Craig Papineau v. Trans Ash Inc. ( 2021 )

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RENDERED: JUNE 17, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0296-WC
CRAIG PAPINEAU APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2019-CA-0613
WORKERS’ COMPENSATION BOARD
NO. WC-18-00201
TRANS ASH INC.; APPELLEES
HONORABLE CHRISTINA D. HAJJAR,
ADMINISTRATIVE LAW JUDGE;
AND KENTUCKY WORKERS’
COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
REVERSING
Craig Papineau (Mr. Papineau) appeals a decision of the Court of Appeals
that reversed the Workers’ Compensation Board’s (Board) and Administrative
Law Judge’s (ALJ) rulings in his favor. The sole issue to be addressed in this
case is whether the ALJ’s opinion and award of workers’ compensation benefits
to Mr. Papineau was supported by substantial evidence. After review, we
reverse the Court of Appeals and reinstate the ALJ’s opinion and award.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are not in dispute. As of the writing of this opinion,
Mr. Papineau is sixty-six years old with a general education degree. The
entirety of Mr. Papineau’s thirty-five-year career was spent working as a heavy
equipment operator, primarily in the coal mining industry.
From 1981 to 1995 Mr. Papineau worked as a dragline1 operator for
Smith Coal. From 1995 to 1998 he worked as a dragline operator for Black
Diamond Mines. From 1998 to 2013 he worked for himself as a heavy
equipment operator. From June 2013 to July 2014 he worked for GMS as a
heavy equipment operator. Beginning sometime in 2014 until February 2015
he worked for Patriot Coal as a heavy equipment operator and also maintained
a belt line that was nine miles long. His work maintaining the belt line differed
from his work operating heavy machinery in that it required “observation of
[the belt line], repairing anything that breaks, or anything like that.”
Subsequently, from March 2015 until October 2015 he worked for Kiewit as a
heavy equipment operator. Finally, he worked for the employer in this case,
Trans Ash, from October 26, 2015, to November 20, 2015, and then from
February 15, 2016, to November 1, 2016. He did not work for any other
companies between November 20, 2015, and February 15, 2016. He has not
worked anywhere since he ceased working for Trans Ash on November 1, 2016,
and he considers himself retired.
On February 3, 2018, Mr. Papineau filed an application for resolution of
a work-related injury claim (Form 101). In his Form 101, he alleged
cumulative trauma to his lower back and bilateral shoulders,2 and that the
1 A dragline is “a large bucket excavator that is controlled by a system of
pulleys, chains, and ropes that hoist the bucket. Dragline buckets are enormous
machines that can move many tons of dirt, rock, and overburden.”
https://americanmineservices.com/largest-dragline-in-the-world/ (last accessed May
13, 2021).
2 Mr. Papineau also alleged cumulative trauma injuries to his bilateral knees,
ankles, and feet. However, he agreed to drop those claims during the formal hearing
before the ALJ, as no impairment rating was assigned for them. Mr. Papineau also
2
date of the injury was November 1, 2016. As an attachment to his Form 101,
Mr. Papineau filed a medical questionnaire filled out by Dr. James Rushing.
Dr. Rushing examined Mr. Papineau on August 2, 2017. Dr. Rushing opined
that Mr. Papineau’s medical issues with his shoulders and back were caused
either wholly or in part by his job activities, and that continuation of his job
duties would continue to cause adverse health consequences.
The following month, Mr. Papineau filed a more thorough medical report
from Dr. Stephen Autry. Dr. Autry had examined Mr. Papineau on March 8 at
the request of Mr. Papineau’s attorney. It is undisputed that Dr. Autry
misstated the timeline of Mr. Papineau’s employment with Trans Ash in his
medical report, which states: “[i]n 2014, after being laid off at Patriot Coal, he
began working for Trans Ash and continued to work through April of 2017,
when he retired.” As previously discussed, Mr. Papineau worked for Trans Ash
from October 26, 2015 to November 20, 2015, and then from February 15,
2016 to November 1, 2016.
In addition, and of particular relevance to this case, Dr. Autry detailed
Mr. Papineau’s job duties in three different places in the report. In the
“Plaintiff History” section of the report, Dr. Autry stated:
[t]he plaintiff … has worked thirty five years in the coal industry …
During the course of his employment, he sustained significant
impact while operating equipment over uneven surfaces. He had
to operate levers and controls, climb up and down off of
equipment, perform maintenance and do lifting,
filed an application for resolution of a work-related hearing loss claim on the same day
he filed his Form 101. The ALJ ultimately only awarded medical benefits for the
hearing loss claim, as no impairment rating was assigned for it either. Trans Ash does
not appear to challenge that award.
3
bending and stooping activities during the course of his
employment.
Similarly, in the “Causation” section of the report, Dr. Autry noted that “[t]he
plaintiff’s job required significant operation of heavy equipment with impact
loading, climbing, operating and working in difficult positions, creating
significant stress loads on both shoulders and lower back.” Finally, in the
“Restrictions” section of his report, Dr. Autry recounted that Mr. Papineau
“described [the] physical requirements of the type of work performed with last
employer and the injury history. The job description included prolonged
standing, walking, climbing, lifting, reaching, pushing, pulling, bending,
stooping, crouching and overhead lifting.”
