Cary Dobson v. K & T Switching ( 2021 )

RENDERED: NOVEMBER 19, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0550-WC
CARY DOBSON APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-18-79453
K & T SWITCHING; HONORABLE
GRANT ROARK, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, CETRULO, AND JONES, JUDGES.
JONES, JUDGE: Cary Dobson has petitioned this Court for review of a decision
of the Workers’ Compensation Board (the Board), which affirmed the November
30, 2020 opinion, order, and award rendered by the Administrative Law Judge
(ALJ). On appeal, Dobson asserts the Board erred when it affirmed the ALJ’s
dismissal of Dobson’s claim seeking benefits for his low back injury. Having
reviewed the record in conjunction with all applicable legal authority, we affirm
the Board.
I. BACKGROUND
During the relevant time period, Dobson was employed by the
Appellee, K & T Switching (K&T), as a switcher/driver. Dobson’s primary job
duty was to switch truck trailers in the docks at Ford Motor Company’s Louisville,
Kentucky, assembly plant. While on duty, Dobson had to switch a trailer
approximately every fifteen to twenty minutes. Switching the trailers required
Dobson to climb in and out of the trucks. On May 31, 2018,1 Dobson fell while
dismounting from one of the trucks. He experienced immediate pain in his knee
and notified his supervisors at K&T.
K&T referred Dobson to Baptist Health Occupational Medicine
(“Baptistworx”) for treatment. Initially, Baptistworx restricted Dobson from
returning to work due to an injury to his right knee and prescribed physical
therapy. After Dobson’s condition failed to improve, an MRI of Dobson’s right
knee was ordered. Following the MRI, Dobson was referred to Dr. Kittie George,
a surgical orthopedist. Baptistworx’s records do not reflect that Dobson made any
complaints concerning his back while in treatment there.
1
In its opinion, the Board incorrectly stated that the date of injury was May 31, 2019. A review
of the underlying record, however, confirms that Dobson and K&T stipulated that the date of
injury was May 31, 2018.
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Dr. George diagnosed Dobson as having a complex right medial
meniscus tear. She opined that Dobson’s fall caused the tear. Dr. George
recommended Dobson have surgery on his right knee to repair the tear, and she
performed the surgery in June 2018. K&T provided temporary medical and wage-
related compensation to Dobson as related to the initial tear, surgery, and recovery.
At first, Dobson seemed to be recovering well from his knee surgery.
However, in January 2019, Dobson complained to Dr. George that he was
experiencing more pain in his knee. Dr. George subsequently diagnosed Dobson
as having a recurrent tear and recommended a second surgery. Dr. George
performed the second surgery in June 2019. K&T did not accept liability for the
second tear.
Dobson filed a Form 101 Application for Resolution of Injury Claim
on February 8, 2019, alleging that he injured “multiple body parts” as a result of
his May 31, 2018 fall. Dobson moved to bifurcate his claim to determine the
threshold issue of whether the ongoing condition of his right knee and
recommended second surgery were related to his work fall. The ALJ granted the
motion and bifurcated Dobson’s claim. Following an evidentiary hearing at which
Dobson was the only witness and a review of the other evidence of record,
including medical reports of Dr. George and Dr. Frank Bonnarens, the ALJ
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determined that “the second tear and the need for the second surgery [were] work-
related and compensable.” Record (R.) at 315.
Thereafter, the parties participated in additional discovery related to
the remaining portions of Dobson’s claim. Dobson’s alleged back injury is the
only issue remaining as part of this appeal; accordingly, we will limit our
discussion to the proof with respect to that portion of Dobson’s claim.
Dr. George and Dr. Joseph Werner treated Dobson following his work
injury. Dr. George submitted a written opinion letter stating that while she
provided treatment primarily for Dobson’s right knee, he had complained to her
about neck and back pain. Dr. George referred Dobson to Dr. Werner for
treatment for his neck and back. Dr. George affirmatively opined that: “based on
[Dobson’s] initial complaints of not only knee but also back and neck pain that all
3 [three] are directly related to his [May 31, 2018] fall.” R. at 346. Dr. Werner
provided a more detailed opinion as follows:
Cary Dobson has been under treatment for injuries which
occurred in a work accident documented to have
occurred on May 31, 2018. I have been treating him for
back, and to a lesser extent neck pain which resulted
from that injury. He has an L4-5 spondylolisthesis and
some associated degenerative findings along with mild
degenerative changes in the cervical spine from which he
never suffered major medical issues i.e. significant
treatment or work absences. Since the accident in
question he has obviously [been] busy with visits to Dr.
