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Workers’
Compensation Board
OPINION ENTERED: August 11, 2017
CLAIM NO. 201599086
LEXINGTON FAYETTE URBAN COUNTY GOVERNMENT PETITIONER
VS.
APPEAL
FROM HON. GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE
JOHN BAKER
AND HON GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Lexington
Fayette Urban County Government (“LFUCG”) appeals from the Interlocutory Order
and Award dated October 26, 2015; the Order on Reconsideration dated December
3, 2015; the Order and Award dated January 6, 2017; and the Order on
Reconsideration dated March 22, 2017 rendered by Hon. Grant S. Roark,
Administrative Law Judge (“ALJ”). The
ALJ awarded John Baker (“Baker”) temporary total disability (“TTD”) benefits,
permanent partial disability benefits and medical benefits for left carpal
tunnel syndrome. LFUCG argues the award
is not supported by substantial evidence, the ALJ improperly took judicial
notice of material facts, and the burden of proof was erroneously shifted. For the reasons set forth herein, we affirm.
Baker
was employed as a heavy equipment operator with LFUCG. He testified he regularly used a Bobcat,
forklift, and front-end loader in the course of his employment. He began to develop pain, numbness and
tingling in his right hand in 2010. He
was initially treated by Dr. John Gilbert of the Kentucky Pain Center, and
eventually underwent a right carpal tunnel release procedure in 2011. In 2014, Baker began to experience similar
symptoms in his left hand. He returned
to Dr. Gilbert for treatment.
Dr.
Ronald Burgess conducted an independent medical evaluation (“IME”) on May 14,
2014. Dr. Burgess relied upon EMG-NC
studies to conclude Baker suffered severe left carpal tunnel syndrome. He recommended he undergo a left carpal
tunnel release procedure, but did not believe Baker’s work activities caused
his condition. At a deposition, Dr.
Burgess explained Baker’s work activities were not sufficiently repetitive or
forceful enough to be a significant factor in the development of his carpal
tunnel condition. Instead, Dr. Burgess
attributed Baker’s condition to his obesity and hyperthyroidism.
Dr.
James Owen conducted an IME on May 7, 2015. He diagnosed left carpal tunnel syndrome and
opined the condition was caused by Baker’s work. Dr. Owen explained Baker operates different
types of heavy equipment, “all of which require pinching, gripping, and fine
and gross manipulation of the hands.”
Dr. Owen also noted Baker has “no other significant predisposing factor.”
In
the October 26, 2015 Interlocutory Opinion and Award, the ALJ determined
Baker’s left carpal tunnel syndrome is work-related. He noted the disagreement between Drs.
Burgess and Owen regarding the contribution of Baker’s obesity and
hyperthyroidism. However, the ALJ was
more persuaded by Dr. Owen. The ALJ
explained his disagreement with Dr. Burgess that Baker’s work did not involve
vibratory tools: “[T]he ALJ takes judicial notice that heavy equipment
operating, such as using a bobcat, requires bilateral gripping of the operating
levers/joysticks, which vibrate as the equipment is running.” On this basis, the ALJ concluded Baker’s left
carpal tunnel syndrome is work-related and awarded TTD benefits and medical
benefits.
LFUCG
petitioned for reconsideration and argued the ALJ improperly took judicial
notice of the fact heavy equipment operation involves vibrating hand levers and
controls. The ALJ denied the petition in
an Order dated December 3, 2015.
Baker underwent a left carpal tunnel
release procedure thereafter. Dr.
Richard DuBou examined him on July 28, 2016, following his surgery. He diagnosed left carpal tunnel syndrome but
did not attribute the condition to Baker’s work. Rather, he opined the condition was caused by
a combination of obesity and hyperthyroidism.
In the January 6, 2017 Opinion and Order,
the ALJ relied upon a 2% impairment rating assigned by Dr. Dubou and awarded
permanent partial disability benefits. He
further determined Baker is unable to return to his pre-injury employment. As such, the award was enhanced by the three
multiplier.
LFUCG petitioned for reconsideration, and
again argued it was error to determine Baker’s work required the use of
vibratory tools. It also asserted Baker
is not entitled to enhanced benefits.