Dr. Autry diagnosed Mr. Papineau with, inter alia, “[a]ggravation of
lumbar spondylosis,”3 “[r]otator cuff tendinosis4 and impingement,5 right
shoulder,” and “[r]otator cuff tendinosis and impingement, left shoulder.” Dr.
Autry explained in the “Causation” and “Explanation of Causal Relationship”
sections of his report that
3 “Spondylosis is age-related change of the bones (vertebrae) and discs of the
spine. These changes are often called degenerative disc disease and osteoarthritis.”
https://www.uofmhealth.org/health-library/abr8401 (last accessed May 12, 2021).
4 “Rotator cuff tendonitis is an inflammation of a group of muscles in the
shoulder together with an inflammation of the lubrication mechanism called the
BURSA.” https://my.clevelandclinic.org/health/diseases/17449-rotator-cuff-
tendonitis (last accessed May 12, 2021).
5 “Shoulder impingement syndrome occurs when the tendons of the rotator cuff
and the subacromial bursa are pinched in the narrow space beneath the acromion.
This causes the tendons and bursa to become inflamed and swollen. This pinching is
worse when the arm is raised away from the side of the body. Impingement may
develop over time as a result of a minor injury, or as a result of repetitive motions that
lead to inflammation in the bursa.” https://www.thesteadmanclinic.com/patient-
education/shoulder/rotator-cuff-impingement (last accessed May 12, 2021).
4
[r]ecurrent micro trauma may occur throughout the
musculoskeletal system including bones, ligament, tendons,
muscles and vertebral discs. Cyclic loading of these tissues may
cause structural fatigue and gradual degradation of these
structures. The symptomatic appearance of these destructive
processes may take years to emerge. Individuals engaged in
frequent heavy lifting, working in positions requiring highly
leveraged or repetitive activities, or substantial cyclic impact
loading are candidates for symptomatic injuries and impairment
due to cumulative trauma.
[…]
[Mr. Papineau] has worked in mining for over thirty-five years.
Over this period of time, he had sustained injuries, which have
been detailed above. This listing is not necessarily complete. [Mr.
Papineau] has experienced work related pain in multiple areas of
his body including his back [and] shoulders. These injuries are
consequences of his many years in mining. Pain and functional
limitations may be the combined result of incident and cumulative
trauma.
[…]
The lumbar spine is subject to axial (compressive), bending, and
torsional (twisting) loads during work activities. These stresses
subject soft tissue and bone to cyclic loading and fatigue. These
traumas may be initially asymptomatic but, over time, can
accumulate and make a previously asymptomatic condition
symptomatic. In the case of [Mr. Papineau], harmful change
occurred due to recurrent stress loading to the disc, ligament, and
facet anatomy sustained during the course of performing the
activities required in his job description.
[…]
The rotator cuff is a group of connected muscle insertions
(tendons) that, like the clutch of a car, stabilize and engage the
humerus (arm) and glenoid (shoulder blade). There is substantial
leverage placed on this structure during lifting, pulling, and jerking
particularly when the arm is in awkward positions. Recurrent
injuries can tear the insertion (attachment) of these tendons.
Microscopic tears can, with recurrent stress loading, progress to a
complete tear.
[…]
5
This, taken in conjunction with the other problems detailed
above, represent (sic) conditions in which the symptoms have
been asymptomatic, dormant, and non-disabling but have been
aroused into a disabling condition by the plaintiff’s latest
employment.6
Dr. Autry assigned Mr. Papineau a 23% whole person impairment rating
and opined that he had reached maximum medical improvement as of the date
of the examination. Based on his diagnoses, Dr. Autry did not believe Mr.
Papineau had the physical capacity to return to work as a heavy equipment
operator, and recommended several physical restrictions. Dr. Autry did not
believe that Mr. Papineau had an active impairment prior to the manifestation
of his cumulative trauma injuries.
Mr. Papineau later testified7 regarding his claim. He explained that a
typical cab for the vehicles he worked in for Trans Ash was about six to seven
feet off of the ground. Therefore, in order to enter the vehicle, he would have to
pull himself up to the cab by using steps and handles on the side of vehicle.
He estimated that he would enter and exit the vehicle between two and four
times each day. His workday mainly involved sitting in the cab of the vehicle
and pulling levers and pushing pedals inside the vehicle. Mr. Papineau
explained what he believed the cause of his cumulative injuries to be:
Q: Mr. Papineau, what do you think about your job with Trans Ash
injured your low back?
A: Vibration. You know when you’re driving along in a car and you
hit a pothole? Same thing on a heavy piece of equipment, like a
bulldozer or a bobcat. You’re going along there and the terrain
6 (Emphasis added).
7Discussion of his testimony is drawn from both Mr. Papineau’s deposition,
which was taken on July 13, 2018, and the formal hearing before the ALJ, which
occurred on August 21, 2018.
