Jennifer Whisman v. Toyota Motor Manufacturing Kentucky, Inc.

RENDERED: MARCH 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1318-WC
JENNIFER WHISMAN APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-21-00540
TOYOTA MOTOR
MANUFACTURING KENTUCKY,
INC.; HONORABLE W. GREG
HARVEY, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: JONES, KAREM, AND LAMBERT, JUDGES.
JONES, JUDGE: The appellant, Jennifer Whisman, seeks review of the October
13, 2022, opinion of the Workers’ Compensation Board (“Board”). Therein, the
Board affirmed the Administrative Law Judge’s (“ALJ”) dismissal of Whisman’s
occupational disease claim. Having reviewed the record and being otherwise
sufficiently advised, we affirm the Board.
I. BACKGROUND
Whisman began working at Toyota Motor Manufacturing Inc.,
(“Toyota”) on August 1, 2011, when Kelly Services, a temporary employment
agency, assigned her to Toyota’s Georgetown, Kentucky plant. Subsequently, she
became a regular, fulltime Toyota employee on November 18, 2013; she continued
working at Toyota’s Georgetown plant until September 11, 2020, when she went
on medical leave for her sinuses.
On April 1, 2021, Whisman filed a Form 102 Application for
Resolution of an Occupational Disease Claim with the Kentucky Department of
Workers’ Claims (“Department”). According to Whisman, while working at
Toyota, she was exposed to coolant mist that contained Pseudomonas.1 Whisman
alleges that inhaling the mist caused her to develop chronic sinusitis, and that her
sinus cavities are now colonized with Pseudomonas.
The Board thoroughly and accurately summarized the proof in this
case. We adopt the Board’s summary as our own as follows:
Whisman worked at various jobs, and in multiple parts of
the facility while working for Toyota. Her last job there
involved assembling four-cylinder engines. Whisman
testified that in the past 10 years she has had no health
1
Pseudomonas aeruginosa is a common bacteria found throughout the environment.
-2-
problems other than those involving her sinuses, except
for two unrelated right knee surgeries. She began having
problems with her sinuses in 2013 which initially caused
some dizziness. She underwent sinus surgery by Dr.
Ronald George Shashy in August 2014, and she returned
to work at Toyota a couple of months later. She testified
she is puzzled as to why Dr. Shashy’s office notes
indicate she was having problems due to exposure to
mold in her home. She denied ever having such
exposure. Whisman has smoked for over twenty years.
At times, she smoked a pack of cigarettes per day, and
she testified she currently smokes less than a pack per
week.
Whisman’s sinus problems flared up again in 2018. She
has since treated with numerous otolaryngologists,
physicians, allergists, and facilities for her conditions.
She underwent a second sinusitis surgery by Dr. Michael
Cecil on March 19, 2020, and she testified she has
undergone three additional procedures since that date.
She testified lab studies ordered by Dr. Cecil indicate she
has a Pseudomonas bacterial infection. She has been on
multiple regimens of various antibiotic treatments for her
sinus infections. She testified these were not general
antibiotics, but were tailored for her specific condition.
Whisman received short-term disability benefits, then
long-term disability benefits for the periods of work she
missed from Toyota. She continues to receive the long-
term disability benefits.
Whisman testified she believes her condition was caused
by exposure to vapors and mists at Toyota. She does not
believe she can return to work at Toyota due to her
dizziness, blurred vision, breathing problems, and
swelling. She also has varying symptoms including neck
swelling, throat clearing, drainage, nose blowing, swollen
lymph nodes/glands, and facial pain. Whisman contacted
OSHA2 who she indicated tested the machines at Toyota.
2
Occupational Safety and Health Administration.
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She noted the testing reflected Pseudomonas was present
in a coolant used in the manufacturing process at Toyota.
Whisman filed a report from Ray Fouser, P.E., who
performed testing at her residence on October 27, 2020.
The report indicates a sample from the master bathroom
sink in her house tested negative for Pseudomonas. We
note references were made to an OSHA investigation
report, and there were references to exhibits in the
depositions of both Dr. Cecil and Dr. Archer; however,
there is no indication in the LMS records that such report
was ever filed into evidence. Although referenced, no
exhibits were attached to any of the depositions.
