Eddie's Service Center v. Donna Thomas Administratrix of the Estate of Eddie Ray Thomas, Jr. , 2016 Ky. LEXIS 568 ( 2016 )


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  • RENDERED: DECEMBER 15, 2016
    TO BE PUBLISI~IED
    §upreme Tnurf of Benfuckg
    2015-SC-000676-WC
    EDDIE’S SERVICE CENTER APPELLANT
    ON APPEAL FROM COURT OF APPEALS
    CASE NO. 2015-CA-OOO696-WC
    V. WORKERS’ COMPENSATION BOARD
    NO. 10-WC-97727
    DONNA THOMAS, ADMINISTRATRIX OF APPELLEES
    THE ESTATE OF EDDIE RAY THOMAS, JR.,
    DECEASED; HON. STEVEN G. BOLTON,
    ADMINISTRATIVE LAW JUDGE; AND
    WORKERS’ COMPENSATION BOARD
    OPINION OF THE COURT BY JUSTICE KELLER
    AFFIRMING
    An Administrative Law Judge (ALJ) dismissed the claim for workers’
    compensation benefits filed by the Estate of Eddie Ray Thomas, Jr. (the
    Estate). The Workers’ Compensation Board (the Board) affirmed the ALJ’s
    dismissal The Court of Appeals reversed the Board and remanded this matter
    to the ALJ with instructions to award benefits. For the reasons set forth below,
    we affirm the Court of Appeals.
    I. BACKGROUND.
    On January 21, 2010, Eddie Ray Thomas, Jr. (Eddie) died while
    attempting to tow a truck from a roadside culvert. Because Eddie is deceased,
    the underlying facts, Which are not in dispute, come from testimony by Eddie’S
    widow, Donna Thomas (Donna), and Samuel Bailey (Bailey), who was with
    Eddie when he died.
    Donna testified that Eddie’s Service Center (the Service Center] Was an
    automobile service center and gas station owned by Eddie’s father, Eddie Ray
    Thomas, Sr. Eddie had Worked in his father’s business for 30 years, spending
    the last 20 years as the manager. In addition to the service center /gas station,
    the business operated a towing service, and Eddie was “on-call” 24 hours a
    day.
    On January 20, 2010, a representative from the Environmental
    Protection Agency1 (EPA) advised Eddie that the gas tanks were leaking and
    would be removed the next day. According to Donna, Eddie was upset and, on
    January 21, when the tanks were being removed, he was inconsolable. Donna
    testified that Eddie feared the business would have to close if it could not sell
    gas, which meant he would lose his livelihood and his father’s business. When
    Donna visited the Service Center the afternoon of January 21, Eddie was
    extremely anxious and agitated and could not stop pacing. That evening, Eddie
    was too upset to eat, appeared flushed, was sweating, and continued to pace
    until nearly 9:00 p.m. When it appeared Eddie had finally calmed down, he
    received a phone call from the Kentucky State Police asking him to tow a
    vehicle that had gone off the road. Donna did not hear from Eddie again and
    did not know anything about What transpired after Eddie left the house.
    1 It is unclear from the evidence whether this was the federal or state agency.
    2
    According to Donna, who is an LPN, Eddie had a history of high blood
    pressure, for which he took medication, and which she monitored. However,
    Donna testified that Eddie had never received any specific cardiac diagnostic
    testing or treatment and also testified that both of Eddie’s parents had a
    history of treatment for heart conditions, including stent implantations.
    The only evidence of what occurred in the hour before Eddie’s death
    came from Bailey. According to Bailey, his son called and reported that he had
    been forced off the road and that his truck was in a ditch. When Bailey arrived
    at the scene, Eddie was there with a tow truck as was a Kentucky State Police
    officer. The son’s truck Was in a culvert, and the top of the truck was
    approximately four feet below the road. Eddie told Bailey that it would
    probably be difficult to get the truck out of the culvert without doing significant
    damage. However, Eddie made several attempts to do so, climbing up and
    down the embankment of the culvert and under the truck four times in order
    to re-position the tow chain. Bailey went up and down the bank with Eddie
    three times to help him and described the work as strenuous, noting that they
    had to dig their feet into the side of the embankment to get any footing. After
    the last trip up and down the embankment, both Eddie and Bailey Were
    breathing hard and it took approximately five minutes for their breathing to
    return to normal.