6
changes or you run over something there’s a jar, or maybe back
into something, there’s a jar. You know, that’s what I’m saying.
[…]
Q: What do you think about your work with Trans Ash injured
your shoulders?
A: Climbing from the ground up on the machine and you get up
there and you twist around on a track and open a door and maybe
go around, tie the door open. And you do that three or four times
a day. It contributed to it.
Mr. Papineau disagreed with Trans Ash’s attorney’s characterization of his job
as “light duty.” He instead felt that it was of moderate intensity, citing the
extreme vibrations and jarring and also noted that, for example, on “a slope
with, say, three to one elevation, you know, you’d be leaning over in the seat
pretty bad one way or the other.” He agreed that his work for Trans Ash
involved no heavy lifting or bending and stooping and that he did not
personally perform maintenance for the vehicles in which he worked.
Mr. Papineau stated that he had never been injured at work at any time
during his thirty-five-year career. He further testified that he could not
pinpoint a specific incident that made him decide to file a workers’
compensation claim. Rather, the pain in his lower back and shoulders
developed slowly over time, and he decided to file a workers’ compensation
claim after he was denied Social Security Disability benefits. He stated that his
injuries do not interfere with his everyday life, though mowing his lawn does
sometimes aggravate his existing pain. He did not believe he could return to
work as a heavy equipment operator due to the pain in his back and shoulders.
7
The medical questionnaire by Dr. Rushing, and the medical report by Dr.
Autry were the only medical evidence submitted by Mr. Papineau. Trans Ash
did not proffer any medical evidence.
Based on the evidence before her, the ALJ found that Mr. Papineau
[s]ustained work-related … cumulative trauma to his low back and
shoulders and that he is entitled to permanent partial disability
benefits based upon the 23% impairment rating, and the 3.6
multiplier, due to his inability to return to the work he was
performing at the time of the injury. He is also entitled to future
medical expenses for his low back [and] shoulders.
The “Summary of Evidence” section of the ALJ’s opinion and award
reflects that she considered the deposition and live testimony of Mr. Papineau
as well as Mr. Papineau’s timesheets from his tenure with Trans Ash.8 She
also considered Dr. Rushing’s medical questionnaire, though seemingly to a
much lesser extent than Dr. Autry’s report. The ALJ’s discussion of the
evidence from Dr. Rushing in its entirety was:
Dr. Rushing performed a chiropractic/orthopedic examination on
August 2, 2017. Dr. Rushing diagnosed lumbar bulging disc; [and]
degenerative joint disease of the … shoulders. Dr. Rushing opined
that Papineau’s medical issues to his shoulders [and] back … were
caused, either wholly or in part, by his job activities. He believed
that continuation of Papineau’s job duties would continue to have
adverse health consequences.
In contrast, the ALJ discussed Dr. Autry’s report at length. Of note, she
recounted the following:
[Dr. Autry] stated that Papineau sustained impact while operating
equipment over uneven surfaces. He had to operate levers and
controls and climb up and down off of equipment. He performed
8 While working for Trans Ash, Mr. Papineau completed daily timesheets. Each
timesheet asked whether the employee had been injured that day. Mr. Papineau never
indicated that he had been injured on his timesheets.
8
maintenance and did lifting, bending and stooping activities during
the course of his employment. Dr. Autry noted that his right
shoulder has developed significant problems over a four-year
period from jerking, pushing, and pulling. He had to run a drag
line, which (sic) significant stress load on either shoulder.
[…]
Dr. Autry diagnosed … aggravation of lumbar spondylosis; rotator
cuff tendinosis and impingement, right and left shoulders[.] Dr.
Autry opined that Papineau’s injury was caused by his work injury
(sic). Dr. Autry explained that Papineau’s history and job
description correlate with the specific diagnoses. He stated that
Papineau’s job required significant operation of heavy equipment
with impact loading, climbing, operating and working in difficult
positions, creating significant stress loads on both shoulders and
the lower back.
Dr. Autry further explained that Papineau had experienced work-
related pain in multiple areas of his body including his back [and]
shoulders[.] Dr. Autry opined that those injuries were
consequences of his many years in mining; and that the pain and
functional limitations may be the combined result of incident and
cumulative trauma.
Dr. Autry stated that there is substantial leverage placed on the
rotator cuff, particularly when the arm in in an awkward position,
and that recurrent injuries can tear the insert of these tendons.
Microscopic tears can, with recurrent stress loading, progress to a
complete tear. He also described that the lumbar spine is subject
to axial (compressive), bending and torsional (twisting) loads
during work activities.
Dr. Autry utilized that (sic) AMA Guides to the Evaluation of
Permanent Impairment, and assessed a 23% whole person
impairment, DRE Category I; aggravation of lumbar spondylosis
with significant pain (2%); and rotator cuff tendinosis and
impingement, right shoulder (10%) and left shoulder (12%). Dr.