George and to me, to physical therapy and has missed
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work, not to mention continues to suffer lumbar back
pain.
The L4-5 spondylolisthetic anatomic lesion was clearly
pre-existing, yet the current severe symptoms were
activated by the accident in question, and he remains
under treatment for symptoms which resulted from that
accident.
R. at 344.
In addition to his treating physicians, Dr. James Farrage and Dr.
Robert Sexton submitted independent medical evaluation (IME) reports with
respect to Dobson’s back complaints. In his IME, Dr. Farrage opined that
Dobson’s altered gait following his two back surgeries “exacerbated [Dobson’s]
underlying conditions of cervical spondylosis and lumbar spondylolisthesis
bring[ing] those conditions into a disabling reality.” R. at 415. Dr. Sexton
disagreed. He noted that Dobson’s “symptoms do not correlate to his objective
workup and [are] suggestive of malingering.” Dr. Sexton opined that there was no
objective medical documentation “to support that Mr. Dobson acquired a cervical
or lumbar injury as a result of the work event of 5-31-2018.” R. at 425.
Dr. Peter Kirsch conducted a physician peer review of Dobson’s
medical records. In his report, Dr. Kirsch noted that the first mention of any back
pain in Dobson’s records appeared in Dr. George’s July 26, 2018 treatment notes.
Ultimately, Dr. Kirsch concluded that Dobson’s “cervical and lumbar complaints
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are not related to the work injury of 05/31/2018 based on the information in
[Dobson’s] chart.” R. at 111.
In addition to the medical proof, Dobson testified by deposition and
during a final hearing before the ALJ. Dobson testified that before his May 31,
2018 work injury, he had not experienced any recurrent pain or problems with his
back. After the work incident, Dobson stated that he began to have neck and low
back pain. Dobson testified that he reported his back pain to Baptistworx and he
does not know why his reports are not included in his initial treatment records.
Dobson relayed that his back pain had gotten progressively worse. At the final
hearing, Dobson described his back pain as a near constant “aching like a
toothache,” preventing him from sitting for any length of time. On cross-
examination, Dobson admitted that about fifteen years prior to his May 2018 fall at
work, he had chiropractic treatment for a back injury he sustained in a motor
vehicle accident. On redirect, Dobson testified that the back injury he sustained in
the motor vehicle accident had completely resolved well before his work fall in
2018.
Following his review of the evidence of record, the ALJ rendered a
final opinion in which he concluded that Dobson failed to prove that his current
back problems were caused by his May 31, 2018 work fall. In pertinent part, the
ALJ’s opinion provides:
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As this claim now stands, the compensability of
[Dobson’s] right knee condition has already been
established. However, the parties disagree as to whether
[Dobson’s] alleged lower back condition is causally
related to the effects of his May 31, 2018 injury. [K&T]
maintains [Dobson] did not report any lower back
symptoms until three months after the work injury and
that his current lower back complaints are due to
unrelated, age appropriate degenerative conditions not
caused or worsened by the work injury. In support of
its position, [K&T] relies on its experts, Dr. Kirsch and
Dr. Sexton, each of whom concluded [Dobson] had no
identifiable lumbar injury that could be related to the
May 31, 2018 incident. For his part, [Dobson] relies
on the opinions of his treating physicians, Dr. George and
her partner, Dr. Werner, who each concluded [Dobson’s]
preexisting lumbar degenerative changes were made
symptomatic by the May 31, 2018 incident.
....
In considering the issue of causation in a case such as
this, the Administrative Law Judge considers the
opinions of the treating physician(s) especially carefully,
as a treating physician is usually most familiar with the
onset and etiology of their patient’s complaints. In this
case, both Dr. George and Dr. Werner concluded
[Dobson’s] neck and back problems were causally related
to the May 31, 2018 work injury. However, as [K&T]
points out, there is no record of any complaints of lower
back pain until September 4, 2018, more than
three months after the work injury. Prior to September 4,
2018, [Dobson] was treated at Baptistworx at least six
times and had seen Dr. George twice, and none of those
records mention any complaints of lower back pain. In
addition, Dobson’s physical therapy notes after
the injury also make no mention of any lower back
complaints. Given this quite significant lapse in time
before the first documented complaints of lower back
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pain, Dr. Werner’s, Dr. George’s, and. Dr. Farrage’s
naked conclusions as to causation are not especially
persuasive. Neither treating physician explained how the
work injury could have aroused pre-existing dormant
degenerative lumbar changes and not be reported for over
three months afterward.