In support of her claim, Whisman filed Dr. Cecil’s
January 18, 2021 office note. He diagnosed her with
chronic sinusitis. He noted she had recently undergone
surgical debridement and she remained symptomatic
despite normal endoscopy results. He noted she was
taking oral and topical antibiotics. He additionally noted
she smokes a half pack of cigarettes per day. Dr. Cecil
testified by deposition on November 29, 2021. He has
been an otolaryngologist since 2006. He first saw
Whisman for treatment on February 19, 2020. She
presented with symptoms of chronic sinusitis, including
facial pain and pressure, nasal obstruction, mucus, and
drainage from the nasal cavity. A CT-scan revealed
evidence of chronic sinus infection. He noted she had
previously undergone sinus surgery, and he
recommended a revision surgery. He also noted that
during his course of treatment, Pseudomonas has always
been present in Whisman’s cultures. He additionally
noted Whisman has undergone multiple nasal
endoscopies and multiple cultures have been taken.
Dr. Cecil only performed one surgery on Whisman’s
sinuses. He performed three or four nasal washings
afterward, and he prescribed several medications. He
does not believe additional surgery is necessary. He
diagnosed Whisman with chronic sinusitis. He stated she
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was theoretically exposed to Pseudomonas at work,
although he did not specifically research this issue. He
testified this reference was based upon Whisman’s
narrative. He stated Whisman has reached maximum
medical improvement (“MMI”). He recommended she
use saline rinses and nasal steroid sprays. He stated it is
reasonable for Whisman to return to work at Toyota.
When he last saw Whisman on October 25, 2021, her
sinuses were normal, and her primary complaints were
with unrelated shortness of breath.
Dr. Cecil testified he is unsure if the Pseudomonas is
merely present or causing Whisman’s symptoms. He
noted she has had sinus problems for a long time. He
additionally noted there is a difference between a
Pseudomonas infection and a colonization. He stated
Pseudomonas is a common finding in chronic sinusitis.
He noted it is possible, not probable, that Pseudomonas
caused Whisman’s colonization. He also testified he is
unsure as to what the OSHA report reflects. When asked
if exposure to Pseudomonas in the coolant at Toyota
could independently cause Whisman’s disease, Dr. Cecil
specifically testified as follows:
I think that that’s – I mean it’s – you know,
I’m not an occupational hazard physician.
But if there’s Pseudomonas in the potential
air and she’s getting Pseudomonas in her
respiratory system, you know, just putting
two and two together it makes sense that that
could be where this is coming from.
Dr. Cecil testified that his statement regarding how
Whisman contracted Pseudomonas was expressed within
a reasonable degree of medical probability. Later in his
deposition, Dr. Cecil stated, “Maybe probable’s not the
right word not having known this, but I’m kind of putting
two and two together so I think it’s potentially a cause.”
He also testified, “So, you know, I think it’s probably
more reasonable to put ‘possible.’ I don’t know that I’m
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the person to be able to determine if it directly came from
the coolant or where it came from.”
When asked if exposure to the coolant at Toyota caused
Whisman’s sinus problems, Dr. Cecil testified verbatim
as follows:
I definitely – well, I mean I don’t know
about independently. I mean certainly I’ve
operated on her before there’s been
purulence in her sinus cavities that
grew Pseudomonas so that was certainly a
pathogenic organism that was in her sinuses
and was causing it. I don’t know if that’s
the only cause of it, but certainly
that was part of it.
Dr. Cecil testified that although he reviewed an OSHA
report that identified Pseudomonas, it did not indicate the
level of exposure. He also testified he does not have the
experience to know what the exposure would mean. He
likewise testified he has no idea whether Pseudomonas in
coolant within a machine would be an exposure causative
of her condition.
Whisman subsequently filed numerous office records
from Dr. Cecil representing 15 office visits from March
27, 2020 to January 18, 2021. Dr. Cecil treated Whisman
for sinusitis and asthma. His treatment included a
surgery consisting of a debridement, multiple endoscopic
washings, and medication. Dr. Cecil noted Whisman’s
20-year history of smoking a half of a pack of cigarettes
daily. He noted she has chronic sinusitis, and she has
been dealing with Pseudomonal sinusitis for a significant
period. Whisman also filed Dr. Cecil’s records for
treatment on five occasions between March 3, 2021 and
July 14, 2021.
Those records reflect treatment for chronic sinusitis,
dental pain, pressure in her face, blurry vision, and nasal
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congestion. Routine cultures dated April 12, 2021 and
June 17, 2021, revealed heavy growths of Pseudomonas.
Whisman filed an application for short-term disability
benefits she completed for Lincoln Financial Group on
July 6, 2020. Dr. Cecil completed a portion of that form
on July 10, 2020. Dr. Cecil noted Whisman has chronic
sinusitis. He also noted she was unable to work due to
the national health crisis. The form does not reflect
whether the condition was work-related.