Autry opined that Papineau did not have an active impairment
prior to this injury; and that Papineau’s condition was deemed
static and at maximum medical improvement as of the date of this
exam. Dr. Autry finally opined that Papineau did not retain the
physical capacity to return to the type of work performed at the
time of the injury. Dr. Autry recommended restrictions including
avoiding tasks involving lifting, bending, stooping, pushing,
pulling, climbing, and overhead lifting, and no lifting more than 20
pounds.
9
In the “Causation” portion of her opinion and award, the ALJ found that
Mr. Papineau met his burden of proving that he sustained work-related
cumulative trauma injuries while working at Trans Ash. She reasoned:
[w]here an individual continues to perform the same repetitive
activity after a gradual injury becomes manifest, additional
incidents of workplace trauma may well cause additional harmful
changes. In other words, the individual may well sustain
subsequent gradual injuries. Special Fund v. Clark, 998 S.W.2d
487 (Ky. 1999). The Kentucky Supreme Court recently addressed
which employer bears the responsibility of compensating an
injured worker for an alleged cumulative trauma injury:
In hearing loss and occupational disease claims—
which are quite similar in nature to cumulative
trauma because they occur gradually over time—the
employer at the time of the last injurious or hazardous
exposure is liable. The employee is entitled to the
same amount of compensation whether he worked for
one employer or many. An employee who sustains a
harmful change in his human organism due to
cumulative trauma over many years working for the
same employer is entitled to compensation to the full
extent of his resultant disability.
Hale v. CDR Operations, Inc., 474 S.W.3d 129 (Ky. 2015).
Defendant argues that Dr. Autry’s report is insufficient to
support a claim for cumulative trauma, in part, because Dr.
Autry was mistaken concerning the amount of time he worked
at Trans Ash, and when his employment ended. Defendant
argues that such mistake is critical given that he never
provided a manifestation date for the injury. However, this
ALJ finds whether he worked at Trans Ash for 9 months or
three years is irrelevant, because Dr. Autry opined that
Papineau’s employment at Trans Ash as an equipment
operator caused cumulative trauma, and Trans Ash was
Papineau’s last employer. Defendant failed to file any medical
evidence disputing Dr. Autry’s report. Further, it has been
definitively established by Papineau’s testimony that he last
worked for Defendant in November 2016, and that Trans Ash was
his last employer. Although [Papineau] had symptoms in his low
back and shoulders, and even underwent some treatment before
working for Trans Ash, there is no evidence that his injury
manifested prior to his employment with Trans Ash, or that his
10
conditions were active when he started working for Trans Ash.
Papineau worked at Trans Ash with no restrictions and continued
to do so until he retired in November 2016.9
The ALJ then addressed Trans Ash’s concern regarding Dr. Autry’s failure to
provide a date of manifestation for Mr. Papineau’s cumulative injuries:
[i]n Randall Co./Randall Div. of Textron, Inc. v. Pendland, 770
S.W.2d 687, 688 (Ky. App. 1989), the Kentucky Court of Appeals
adopted a rule of discovery with regard to cumulative trauma
injury holding the date of injury is “when the disabling reality of
the injuries becomes manifest.” In Special Fund v. Clark, 998
S.W.2d 487, 490 (Ky. 1999), the Kentucky Supreme Court defined
“manifestation” in a cumulative trauma injury claim as follows:
In view of the foregoing, we construed the meaning of
the term ‘manifestation of disability,’ as it was used in
Randall Co v. Pendland, as referring to physically
and/or occupationally disabling symptoms which lead
the worker to discover that a work-related injury has
been sustained.
In other words, a cumulative trauma injury manifests when “a
worker discovers that a physically disabling injury had been
sustained [and] knows it is caused by work.” Alcan Foil Products v.
Huff, 2 S.W.3d 96, 101 (Ky. 1999). A worker is not required to self-
diagnose the cause of a harmful change as being a work-related
cumulative trauma injury. See American Printing House for the
Blind v. Brown, 142 S.W.3d 145 (Ky. 2004). Rather, a physician
must diagnose the condition and its work-relatedness. Although
Defendant asserts that Papineau had complaints of pain and
sought treatment before his work at Trans Ash, Defendant has
pointed to no evidence indicating that any doctor ever related his
complaints to cumulative trauma until he was examined by Dr.
Rushing on August 2, 2017. This ALJ also finds that the
timesheets Papineau submitted indicating that he had no injuries
each day he worked for Trans Ash is not determinative as to
whether he had a cumulative trauma injury, as he is not required
to self-diagnose his injuries. Since Dr. Autry related the
cumulative trauma to his last employment with Trans Ash, and
Plaintiff’s last date of employment was November 1, 2016, this ALJ
finds that the injury date is November 1, 2016.
9 (Emphasis added).
11
The ALJ then recounted her reasoning for awarding permanent partial
disability benefits:
[t]his ALJ finds that Defendant has produced no medical evidence
to dispute Dr. Autry’s report, who found that Papineau has a 23%
impairment due to work-related cumulative trauma. This ALJ is
also unconvinced by Defendant’s arguments that Papineau has
failed to meet his burden of proving a work injury and resulting
impairment by filing Dr. Autry’s report. Thus, pursuant to the
unrebutted report of Dr. Autry, Plaintiff has a 23% impairment
rating.