Similarly, Dr. Farrage explained how the mechanism of
the work injury could have caused the lumbar
complaints, but he also failed to explain why Dobson
reported no symptoms for over three months
following the work injury.
Given these facts, the ALJ is simply not persuaded
Dobson has carried his burden of proving his lower back
condition is work related, as none of his experts provided
any meaningful opinion on causation that links the
mechanism of injury to the lower back complaints and
explains the 3+ month delay in reporting symptoms. The
ALJ is fully aware that [Dobson] testified he tried to
report his back problems when initially treated at
Baptistworx but they would not listen to him. However,
the ALJ finds it difficult to credit that [Dobson] would
have continually reported back pain and that such
complaints would continue to be ignored and not
documented. Moreover, his purported explanation does
not touch upon why Dr George’s records do not
document any complaints of lower back pain in his first
two treatments with her. For these reasons, it is
determined [Dobson] has not carried his burden of
proving [a] work-related lower back condition, and that
portion of his claim must be dismissed.
R. at 549-50.
Dobson appealed to the Board. The Board affirmed the ALJ’s
conclusion that Dobson’s back condition was not related to the work injury as
follows:
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Dobson appeals, arguing the ALJ committed
reversible error by dismissing his claim for a lumbar
injury. As the claimant in a workers’ compensation
proceeding, Dobson had the burden of proving each of
the essential elements of his claim. Snawder v. Stice, 576
S.W.2d 276 (Ky. App. 1979). Because Dobson was not
successful in his burden, the question on appeal is
whether the evidence compels a different result. Wolf
Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). “Compelling evidence” is defined as evidence
that is so overwhelming, no reasonable person could
reach the same conclusion as the ALJ. REO Mechanical
v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).
KRS[2] 342.285 grants an ALJ as fact finder the sole
discretion to determine the quality, character, and
substance of evidence. Square D Co. v. Tipton,
862 S.W.2d 308 (Ky. 1993). An ALJ may draw
reasonable inferences from the evidence, reject any
testimony, and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same
witness or the same adversary party’s total proof.
Jackson v. General Refractories Co., 581 S.W.2d 10(Ky. 1979); Caudill v. Maloney’s Discount Stores, 560
S.W.2d 15 (Ky. 1977). Although a party may note
evidence supporting a different outcome than reached by
an ALJ, such proof is not an adequate basis to reverse on
appeal. McCloud v. Beth Elkhorn Corp., 514 S.W.2d 46(Ky. 1974). Rather it must be shown there was no
evidence of substantial probative value to support the
decision. Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986).
The function of the Board in reviewing an ALJ’s decision
is limited to a determination of whether the findings
made are so unreasonable under the evidence they must
be reversed as a matter of law. Ira A. Watson
Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
2
Kentucky Revised Statutes.
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The Board, as an appellate tribunal, may not usurp the
ALJ’s role as fact finder by superimposing its own
appraisals as to weight and credibility or by noting other
conclusions or reasonable inferences that otherwise
could have been drawn from the evidence. Whittaker v.
Rowland, 998 S.W.2d 479 (Ky. 1999).
We note that neither party filed a Petition for
Reconsideration. In the absence of a Petition for
Reconsideration, on questions of fact, the Board is
limited to a determination of whether substantial
evidence in the record supports the ALJ’s Conclusion.
Stated otherwise, where no Petition for Reconsideration
was filed prior to the Board’s review, inadequate,
incomplete, or even inaccurate fact finding on the part of
an ALJ will not justify reversal or remand if there is
substantial evidence in the record supporting the ALJ’s
ultimate conclusion. Eaton Axle Corp v. Nally, 688
S.W.2d 334 (Ky. 1985); Halls Hardwood Floor Co. v.
Stapleton, 16 S.W.3d 327 (Ky. App. 2000). Thus, our
sole task on appeal is to determine whether substantial
evidence supports the ALJ’s decision. We conclude it
does.