    Eddie told Bailey that he would need a bigger tow truck and went to his
    truck to call his father, The police officer, Who had received another call, then
    left the scene. After making his call, Eddie and Bailey directed traffic for a few
    3
    minutes until Eddie began complaining of heartburn. Eddie then returned to
    his tow truck to call his father to see when the other tow truck would arrive.
    Approximately five minutes later, Bailey saw Eddie get out of the truck, heard
    him make a noise, and saw him grab his chest, lean against the truck, and
    collapse. Bailey, who believed Eddie had suffered a heart attack, began
    performing CPR and told his son to call for assistance. When emergency
    personnel arrived they continued performing CPR and transported Eddie to the
    hospital, where he died.
    The parties filed a number of medical records and reports. Records from
    Morehead Clinic indicate that Eddie was diagnosed with gastroesophageal
    reflux disease (GERD) in 1998 and with high blood pressure in 2002. Eddie’s
    physicians prescribed medications to treat those conditions. In 2007, Eddie
    complained that he was “very anxious,” and “so nervous he vomits nearly
    daily.” He noted that he had suffered from this anxiety for nearly 30 years and
    that taking one-fourth of a 5 mg. Valium seemed to help. The physician
    prescribed that dosage of Valium along with his high blood pressure and GERD
    medications. We note that it is unclear from these records when Eddie initially
    began taking Valium and who prescribed it. Furthermore, we note that the
    records generally indicate that Eddie’s blood pressure was under control;
    however, the last note on December 10, 2009, shows an elevated blood
    pressure reading.2
    2 In addition to the preceding, the Estate filed records of Eddie’s treatment at
    the hospital on January 21, 2010. Those records have no information of any
    significance to the issues before us.
    Eddie filed two reports from Dr. Rodney Handshoe. In his first report,
    Dr. Handshoe noted Eddie’s history of high blood pressure and that no autopsy
    had been performed. He then stated that “[s]udden cardiac death is most
    commonly caused by a ventricular tachyarrhythmia induced by ischemia or
    myocardial infarction.” He noted that there could be other causes but that
    Eddie’s commercial driver’s license examination from 2008 showed no evidence
    of cardiovascular disease. Finally, he stated that “current medical knowledge
    would suggest that intense physical stress and emotional stress can indeed
    precipitate a cardiovascular event such as sudden cardiac death in those
    individuals with underlying cardiac disease. The events surrounding Mr.
    Thomas’s death could have played a role in this regard.”
    Following Bailey’s deposition, the Estate filed a supplemental report from
    Dr. Handshoe. Based on his reading of the transcript of Bailey’s deposition,
    Dr. Handshoe noted that Eddie had “chest pain followed quickly by sudden
    death after a prolonged period of very intense physical activity associated with
    trying to extricate a Wrecked vehicle.” According to Dr. Handshoe, these
    symptoms are “typical for an acute myocardial infarction” Which most
    commonly occurs “when there is a rupture of a preexisting atherosclerotic
    plaque resulting in formation of a blood clot that completely occludes an
    artery.” The resultant “lack of blood flow to the heart muscle causes cardiac
    injury and can precipitate life threatening heart rhythm disturbances that
    likely resulted in Mr. Thomas’s sudden death.” Dr. Handshoe concluded “that
    the physical exertion immediately preceding Mr. Thomas’s symptoms triggered
    plaque rupture and precipitated his heart attack and sudden death.”