Dr. James Owen evaluated Whisman at her attorney’s
request on December 21, 2021. He stated Whisman has
had recalcitrant Pseudomonas since 2018, which has
been treated intermittently, and her condition has
worsened. He stated her condition is due to exposure to
engine coolant spray in her workplace. Dr. Owen
diagnosed Whisman with chronic sinusitis exacerbated
by her returns to work, which is associated with chronic
facial pain. He noted he could not make a definitive
diagnosis regarding her facial pain. Dr. Owen opined her
conditions were caused by her workplace exposure. He
found she has reached MMI. He assessed a 6%
impairment rating based upon the American Medical
Association Guides to Evaluation of Permanent
Impairment, 5th Edition (“AMA Guides”). He found she
had no underlying conditions prior to 2014, and none of
her impairment rating is due to pre-existing active
conditions. Dr. Owen additionally stated Whisman does
not have the physical capacity to return to the type of
work performed at the time of her injury.
Dr. Brent Mortenson, a maxillofacial surgeon, examined
Whisman on April 28, 2022. Whisman complained of
pain and swelling in the left submandibular space. He
noted she had a tender lymph node in that area. He also
noted she has experienced sinus issues for which she was
treating with Dr. Cecil. He found her oral examination
and dentition within normal limits. Dr. Mortenson stated
he believed her problems stem from her sinuses.
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Dr. Archer evaluated Whisman on June 22, 2021, as the
university evaluator pursuant to KRS[3] 342.315. He
noted Whisman complained of migraine headaches,
dizziness, atypical facial pain, and sinusitis beginning in
2013. At her evaluation, Whisman attributed all her
symptoms to the work environment. Dr. Archer
diagnosed Whisman with atypical facial pain, migraine
headaches (by history), no acute or chronic sinus disease,
and non-otologic dizziness. He determined she is not
entitled to an impairment rating pursuant to the AMA
Guides attributable to her complaints allegedly caused by
her work environment. Dr. Archer found neither
Whisman’s condition nor her complaints were caused by
her work environment. He likewise determined she has
no pulmonary impairment caused by the work
environment. He determined Whisman has the physical
capacity to return to her previous work at Toyota. He
recommended no restrictions. Dr. Archer noted
Whisman has an eleven pack-year smoking history, and
she continues to smoke.
Dr. Archer testified by deposition on December 13, 2021.
He is a board-certified ENT (otolaryngologist). Dr.
Archer testified that Dr. Cecil is respected in the medical
community; however, he does not agree with everything
Dr. Cecil described. He noted Dr. Cecil diagnosed
Whisman with chronic sinusitis on July 22, 2021. Dr.
Archer did not review a 2020 CT-scan indicating
Whisman has a chronic infection. He stated
Pseudomonas is a chronic bacteria seen in infectious
sinusitis. When Dr. Archer examined Whisman, she had
no abnormal findings so there was no basis to assess an
impairment rating pursuant to the AMA Guides. He
noted no pathological findings were present except for
those consistent with her previous surgeries, meaning
some bone structure had been removed. Dr. Archer
3
Kentucky Revised Statutes.
-8-
does not believe Whisman’s complaints are caused by
chronic sinusitis. Dr. Archer specifically testified
verbatim as follows:
Chronic sinusitis is classically defined as
chronic infection of the sinuses that have
lasted three months or longer, persisted
despite medical or surgical management. It
can be caused by any number of things that
can block the sinuses, including allergies,
mass lesions, like polyps, anatomic variance
like septal deviations and abnormal turbinate
structures. It can be caused by bacteria,
fungus. Viral inflammation can set it up as
well. And when the sinuses get blocked,
they can potentially stay blocked and give
that chronic nature to an acute sinus
infection.
Dr. Archer additionally testified verbatim as follows:
Her symptoms were pretty much out of
proportion to what her findings were. She
had on my examination and on Dr. Saini’s
previous examination two years prior
complaints of atypical facial pain and
neither his examination nor my examination
identified any pathology on her in her
sinuses. And because she’s had extensive
sinus surgery, we actually have the
opportunity of placing scopes into the
sinus, not just into the nose, to examine
those areas and the scans that were referred
to at the time did not show any evidence of
acute or chronic sinusitis either. And so the
atypical facial pain can come from many
different regions and we recommended that
she see basically a orofacial pain clinic here
for further evaluation of her complaints.