Further, this ALJ finds Papineau’s testimony convincing that due
to his shoulder pain and low back pain, he would not be able to
return to the work he was performing at the time of the injury, and
he is entitled to the 3.6 multiplier (the .6 due to his age at the time
of the injury)…Although he can perform his daily activities and
fish, this does not equate to a finding that he could return to the
work he was performing as an equipment operator. He stated that
he did have some pain while trying to mow the grass, and he
stated unequivocally that he did not believe he could return to his
prior work. Further, Dr. Autry recommended restrictions and
specifically opined that he could not perform his work activities as
an equipment operator. There is no medical evidence disputing Dr.
Autry’s report.
Although Defendant argues that Dr. Autry had an incorrect
description of his job duties, and points to [the] fact that he
described working as a dragline operator, this ALJ finds that
Dr. Autry was describing all of Papineau’s prior jobs in the past
that would have contributed to his cumulative trauma.
Further, Dr. Autry stated that Papineau’s job required
significant operation of heavy equipment with impact loading,
climbing, operating and working in difficult positions, creating
significant stress loads on both shoulders and the lower back.
This ALJ finds that Dr. Autry’s opinion is consistent with
Papineau’s testimony. Papineau stated that he felt the vibration
of the heavy equipment caused his low back injuries. He testified
that climbing from the ground up on the machine and twisting to
open/close the cab door three to four times per day caused his
shoulder injury. Papineau denied that he considered operating
heavy machinery as light duty. Further, Papineau explained that it
would [be] moderate in his opinion, because of the jarring and
bouncing, due to the terrain. Defendant argues that Papineau
admitted that operating heavy equipment was like driving a car.
However, he admitted only that it was similar in the sense that the
12
controls were where he could reach them from a sitting position.
This was not an admission that his job was as easy as driving a car
on a paved road. Thus, this ALJ finds that Dr. Autry did have an
adequate understanding of Papineau’s job, and therefore, his
opinion concerning causation and whether Papineau can return to
work is credible.10
Following the ALJ’s ruling, Trans Ash filed a petition for reconsideration (PFR).
The ALJ denied the PFR based on Trans Ash’s failure to raise any new errors
appearing on the face of her opinion and award.
Trans Ash then appealed to the Board. Trans Ash argued, as it now does
before this Court, that the ALJ’s ruling was not based upon substantial
evidence for two reasons: (1) because Dr. Autry provided an inaccurate
description of the length of time that Mr. Papineau worked for Trans Ash; and
(2) because Dr. Autry provided an inaccurate description of the physical
requirements of Mr. Papineau’s job duties while working for Trans Ash.
In a thorough opinion, the Board unanimously upheld the ALJ.
Regarding Dr. Autry’s inaccurate description of the length of time that Mr.
Papineau worked for Trans Ash, the Board agreed with the ALJ’s determination
that this Court’s recent holding in Hale v. CDR Operations, Inc., supra,
rendered the error harmless:
[i]n his March 8, 2018, report, Dr. Autry stated that, in 2014, after
Papineau was laid off at Patriot Coal, he began working for Trans
Ash and continued working through April 2017 when he retired.
That statement is not correct, as Papineau testified he only worked
for Trans Ash from October 25, 2015, through November 20, 2015,
and from February 15, 2016, through November 2016. His work
history reveals he was last employed by Trans Ash on November 1,
2016. As noted by the ALJ, the fact Papineau worked nine months
is irrelevant. If the ALJ determines, which she did, that the
symptoms in Papineau’s lower back and shoulders worsened
10 (Emphasis added).
13
during his employment with Trans Ash causing the injuries to
manifest, then Trans Ash is the employer at risk and bears the
entire liability for the cumulative trauma injuries.
[…]
Although Dr. Autry had a mistaken understanding of the length of
Papineau’s employment with Trans Ash, he clearly attributed
Papineau’s cumulative trauma injuries to his lower back and
shoulder to his work activities with Trans Ash. More importantly,
his report, in two different sections, demonstrates he possessed a
correct understanding of Papineau’s job duties with Trans Ash.
Pursuant to Hale, that is sufficient to impose the entire liability for
the cumulative trauma injuries upon Trans Ash.
The Board also rejected Trans Ash’s argument that Dr. Autry lacked an
accurate understanding of Mr. Papineau’s job duties while working for Trans
Ash:
The record does not demonstrate, as argued by Trans Ash, Dr.
Autry misunderstood Papineau’s job duties. In making that
argument, Trans Ash notes Dr. Autry stated as follows:
1. The plaintiff described the physical requirements of
the type of work performed at the time of the injury as
follows:
The plaintiff described physical requirements of the
type of work performed with last employer and injury
history. The job description included prolonged
standing, walking, climbing, lifting, reaching, pushing,
pulling, bending, stooping, crouching, and overhead
lifting. (emphasis added).