    The Service Center filed the report of Dr. Hal Roseman. Dr. Roseman
    summarized the deposition testimony of Donna and Bailey in detail. We note
    that Dr. Roseman’s summarization is somewhat at odds with Bailey’s
    testimony. Dr. Roseman states that Bailey testified he and Eddie “walked up
    and down the hill.” However, Bailey stated that it was a “straight up and
    down” embankment, not a hill, and that they had to “dig their feet” into the
    side of the embankment to climb it. Dr. Roseman also states that Bailey
    testified, “Despite being Winded,’ [Eddie] and Mr. Bailey spoke in a normal
    conversational tone” after their last trip up the hill. However, the actual
    question and answer are as follows:
    Q: And, when he made the indication to you and your son that the
    larger truck was needed was he speaking in a normal tones [sic] - -
    normal voice at that point?
    A: Yes, other than winded, you know.
    Dr. Roseman also summarized the medical records in detail, noting in
    particular Eddie’s history of high blood pressure, GERD, anxiety disorder, high
    cholesterol, and family history of “premature coronary artery disease.” Dr.
    Roseman then undertook a detailed analysis of research regarding the causes
    of sudden cardiac death. A summary of that analysis follows.
    “[S]udden non-violent death . . . is usually related to coronary artery
    disease” and in male victims, only 50% have had any “prior known
    cardiovascular symptoms prior to their death.” “The most common cardiac
    6
    abnormality associated with sudden death is ischemic heart disease,
    accounting for up to 80% of cases.” While “ischemic heart disease sets the
    stage for sudden death . . . only 20% to 30% [of males] prove to have had a
    recent acute myocardial infarction.” (Emphasis in original.] “The anatomic
    findings in the setting of sudden cardiac death involve either ‘acute changes in
    coronary plaque morphology, such as thrombus, plaque disruption, or both, in
    >50% of cases of sudden death . . . active coronary lesions are identified in 46%
    of the cases.’” He noted that nearly half of all sudden deaths in one study were
    the result of “either an acute thrombus or an acute myocardial infarction.”
    However, “an acute lesion” was found in less than 25% of those cases where
    the victim’s symptoms had lasted “less than 15 minutes.” Based on the
    preceding, Dr. Roseman concluded that, “in a susceptible individual . . .
    sudden cardiac death . . . is the general result of ischemia related to advanced
    atherosclerosis or structural changes of the heart from either a healed
    myocardial infarction or from hypertension.”
    Although having previously stated that Eddie’s heartburn symptoms
    could have simply been a reoccurrence of his GERD, Dr. Roseman opined that
    Eddie’s pre-death symptoms represented angina that was caused by “ischemia
    of the right coronary artery.” According to Dr. Roseman, “Angina is a clinical
    syndrome characterized by discomfort in the chest, jaw, shoulder, back, or
    arm. It is typically aggravated by exertion or emotional stress and relieved by
    nitroglycerin.” Angina occurs when there is insufficient “oxygenated blood to
    satisfy the metabolic and oxygen needs of a functioning heart.” As to the
    7
    possibility of plaque rupture, Dr. Roseman stated that, “Except primarily for
    unconditioned individuals Who undertake vigorous exercise, exercise as a
    trigger of an event of plaque rupture is uncertain and unproven and is
    considered possibly causative only when the exercise is Within one hour of the
    cardiac event.”
    As to whether the work activity triggered Eddie’s sudden death, Dr.
    Roseman stated that Eddie’s activity required “minimal exertion,” “was not
    strenuous,” and “did not prevent him from talking in a normal conversational
    tone.” According to Dr. Roseman, this put Eddie’s activity at less than 4-5 on
    the metabolic equivalent of task (METs) scale and, regardless of the METs
    score, only one-third of myocardial infarctions are related to physical activity.
    The vast majority of those who had myocardial infarctions related to physical
    activity (28.6%) had engaged in moderate activity. Dr. Roseman admitted that
    exertion may play a role in sudden cardiac death; however, other factors,
    including time of day,3 also play “an independent role.”