The ALJ denied the petition.
On appeal, LFUCG first argues the ALJ erred
in taking judicial notice of the fact heavy equipment operation requires the
use of vibrating hand controls. We
disagree. First, the ALJ took judicial
notice of the fact heavy equipment involves the use of hand controls which
vibrate. We cannot disagree with the
ALJ’s conclusion that this is a generally known fact within the state of
Kentucky. KRE 201(b). Significantly, LFUCG made no attempt to
challenge the fact heavy equipment is operated through the use of hand controls
which vibrate when the machine is being operated.
However, more importantly, LFUCG overstates
the import of the ALJ’s statement. As
LFUCG argues, the ALJ’s statement is required to link Dr. Owen’s opinion and a
finding of causation. On the contrary,
Dr. Owen specifically stated Baker’s work involved gripping, pinching and
manipulation of the hands. Dr. Owen
attributed Baker’s condition directly to his work activities, even without the
ALJ’s taking of judicial notice. No
additional findings of fact were necessary to bridge a gap between Dr. Owen’s
medical opinion and Baker’s work. As
such, if the ALJ committed any error in taking judicial notice, we believe it
was harmless.
In an argument that largely reiterates its
first assertion of error, LFUCG next claims there is no medical opinion in the
record opining Baker’s operation of heavy equipment caused his carpal tunnel
syndrome. It claims the ALJ improperly
created a theory regarding vibrating machinery, which was not supported by any
medical opinion. Again, we
disagree. Dr. Owen directly attributed
Baker’s carpal tunnel syndrome to his work activities. This medical opinion constitutes the
requisite substantial evidence to support the award. Special Fund v.
Francis, 708 S.W.2d 641 (Ky. 1986).
Next, LFUCG argues the ALJ improperly
shifted the burden of proof to the defendant to establish causation. It argues the ALJ merely stated he was more
persuaded by Dr. Owen’s opinion of causation, and explained why he discredited
Dr. Burgess’ opinion. However, there is
no error in the fact the ALJ explained his reasons for not relying on Dr.
Burgess. The ALJ provided a cogent reason
why he was not persuaded by Dr. Burgess’ opinion: that is, because Dr. Burgess
based his opinion on the conclusion Baker’s work involved no use of vibratory
equipment.
Again, by focusing on a discussion of
vibratory equipment versus vibrating hand controls, LFUCG ignores the fact Dr.
Owen directly attributed Baker’s work to his carpal tunnel syndrome. The ALJ was not required to provide a reason
why he discredited Dr. Burgess’ opinion, though he did. However, notwithstanding the ALJ’s
discussion, the fact remains the award is supported by Dr. Owen’s opinion,
which constitutes substantial evidence.
As such, we are without authority to disturb the award. Whittaker
v. Rowland, 998 S.W.2d 479 (Ky. 1999).
Finally,
LFUCG claims it has been denied due process by the fact Baker was awarded TTD
benefits pursuant to an interlocutory award, from which it has no direct appeal
and which cannot be recovered if ultimately reversed. As LFUCG notes, this argument has been
considered and denied by the Kentucky Supreme Court in Ramada Inn v. Thomas,
892 S.W.2d 593 (Ky. 1995) and Nursing Home v. Parker, 86 S.W. 3d 424
(Ky. App. 1999). We are without
authority to overrule these cases, as LFUCG requests.
Accordingly,
the Interlocutory Order and Award dated October 26, 2015; the Order on
Reconsideration dated December 3, 2015; the Order and Award dated January 6,
2017; and the Order on Reconsideration dated March 22, 2017 rendered by Hon.
Grant S. Roark, Administrative Law Judge, are hereby AFFIRMED.
STIVERS, MEMBER, CONCURS.
ALVEY, CHAIRMAN, NOT
SITTING.
COUNSEL
FOR PETITIONER:
HON THOMAS FERRERI
614 W MAIN ST, SUITE 5500
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON MCKINNLEY MORGAN
921 S MAIN ST
LONDON, KY 40741
ADMINISTRATIVE
LAW JUDGE:
HON GRANT S. ROARK
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