The ALJ concluded that, in making his statement, Dr. Autry was
describing all of Papineau’s prior jobs which contributed to the
cumulative trauma injuries to his lower back and shoulders. We
believe this is a reasonable interpretation of Dr. Autry’s statement
set forth above.
Significantly, Dr. Autry’s report, in two different sections,
demonstrates he had an accurate understanding of Papineau’s job
duties with Trans Ash…The history Dr. Autry set forth and his
description of Papineau’s job duties contained in the “Causation”
section are consistent with Papineau’s testimony concerning his
job duties with Trans Ash. Thus, we find no merit in Trans Ash’s
14
assertion Dr. Autry misunderstood Papineau’s job duties. The
opinions expressed by Dr. Autry under the “Causation” and
“Explanation of Causal Relationship” sections in his report
constitute substantial evidence supporting the ALJ’s determination
Papineau sustained cumulative trauma injuries to his lower back
and shoulders manifesting during his employment with Trans Ash.
Subsequent to the Board’s ruling, Trans Ash appealed to the Court of
Appeals. A divided Court of Appeals reversed and vacated the ALJ’s opinion
and award.11 The entirety of the majority’s analysis consisted of the following:
[i]n this case, the ALJ found that Papineau suffered cumulative
trauma injuries to his lumbar spine and shoulders that became
manifest on November 1, 2016. To support that finding, it is clear
that the ALJ relied upon the expert opinion of Dr. Autry. In his
report, Dr. Autry opined that Papineau’s work history in the mines
caused Papineau to sustain cumulative trauma injuries that
became manifest “by the plaintiff’s latest employment.” Dr. Autry
did not specify a date that Papineau’s cumulative trauma injuries
manifested. The omission is significant because Dr. Autry
erroneously believed that Papineau worked for Trans Ash for three
years, beginning in 2014. However, Papineau only worked for
Trans Ash for nine days in October – November 2015, and for
approximately nine months beginning in February 2016. Dr. Autry
further stated in his report that Papineau continued his
employment at Trans Ash through April of 2017, which is totally in
error.
Our Supreme Court has held that “[w]hen a physician’s opinion is
based on a history that is ‘substantially inaccurate or largely
incomplete,’ that opinion ‘cannot constitute substantial evidence.’”
Eddie’s Service Center v. Thomas, 503 S.W.3d 881, 887 (Ky. 2016)
(quoting Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842
(Ky. 2004)). As set forth above, Dr. Autry’s opinion was based
upon a substantially inaccurate work history – that Papineau was
employed by Trans Ash for three years. This alone raises serious
doubt as to whether Dr. Autry properly evaluated Papineau’s job
duties at Trans Ash to establish an accurate work history or a
cumulative injury. Given the inaccuracy of the work history set
out in the expert opinion exclusively relied upon by the ALJ to
establish the cumulative injury, we conclude that Dr. Autry’s
opinion cannot constitute substantial evidence to support the
11 Trans Ash, Inc. v. Papineau, 2019-CA-000613-WC, 2020 WL 3027313 (Ky.
App. June 5, 2020) (Clayton, C.J., dissenting).
15
ALJ’s findings. We, thus, vacate the Board’s Opinion affirming the
ALJ and remand for the ALJ to reconsider Papineau’s claims of
cumulative trauma injuries.
We view any remaining contentions of error as moot or without
merit.12
In her dissenting opinion, Chief Judge Clayton argued that the Board
properly upheld the ALJ’s award based upon the holding in Hale, supra.13 She
discussed Hale at length, including its factual similarities to the case at bar.14
She then concluded her dissent by contending that
the ALJ determined that Dr. Autry’s report was sufficient evidence
that Papineau’s injury was caused by a work injury, and no
contrary medical evidence was produced. Therefore, even if Dr.
Autry was incorrect as to the injury’s manifestation date, such
mistake was harmless error. The workers’ compensation statutes,
as currently drafted, dictate that the last employer is liable and
that apportionment amongst the various employers is not
allowable. Trans Ash, Inc., as the last employer, is liable.
Therefore, I would affirm the decision of the Workers’
Compensation Board.15
Mr. Papineau now appeals the Court of Appeals’ ruling to this Court.
Additional facts are discussed below as necessary.
II. ANALYSIS
Mr. Papineau met his burden of proof before the ALJ to show that he
suffered work-related cumulative trauma injuries. Accordingly, in order to
prevail on appeal, Trans Ash must demonstrate that the ALJ’s decision was not
12 Id. at *2-*3 (internal footnotes omitted).
13 Id. at *3.
14 Id.
15 Id.
16
supported by substantial evidence.16 “Substantial evidence means evidence of
substance and relevant consequence having the fitness to induce conviction in
the minds of reasonable men.”17 Further, the role of this Court in workers’
compensation cases are limited to “[addressing] new or novel questions of
statutory construction, or [reconsidering] precedent when such appears
necessary, or [reviewing] a question of constitutional magnitude.”18 As such,
the fact-finding role of the ALJ is entitled to a great deal of deference. “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 total proof.”19 This Court cannot substitute its judgment for
that of the ALJ’s as to the weight of the evidence and questions of fact, and
“[e]vidence that would have supported but not compelled a different decision is
an inadequate basis for reversal on appeal.”20
Trans Ash argues that the ALJ’s order and award was not supported by
substantial evidence because it was based upon Dr. Autry’s medical report
which, it argues, contained two errors. The first was Dr. Autry’s inaccurate
16Hale, 474 S.W.3d at 140 (citing Wolf Creek Collieries v. Crum, 673 S.W.2d
735, 736 (Ky. App. 1984)).
17Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 270 (Ky. 2018) (quoting
Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367 (Ky. 1971)).
18 W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 688 (Ky. 1992).
19 Wilkerson v. Kimball Int’l, Inc., 585 S.W.3d 231, 235 (Ky. 2019) (citing
Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985)).
20 Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456,
461 (Ky. 2012).
17
statement of the amount of time Mr. Papineau worked for Trans Ash. The
second was Dr. Autry’s alleged misunderstanding of the physical requirements
of Mr. Papineau’s work for Trans Ash. Trans Ash further asserts that this
Court’s holding in Cepero v. Fabricated Metals Corp.21 compels that we vacate
the ALJ’s opinion and order. We disagree. We do not believe Cepero is
applicable to the case at bar because Dr. Autry’s medical report was not
substantially inaccurate or largely incomplete. Further, the inaccuracies
regarding the time period Mr. Papineau worked for Trans Ash were not material
due to this Court’s holding in Hale, supra.
In Cepero, the employee fell at work and bumped his knee against a
cabinet, and was sent to CARITAS Occupational Health Center.22 CARITAS
noted that his knee was stable and not swollen, and diagnosed the employee
with a “contusion and strain of the left knee.”23 A week later the employee saw
Dr. Louise Box.24 He told Dr. Box that he had broken his left knee three years
ago while practicing martial arts, that he was in a wheelchair for three months
due to the injury, and that surgery was recommended but never performed.25
He did not mention the work-related injury to Dr. Box.26 Dr. Box referred him
to two orthopedic surgeons, Drs. Leonard Goddy and Thomas Loeb.27
21 132 S.W.3d 839 (Ky. 2004).
22 Id. at 840.
23 Id.
24 Id.
25 Id.
26 Id.
27 Id.
18
The employee likewise did not tell Drs. Goddy or Loeb about his work-
related knee injury.28 He told them about the martial arts injury, but told
them it happened only two and a half years prior and that he only spent two
months in a wheelchair.29 Dr. Goddy diagnosed him with disruption of the left
ACL and disruption of the left LCL.30 Dr. Loeb opined that the cause of the
employee’s present disability was caused by the martial arts accident due to
the nature of the injury.31
Dr. David Changaris examined employee three years after the work-
related injury occurred.32 Dr. Changaris’ medical report referenced only the
work-related incident and did not mention the martial arts injury.33 Dr.
Changaris attributed the employee’s knee issues entirely to the work-related
incident.34
Dr. Ellen Ballard examined the employee two months after Dr.
Changaris’ examination.35 Dr. Ballard testified that the employee attributed
his knee injury solely to the work incident and specifically denied any prior
injury to his left knee.36 Based on that history, she initially attributed the
28 Id.
29 Id.
30 Id.
31 Id. at 840-41.
32 Id. at 841.
33 Id.
34 Id.
35 Id.
36 Id.
19
cause of the employee’s disability to the work incident.37 However, on cross-
examination, she was shown the records of Drs. Goddy and Loeb wherein the
employee’s martial arts injury was discussed.38 After looking at those records,
Dr. Ballard agreed that his disability was more likely than not caused by the
martial arts accident due to the nature of the injury.39
The ALJ found for the employee and awarded benefits.40 The ALJ relied
upon the medical records from CARITAS and Dr. Changaris, and Dr. Ballard’s
findings prior to her review of Drs. Goddy and Loeb’s records.41 The Board
reversed, holding that the ALJ’s findings on causation were not supported by
substantial evidence, which was later affirmed by the Court of Appeals.42 We
agreed and held that
where it is irrefutable that a physician's history regarding work-
related causation is corrupt due to it being substantially
inaccurate or largely incomplete, any opinion generated by that
physician on the issue of causation cannot constitute substantial
evidence. Medical opinion predicated upon such erroneous or
deficient information that is completely unsupported by any other
credible evidence can never, in our view, be reasonably probable.
Furthermore, to permit a ruling of law to stand based upon such
evidence that is not reliable, probative and material would be
fundamentally unjust.43
37 Id.
38 Id.
39 Id.
40 Id. at 842.
41 Id.
42 Id.
43 Id. (emphasis added).
20
The Court reasoned that Dr. Changaris did not testify and his medical report
did not reference Dr. Goddy or the employee’s true medical history; it referred
only to Dr. Loeb’s diagnosis and treatment.44 It therefore assumed that Dr.
Changaris must have been unaware of the employee’s full medical history.45 It
further noted that Dr. Ballard was never provided the history prepared by Dr.