    Dr. Roseman concluded that Eddie “experienced angina that precipitated
    an arrhythmia. Angina represents a symptom related to an imbalance between
    oxygen demand and supply of the heart and does not represent a structural
    change in the artery to the heart.” (Emphasis in original.) He disagreed with
    Dr. Handshoe’s statement that Eddie had a heart attack as a result of a plaque
    rupture; although, he admitted that Eddie “could have had a stable plaque,
    3 According to Dr. Roseman, angina and myocardial infarction “occur more
    frequently in early morning hours upon awakening and at rest than at other times of
    the day.”
    plaque erosion, or plaque rupture that coincided with his sudden death.” He
    noted that Eddie’s work activities Were not rigorous enough to have caused his
    death; the factors that lead to a plaque rupture are not known; and “exertion is
    an insufficient factor in effecting [that] process.” After undertaking an analysis
    of Kentucky Revised Statute (KRS) 342.0011(1), Dr. Roseman concluded that
    any emotional stress Eddie had was “a chronic issue” and not “related to his
    occupation, but . . . appears to be intrinsic to [Eddie’s] personality.” Therefore,
    he apparently did not factor Eddie’s emotional stress into his opinion regarding
    causation.
    Finally, Dr. Roseman concluded that “the fatal arrhythmia that caused
    the unfortunate death of [Eddie] could have occurred at any time and [it] was
    merely coincidental that it took place while he was at work. The underlying
    conditions of his coronary artery disease most likely were present for many
    years, which made Mr. Thomas vulnerable to a fatal arrhythmia. There is
    nothing intrinsic about his work that contributed to his coronary artery disease
    or his fatal arrhythmia. The arrhythmia was merely a sign or symptom, albeit
    fatal in this situation, of [Eddie’s] underlying cardiac condition.”
    In summary, Dr. Roseman stated that Eddie’s death was not the result of
    an arrhythmia caused by a plaque rupture, decreased blood flow, and
    subsequent myocardial infarction, as stated by Dr. Handshoe. Rather, Eddie
    suffered from ischemia, an underlying coronary artery disease, that caused a
    decrease in blood flow to the heart, which caused angina, and a fatal
    arrhythmia. While Dr. Handshoe opined that Eddie’s exertion prior to his
    9
    death triggered the plaque rupture and subsequent events, Dr. Roseman
    opined that exertion was not a causative factor.
    The ALJ, relying on Dr. Roseman’s report, initially determined that
    Eddie’s death Was not work-related In doing so, the ALJ stated that he was
    basing his opinion solely on the medical proof. The Estate appealed to the
    Board and the Board reversed and remanded, noting that heart claims must be
    decided on the totality of the circumstances, not solely on the medical proof.
    On remand, the ALJ again found that Eddie’s death Was not Work-related. In
    doing so, the ALJ found Dr. Roseman’s opinion to be more credible than Dr.
    Handshoe’s. In particular, the ALJ noted that Dr. Roseman undertook a more
    complete summary of Eddie’s past medical records and of the depositions of
    Bailey and Donna. He also noted that Eddie’s death occurred at a time “of
    relative inactivity” rather than when he “was engaged in the most difficult
    exertion,” and, per Dr. Roseman, Eddie’s heart attack could have occurred at
    any time. Finally, the ALJ found that Eddie suffered from pre-existing and
    active ischemic heart disease and that any anxiety regarding the removal of the
    gas tanks was not Work-related. The Estate appealed, and the Board affirmed.
    The Estate then appealed to the Court of Appeals, Which reversed. In
    doing so, the Court found that: the ALJ failed to factor Eddie’s mental stress
    into his conclusion; the ALJ’s finding that Eddie’s mental state was not work-
    related was “baffling”; there was no evidence to support the ALJ’s finding of
    pre-existing active ischemic heart disease; Dr. Roseman mischaracterized
    Bailey’s testimony regarding the amount of exertion Eddie expended, making
    10
    his opinion that exertion played no part in Eddie’s death unreliable; and the
    ALJ’s findings that Eddie Was out of shape and engaged in unusually
    demanding physical exertion within an hour of his death supported Dr.