-9-
Toyota submitted Dr. Shashy’s treatment records from
July 11, 2014 through September 16, 2014. Those
records reflect Whisman initially reported problems with
migraine headaches, dizziness, fatigue, and facial
swelling. Whisman reported she had weight gain, vision
loss, eye pain, ear drainage, and hearing loss. Dr. Shashy
diagnosed her with chronic sinusitis, mucus retention,
chronic rhinitis, and remnants of migraine, not otherwise
specified. On July 16, 2014, Dr. Shashy recommended
nasal irrigation with normal saline, endoscopic sinus
surgery, and possibly a septoplasty. Dr. Shashy
proceeded with the septoplasty, and followed up with
Whisman on August 22, 2014. He noted she had
undergone a septoplasty, a partial resection of the inferior
turbinate on both sides, a total ethmoidectomy on both
sides, a middle meatal anstrostomy on both sides, a
sphenoidectomy on both sides, and sinus surgery. He
noted it was too early to assess her nasal obstruction and
whether she had any recurrent sinus infections. In
addition to his previous diagnoses, Dr. Shashy noted
Whisman had a deviated septum. Dr. Shashy saw
Whisman again on August 26, 2014. She presented
for sinus debridement. In addition to the previous
diagnoses, he noted she has tobacco use disorder and
migraines. Dr. Shashy next saw Whisman on September
9, 2014. She continued to complain of dizziness and
allergic rhinitis. He again saw Whisman on September
16, 2014 for a follow up regarding her sinuses and
postnasal drip.
Toyota filed Dr. Leslieann Asbury’s October 24, 2018
office note. Dr. Asbury is with Ear, Nose, and Throat
Specialists of Central Kentucky. She noted
Whisman’s history of sinus problems, and the previous
surgery performed by Dr. Shashy. Whisman’s symptoms
included excessive dizziness, ear pain and fullness,
pain and pressure in the right cheek area, and dental pain.
Whisman reported her symptoms never resolved after the
previous surgery. Her symptoms recently increased after
moving molded furniture. Dr. Asbury diagnosed
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Whisman with seasonal allergic rhinitis due to fungal
spores, a history of sinus surgery, and dizziness.
(Record (“R.”) at 454-63.)
The ALJ held a final hearing on April 1, 2022, after which the parties
submitted post-hearing briefs. On May 31, 2022, the ALJ rendered his opinion and
order dismissing Whisman’s claim on the basis that she had not submitted
sufficient proof on the element of causation. Specifically, the ALJ concluded:
There is no doubt Whisman has chronic sinusitis. The
evidence on the cause of that condition is murky. It may
be that Whisman was exposed to Pseudomonas at work
but the exposure itself and any link between it and the
onset of her symptoms is questionable. Dr. Archer’s
opinion on the question of causation is what is most
important to the ALJ. He did not find a link between
Whisman’s alleged work-related exposure and her
chronic sinusitis. In truth, the ALJ also interprets Dr.
Cecil’s testimony as being less than clear on the question
of causation. He did not have any expertise as to the
level of exposure or what would be required to cause the
onset of chronic sinusitis. In light of the foregoing, the
ALJ finds Whisman has failed to persuade the ALJ her
chronic sinusitis is the result of occupational exposure
to Pseudomonas. For that reason, her claim is dismissed.
(R. at 412.)
Whisman filed a petition for reconsideration which the ALJ denied.
Thereafter, she appealed to the Board. She asked the Board to reverse the ALJ’s
dismissal, arguing that the ALJ should not have afforded the University Evaluator,
Dr. Archer, presumptive weight or relied on his opinions because they were based
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on a substantially inaccurate or largely incomplete history, and therefore should
have been discounted pursuant to Cepero v. Fabricated Metals Corporation, 132
S.W.3d 839 (Ky. 2014). The Board affirmed the ALJ holding:
When the question of causation involves a medical
relationship not apparent to a layperson, the issue is
properly within the province of medical experts. Mengel
v. Hawaiian-Tropic Northwest and Central Distributors,
Inc., 618 S.W.2d 184, 186-187 (Ky. App. 1981).
Medical causation must be proven by medical opinion
within “reasonable medical probability.” Lexington
Cartage Company v. Williams, 407 S.W.2d 395 (Ky.
1966). The mere possibility of work-related causation is
insufficient. Pierce v. Kentucky Galvanizing Co., Inc.,
606 S.W.2d 165 (Ky. App. 1980).
Whisman argues the ALJ erred by relying on medical
opinions which were based upon a corrupt history.