Goddy, but only the treatment records of Dr. Loeb.46 The Cepero Court
accordingly vacated the ALJ’s opinion and order.
In this case, it is undisputed that Dr. Autry’s report misstates Mr.
Papineau’s length of employment with Trans Ash. The report provides that Mr.
Papineau began working for Trans Ash in 2014 and continued working through
April of 2017. Mr. Papineau actually worked for Trans Ash from October 26,
2015, to November 20, 2015, and then from February 15, 2016, to November
1, 2016. However, we agree with the conclusion of the ALJ and the Board that
this error is not material because of this Court’s holding in Hale.
In Hale, we held that when an employee alleging a work-related
cumulative trauma injury had worked for multiple employers, the employer on
the date of manifestation of the injury bears the full burden of paying workers’
compensation benefits:
[i]n hearing loss and occupational disease claims—which are quite
similar in nature to cumulative trauma because they occur
gradually over time—the employer at the time of the last injurious
or hazardous exposure is liable. The employee is entitled to the
same amount of compensation whether he worked for one
employer or many. An employee who sustains a harmful change in
44 Id. at 843.
45 Id.
46 Id.
21
his human organism due to cumulative trauma over many years
working for the same employer is entitled to compensation to the
full extent of his resultant disability. But, someone like Hale
would not be fully compensated, simply because he worked for
multiple employers. We can discern no basis for such a distinction
… Nothing in KRS Chapter 342 limits the liability of the
employer, in whose employ the date of manifestation occurred, to
the percentage of the claimant's work-life spent there.47
The Hale Court based its holding on the numerous changes to Chapter 342
that had occurred since the time period when apportionment among employers
was appropriate.48 We note that there have been no changes to Chapter 342
since Hale was rendered that would necessitate revisiting its holding.
Therefore, it does not matter that Dr. Autry did not provide an accurate
timeline of Mr. Papineau’s work for Trans Ash because Dr. Autry reported that
Mr. Papineau’s injuries came into disabling reality during the time he worked
for Trans Ash. Therefore, under Hale, Trans Ash bears the full burden of
paying any workers’ compensation benefits awarded to Mr. Papineau. In
addition, Dr. Autry’s mistake did not rise to the level of substantial inaccuracy
that occurred in Cepero.
Trans Ash also asserts that Dr. Autry’s report cannot be substantial
evidence because it contained a “wildly inaccurate” description of Mr.
Papineau’s job duties and the physical demands of his job. As discussed in
Section I of this opinion, Dr. Autry’s report describes Mr. Papineau’s job duties
in three different places. Those descriptions were as follows: (1) “He had to
operate levers and controls, climb up and down off of equipment, perform
47 Hale, 474 S.W.3d at 138.
48 Id. at 133-34.
22
maintenance and do lifting, bending and stooping activities during the course
of his employment”; (2) “[t]he plaintiff’s job required significant operation of
heavy equipment with impact loading, climbing, operating and working in
difficult positions, creating significant stress loads on both shoulders and lower
back”; and (3) “[t]he job description included prolonged standing, walking,
climbing, lifting, reaching, pushing, pulling, bending, stooping, crouching and
overhead lifting.”
As a preliminary matter, the second description is in no way inconsistent
with Mr. Papineau’s job duties for Trans Ash. It therefore does not warrant
discussion. With regard to the first and third descriptions, Trans Ash argues
that they reveal that Dr. Autry did not have an accurate understanding of Mr.
Papineau’s job duties because they include descriptions of performing
maintenance, bending, stooping, lifting, prolonged standing, and walking. It is
not disputed that Mr. Papineau’s work for Trans Ash did not involve these acts.
However, the ALJ found that “Dr. Autry was describing all of Papineau’s prior
jobs in the past that would have contributed to his cumulative trauma,” i.e., all
of the physical requirements his numerous jobs over the course of his thirty-
five-year career entailed. Given the context in which these descriptions appear,
the ALJ’s interpretation of Dr. Autry’s report is fair and reasonable.
Additionally, the descriptions provided by Dr. Autry cannot be said to be
substantially inaccurate under Cepero because Dr. Autry provided an accurate
description of what Mr. Papineau’s work as a heavy equipment operator
involved.
23
Accordingly, we cannot hold that the ALJ’s opinion was not based on
substantial evidence, and we reverse the Court of Appeals.
III. CONCLUSION
Based on the foregoing, we reverse the Court of Appeals and reinstate the
ALJ’s opinion and award.
All sitting. All concur.
COUNSEL FOR APPELLANT, Craig Papineau:
McKinnley Morgan
Morgan, Collins, Yeast, & Salyer
COUNSEL FOR APPELLEE, Trans Ash, Inc.:
Kasey Lynne Bond
Gregory Robinson
Keating, Meuthing & Klekamp, PLL
COUNSEL FOR APPELLEE, Workers’ Compensation Board:
Michael Wayne Alvey
ADMINISTRATIVE LAW JUDGE:
Hon. Christina J. Hajjar
24