    Handshoe’s opinion, not Dr. Roseman’s. Based on the preceding, the Court
    determined that the ALJ could not rely on Dr. Roseman’s report and remanded
    this matter to the ALJ for a finding in favor of the Estate.
    II. STANDARD OF REVIEW.
    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. Khani v. Alliance Chiropractic,
    
    456 S.W.3d 802
    , 806-07 (Ky. 2015). If the party with the burden of proof fails
    to convince the ALJ, that party must establish on appeal that the evidence was
    so overwhelming as to compel a favorable finding. Special Fund v. Francis, 
    708 S.W.2d 641
    , 643 (Ky. 1986). In other words, an ALJ’s decision should not be
    overturned on appeal unless it “is so unreasonable under the evidence that it
    must be viewed as erroneous as a matter of law.” KRS 342.285; Ira A. Watson
    Department Store v. Hamilton, 
    34 S.W.3d 48
    , 52 (Ky. 2000).
    III. ANALYSIS.
    In any claim for compensation, where the employee has been
    killed, or is physically or mentally unable to testify as confirmed by
    competent medical evidence and Where there is unrebutted prima
    facie evidence that indicates that the injury Was work related, it
    shall be presumed, in the absence of substantial evidence to the
    contrary, that the injury was work related, that sufficient notice of
    the injury has been given, and that the injury or death was not
    ll
    proximately caused by the employee's intoxication or by his Willful
    intention to injure or kill himself or another.
    KRS 342.680.
    As we explained in AK Steel Corp. v. Adkins, 
    253 S.W.3d 59
    , 63-64 (Ky.
    2008L
    A rebuttable presumption shifts to the party against whom it is
    directed the burden of going forward With evidence to rebut or meet
    it but does not shift the burden of proof (i.e., the risk of
    nonpersuasion) from the party upon whom the burden was
    originally cast. If the presumption is not rebutted, the party with
    the burden of proof prevails on that issue by virtue of the
    presumption. If the presumption is rebutted, it is reduced to a
    permissible inference. The ALJ must then Weigh the conflicting
    evidence and decide which is most persuasive.
    Here, the Estate offered testimony from Donna, Bailey, and Dr.
    Handshoe, supporting the Estate’s claim that Eddie’s heart attack Was work-
    related. Thus, the Estate met its burden even without the presumption
    provided by KRS 342.680. However, that did not relieve the Service Center
    from its burden of rebutting the statutory presumption, which it attempted to
    do With Dr. Roseman’s report. Thus, if Dr. Roseman’s report is “substantial
    evidence,” the Service Center rebutted the presumption, and the ALJ was free
    to weigh the evidence as in any other claim. However, if Dr. Roseman’s report
    does not amount to substantial evidence, the presumption stands and the ALJ
    was required to award benefits.
    Evidence is substantial if it is of “relevant consequence having the fitness
    to induce conviction in the minds of reasonable men.” Smyzer v. B.F. Goodrich
    Chemical Co., 
    474 S.W.2d 367
    , 369 (Ky. 1971). Having reviewed Dr. Roseman’s
    report, we hold that it is not substantial evidence, as delineated below.
    12
    A. Misunderstanding of events.
    When a physician’s opinion is based on a history that is “substantially
    inaccurate or largely incomplete,” that opinion “cannot constitute substantial
    evidence.” Cepero v. Fabricated Metals Corp., 
    132 S.W.3d 839
    , 842 (Ky. 2004).
    Dr. Roseman’s opinion that Eddie’s death was not work-related is based, in
    large part, on his conclusion that Eddie’s activity before his death required only
    minimal non-strenuous exertion. Dr. Roseman reached this conclusion based
    on his belief that Eddie walked up and down a hill several times and was able
    to converse in a normal tone after doing so. However, as noted above, Eddie
    did not “Walk” up and down a hill, he climbed up and down a steep
    embankment and climbed under the truck several times to position and re-
    position the tow chain. Bailey, the only person to testify regarding the amount
    of exertion required, stated that the activity was strenuous - testimony that Dr.