The ALJ was confronted with conflicting medical
evidence on the issue of whether Dobson suffered a
lumbar injury as a result of the work incident of May 31,
2018. The ALJ specifically noted he did not find the
evidence from Dr. Werner, Dr. George, and Dr. Farrage
persuasive and deemed their opinions “naked
conclusions” as none of the physicians explained how the
mechanism of injury could have aroused pre-existing
dormant conditions, not be reported to a medical provider
for three months, and cause no symptoms for over three
months after the work incident. In addition, the record
contains substantial evidence in the form of the opinions
of Drs. Sexton and Kirsch that Dobson did not suffer a
lumbar spine injury as alleged.
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We believe the ALJ properly exercised his discretion in
determining Dobson did not meet his burden of proving
his lumbar spine condition was caused by the work-
related incident of May 31, 2018. The decision is
supported by substantial evidence and a contrary result is
not compelled.
R. at 607-09.
This appeal followed.
II. STANDARD OF REVIEW
Pursuant to KRS 342.285, the ALJ is the sole finder of fact in
workers’ compensation claims. Our courts have construed this authority to mean
the ALJ has the sole discretion to determine the quality, character, weight,
credibility, and substance of the evidence and to draw reasonable inferences from
that evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky.
1985); McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). Moreover,
an ALJ has sole discretion to decide whom and what to believe 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 adversary party’s total proof.
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). On review,
neither the Board nor the appellate court can substitute its judgment for that of the
ALJ as to the weight of evidence on questions of fact. Shields v. Pittsburgh and
Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982).
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If the fact-finder finds in favor of the person having the burden of
proof, the burden on appeal is only to show that there was some substantial
evidence to support the decision. See Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986). However, if the ALJ finds against the party having the burden of
proof, the appellant must “show that the ALJ misapplied the law or that the
evidence in her favor was so overwhelming that it compelled a favorable finding.”
Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005).
On appeal, our role is to correct the Board only where the “Board has
overlooked or misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross injustice.” ViWin Tech
Windows and Doors, Inc. v. Ivey, 621 S.W.3d 153, 157 (Ky. 2021) (quoting
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).
III. ANALYSIS
Dobson, as the claimant, had the burden of proving every element of
his claim, including causation. Wilkerson v. Kimball International, Inc., 585
S.W.3d 231, 235 (Ky. 2019) (citing Gibbs v. Premier Scale Co./Ind. Scale Co., 50
S.W.3d 754, 763 (Ky. 2001)). Because the ALJ found against Dobson with respect
whether his work-related fall caused his low back injury, and because he carried
the burden of proof, Dobson must establish on appeal that the favorable evidence
was so overwhelming as to compel a finding in his favor. Wilkerson, 585 S.W.3d
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at 236. “Evidence that would have supported but not compelled a different
decision is an inadequate basis for reversal on appeal.” Gaines Gentry
Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012).
On appeal, Dobson posits that the ALJ and the Board erred because
“there is simply no other contributing factor in the record that could be blamed for
[his] current disabling condition in the lower back.” He goes on to cite various
portions of Dr. Farrage’s medical opinion which he claims compels a decision in
his favor.
While Dobson has pointed to evidence which supports a finding in his
favor, he has failed to demonstrate that the record as a whole compels such a result.
Most problematic for Dobson, Dr. Sexton, who examined Dobson, explicitly stated
in his opinion that he believed Dobson was possibly malingering as his “symptoms
do not correlate to his objective workup.” Ultimately, Dr. Sexton concluded that
the work incident on May 31, 2018 did not cause Dobson to suffer a cervical or
lumbar injury.
The ALJ’s opinion demonstrates that he reviewed all the relevant
medical evidence in conjunction with Dobson’s testimony. Having done so, the
ALJ placed more weight on the opinions of Drs. Sexton and Kirsch than he did on
the opinions of Drs. George, Werner, and Farrage. This was the ALJ’s
prerogative. Even though we might have reached a different conclusion, we are
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not at liberty to substitute our opinion for that of the ALJ where it is clear that the
ALJ reached a reasoned conclusion supported by competent evidence of record.
Accordingly, we cannot hold that the Board erred when it affirmed the ALJ.
IV. CONCLUSION
For the reasons set forth above, we affirm the Workers’ Compensation
Board’s opinion of April 16, 2021.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Ched Jennings Lyn Douglas Powers
Louisville, Kentucky Louisville, Kentucky
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