether Strozzo developed sores and ulcers because of the
reduced blood flow to his hands, or if the sores and ulcers were caused by
external factors and were unable to heal due to reduced blood flow in his
hands. Dr. Sanders theorized that
Strozzo developed the ulcers from an external source or trauma. He also reiterated several times during this
testimony that he “could not be positive” or state this theory with
certainty.
The ALJ also found that
Strozzo began experiencing symptoms prior to his employment with Cesa. Dr. Purvis’ records establish Strozzo was
seen for pain and sores on his hands and fingers as early as August 2014 and
continuing through his work with Cesa.
Strozzo bore the burden of establishing
he suffered a work-related cumulative trauma injury. Snawder v. Stice, 576 S.W.2d 276 (Ky.
App. 1979). When considered together, we
conclude this proof constitutes the requisite substantial evidence to support
the ALJ’s conclusion that Strozzo did not suffer a work-related condition. Special Fund v.
Francis, 708 S.W.2d 641 (Ky.
1986). The medical records are clear
that Strozzo suffers hypothenar hammer syndrome and experienced non-healing
ulcers and sores before and during this work at Cesa. Dr. Sanders explained hypothenar hammer
syndrome is an occlusion in the artery which can be caused by repetitive trauma
to the hands caused by vibratory tools.
He further stated that the occlusion in the artery can cause ulcerations
of the fingertips. Dr. Purvis’ records
indicate Strozzo was seen for ulcers on his fingers in August 2014, before he
began working for Cesa. Strozzo
testified he used vibratory tools during prior employment. When considered together, this proof can be
relied upon to conclude Strozzo’s condition developed prior to his employment
with Cesa. This proof can be interpreted
to establish that Strozzo suffered symptoms before and during his employment
with Cesa, which were not caused by his employment with Cesa.
The ALJ is afforded wide
discretion in the interpretation of the evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (Ky. 1993).
Strozzo submitted proof which could support a finding that his work at Cesa, at
the very least, aggravated a pre-existing condition. Even Dr. Sanders acknowledged the possibility
he developed sores through his work with concrete that would not heal due to
his vascular condition. However, Dr.
Sanders also explained this theory was not certain. The ALJ was entitled to afford this
uncertainty weight. Whittaker v. Rowland, 998 S.W.2d 479, 481
(Ky. 1999). It is not the function of
this Board to reweigh the proof. For
this reason, we cannot conclude the evidence compels a result in Strozzo’s
favor. Wolf Creek Collieries v. Crum,
673 S.W.2d 735 (Ky. App. 1984).
Strozzo has raised several
arguments concerning the ALJ’s consideration of his cumulative trauma claim,
including the date of manifestation. We
need not consider these arguments because we conclude the evidence is sufficient
to support the conclusion Strozzo failed to establish a work-related
injury. For this reason, we need not
analyze whether the ALJ correctly determined the date of manifestation of the
alleged injury or whether Strozzo’s work at Cesa aggravated his condition. The remainder of his arguments are moot.
For the foregoing reasons,
the December 19, 2015 Opinion and Order and the February 13, 2016 Order on
Reconsideration rendered by Hon. Jonathan R. Weatherby, Administrative Law
Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON CRAIG HOUSMAN
PO BOX 1196
PADUCAH, KY 42002
COUNSEL
FOR RESPONDENT:
HON SAMUEL J BACH
PO BOX 881
HENDERSON, KY 42419
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN R. WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