    Roseman largely ignored.
    As to Eddie’s speech pattern, Dr. Roseman is correct that Bailey testified
    that Eddie spoke in a normal conversational tone. However, according to the
    METs chart included in Dr. Roseman’s report, tone of voice is not the
    determinative factor regarding the intensity level of activity. Light intensity
    activity is marked by the ability “to talk and / or sing"; moderate intensity
    activity is marked by the ability “to talk but not sing”; and vigorous /hard
    intensity activity is marked by “difficulty talking.” These categories are
    indicative of whether a person is out of breath rather than his tone of voice.
    Thus, Bailey’s testimony that Eddie was “winded” after climbing up and down
    13
    the embankment is indicative of moderate to vigorous activity, not the minimal
    exertion cited by Dr. Roseman. Because this foundational leg of Dr. Roseman’s
    opinion is substantially inaccurate and largely incomplete, his report is not
    substantive evidence.
    B. Failure to consider Eddie’s stress.
    Dr. Roseman’s report also cannot be considered substantial evidence
    because he did not consider Eddie’s heightened anxiety as a contributing factor
    to his death. According to Dr. Roseman, Eddie’s stress was irrelevant for two
    reasons: it was not related to a physical injury; and it Was “a chronic issue . . .
    not . . . related to [Eddie’s] occupation, but . . . intrinsic to [his] personality.”
    These conclusions were based on Dr. Roseman’s incorrect interpretation of
    KRS 342.0011(1]. We address each of Dr. Roseman’s faulty interpretations
    separately below.
    KRS 342.0011(1) defines injury as:
    [A]ny 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” does not include the effects of the natural aging
    process, and does not include any communicable disease unless
    the risk of contracting the disease is increased by the nature of the
    employment “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 noted above, Dr. Roseman interpreted KRS 342.0011(1) as excluding
    any consideration of stress because Eddie’s stress was not the result of a
    physical injury. However, as this Court held in McCowan v. Matsushita
    14
    Appliance Co., 
    95 S.W.3d 30
    , 32-33 (Ky. 2002), KRS 342.0011(1) excludes
    compensation for “mental-mental” claims but not for “mental-physical” claims.
    In McCowan, the claimant became involved in a heated argument with a
    supervisor and subsequently suffered a heart attack. 
    Id. at 31.
    The Court
    found that the claim was compensable because, While the trauma the claimant
    suffered Was emotional, the harmful change for which she sought benefits was
    physical. 
    Id. at 33.
    Had the claimant been seeking compensation for a purely
    mental condition, her claim would have been disallowed absent some
    physically traumatic event. 
    Id. The Estate,
    like the claimant in McCowan, filed a claim for benefits based
    on a physically harmful change that resulted in part from emotional trauma,
    Thus, contrary to Dr. Roseman’s assertion, Eddie’s stress is not excluded from
    consideration by the exclusion of mental-mental claims in KRS 342.0011(1).
    It also appears that Dr. Roseman excluded any consideration of Eddie’s
    stress because he deemed it a pre-existing active condition. This interpretation
    is faulty for three reasons. First, as noted above, Eddie’s stress, by itself, was
    not compensable - whether it Was active or dormant - and the Estate was not
    seeking compensation based on that stress. Second, Eddie’s stress on the date
    of his death was greater than he had ever exhibited, and it is that increased
    stress, not the underlying always present lower-level stress, that was at issue.
    Third, the increased stress was the result of what was taking place at work.
    Dr. Roseman’s failure to consider Eddie’s stress level is significant As
    noted above, Dr. Roseman opined that Eddie’s ischemia caused a decrease in
    15
    blood flow, which caused angina, which caused a fatal arrhythmia. ln his
    report, Dr. Roseman stated that angina “is typically aggravated by exertion and
    emotional stress . . . .” Thus, Dr. Roseman’s opinion regarding causation lacks
    substance because he ignored a key factor that contributed to Eddie’s death.
    C. Internal inconsistencies.
    Dr. Roseman’s report contains a number of internal inconsistencies,
    which make it difficult to comprehend and which rob it of substance. Several
    examples of those inconsistencies follow.
    Dr. Roseman initially postulated that Eddie’s chest pain Was the result of
    GERD but then stated that the pain was angina. Dr. Roseman stated, “The
    anatomic findings in the setting of sudden cardiac death involves either ‘acute
    changes in coronary plaque morphology, such as thrombus, plaque disruption,
    or both in >50% of cases of sudden death,”’ but then stated that Eddie’s death
    could not have been the result of ruptured plaque and thrombosis. Dr.
    Roseman stated that “only about 6-17% of all sudden deaths occur in
    association with exertion,” but then stated that “physical stress with vigorous
    exercise . . . has been shown to trigger acute cardiovascular events” and “a
    third of the acute myocardial infarction[s] were preceded by physical activity.”
    Dr. Roseman stated that Eddie’s death was the result of angina (chest pain due
    to inadequate blood flow to the heart) that triggered an arrhythmia. He then
    stated that Eddie’s stress and exertion had nothing to do with his death and
    that the angina-arrhythmia could have occurred anywhere. However, as noted
    16
    above Dr. Roseman stated that angina “is typically aggravated by exertion or
    emotional stress . . . .”
    Because of these inconsistencies, along with Dr. Roseman’s inaccurate
    understanding of the facts and his misunderstanding of the law, Dr. Roseman’s
    opinion lacks the “relevant consequence to induce conviction in the minds of
    reasonable men.” 
    Smyzer, 474 S.W.2d at 369
    . Therefore, his opinion is not
    evidence of substance and the Court of Appeals correctly reversed the Board
    and remanded to the ALJ for an award of benefits.
    IV. CONCLUSION.
    For the foregoing reasons, We affirm the Court of Appeals. This matter is
    remanded to the ALJ for entry of an award in favor of the Estate.
    All sitting. Cunningham, Hughes, Keller, Noble, Venters and Wright, JJ.,
    concur. Minton, C.J., dissents by separate opinion,
    MINTON, C.J. DISSENTING: Respectfully, I dissent. The Service Center
    argues that the Court of Appeals erred by substituting its opinion of the
    evidence for the ALJ’s. Specifically, the Service Center argues that Dr.
    Roseman’s medical opinion constituted substantial evidence that Eddie’s death
    was not work related. I agree. Dr. Roseman’s opinion is thorough, and the ALJ
    was within his discretion to rely upon it. The ALJ, as fact-finder, has the sole
    discretion to judge the credibility of testimony and weight of evidence.
    Paramount Foods, Inc. v. Burkhardt, 
    695 S.W.2d 418
    (Ky. 1985). And the Court
    of Appeals exceeded its appellate role by reweighing the evidence. We should
    reverse the Court of Appeals’ decision. But instead of correcting the Court of
    17
    Appeals’ error, the Majority magnifies it by taking an even deeper dive into the
    fact-finding function that belongs to the ALJ. We would do well to remember
    the responsibility of this Court in Workers’ Compensation cases “is to address
    new or novel questions of statutory construction, or to reconsider precedent
    when such appears necessary, or to review a question of constitutional
    magnitude.” Western Baptist Hosp. v. Kelly, 
    827 S.W.2d 685
    , 688 (Ky. 1992).
    I dissent.
    COUNSEL FOR APPELLANT:
    Richard Christion Hutson
    Whitlow, Roberts, Houston & Straub, PLLC
    COUNSEL FOR APPELLEE:
    Paula Gay Richardson
    David Allen Barber
    Richardson, Barber 85 Williamson, PSC
    18
    

Document Info

Docket Number: 2015-SC-000676-WC

Citation Numbers: 503 S.W.3d 881, 2016 Ky. LEXIS 568

Judges: Cunningham, Hughes, Keller, Noble, Venters, Wright, Minton

Filed Date: 12/15/2016

Precedential Status: Precedential

Modified Date: 10/19/2024