Specifically, Whisman contends Dr. Archer did not
review the entirety of the medical record, and was not
provided with the OSHA report, therefore he could not
competently provide any determination. She argues
Dr. Archer’s conclusions are so flawed and corrupt they
cannot constitute substantial evidence. Therefore, they
cannot be relied upon and should be excluded based upon
the holding in Cepero v. Fabricated Metals Corp. supra.
...
This claim is distinguishable from the facts in Cepero
and the Board does not conclude the doctors’ opinions
expressed were based on a corrupt history. In fact, Dr.
Archer noted Whisman’s history of sinus problems
including her surgical procedures. He did not have all
her medical records; however, his report generally
reflects an accurate history of her condition and
treatment. He also noted she reportedly attributed her
sinusitis to exposure of Pseudomonas at work. Dr.
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Archer, however, found there was no evidence Whisman
had sinusitis at the time of his examination. This case is
distinguishable from Cepero and we note that in this
instance there was no deception hoisted [sic] on the
medical examiners.
As fact-finder, the ALJ is entitled to pick and choose
among conflicting medical opinions. Pruitt v. Bugg
Brothers, 547 S.W.2d 123 (Ky. 1977). While Dr. Owen
offered a different opinion, and Dr. Cecil’s opinions were
equivocal, the ALJ chose to rely upon the opinion of Dr.
Archer, the university evaluator. We note KRS 342.315
states in relevant part:
[T]he clinical findings and opinions of the
designated evaluator shall be afforded
presumptive weight by administrative law
judges and the burden to overcome
such findings and opinions shall fall on the
opponent of that evidence. When
administrative law judges reject the clinical
findings and opinions of the designated
evaluator, they shall specifically state in the
order the reasons for rejecting that evidence.
KRS 342.315(2) generally requires affording
presumptive weight to the clinical findings and opinions
of a university evaluator. An ALJ has the discretion to
reject such testimony where it is determined the
presumption has been overcome by other evidence and
the reasons for doing so are expressly stated within the
body of the decision. Bullock v. Goodwill Coal Co., 214
S.W.3d 890, 891 (Ky. 2007); Morrison v. Home Depot,
197 S.W.3d 531, 534 (Ky. 2006); Magic Coal Co. v. Fox,
19 S.W.3d 88, 94-95 (Ky. 2000). Whether a party
overcomes the presumption established pursuant to KRS
342.315(2) is not an issue of law, but rather a question
of fact at all times subject to the ALJ’s discretion as fact-
finder to pick and choose from the evidence. Id. KRS
342.315(2) does not alter the claimant’s burden of
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persuasion but, “[t]o the extent that the university
evaluator’s testimony favors a particular party, it shifts to
the opponent the burden of going forward with evidence
which rebuts the testimony. If the opponent fails to do
so, the party whom the testimony favors is entitled to
prevail by operation of the presumption.” Id. at 96.
Accordingly, “clinical findings and opinions of the
university evaluator constitute substantial evidence with
regard to medical questions which, if uncontradicted,
may not be disregarded by the fact-finder.” Id.
...
The ALJ based his decision on the opinions of Dr.
Archer, the university evaluator, and to a lesser extent the
testimony and office notes of Dr. Cecil in determining
Whisman failed to establish she sustained an injurious
exposure to Pseudomonas at Toyota, and in dismissing
her claim. As noted by the ALJ, Dr. Cecil testified he
could not state Whisman sustained an injurious exposure
to Pseudomonas at work which would independently
cause her sinusitis. Dr. Archer opined Whisman did not
have sinusitis when he examined her, but he noted her
history of that condition. Although Dr. Owen opined
Whisman’s condition was caused by her exposure to
Pseudomonas at work, that only constitutes a contrary
opinion upon which the ALJ could have relied, and does
not compel a contrary result.
Whisman was required to first prove she has chronic
sinusitis, and then she must show her condition was
caused by an exposure at work. Likewise, she was
required to prove such exposure could independently
cause her condition. The ALJ determined Whisman first
experienced sinus problems long before she worked in
the portion of Toyota’s facility where Pseudomonas was
purportedly found. There is also no evidence of record,
other than Whisman’s assertions, that Pseudomonas is
actually present at Toyota. Dr. Cecil testified he could
not determine whether any exposure at Toyota could
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have independently caused her condition. He noted there
is no evidence of the level of exposure, or whether
Pseudomonas within a machine could even cause an
exposure, and ultimately her sinusitis. We find the ALJ
appropriately reviewed the evidence and exercised his
discretion in determining Whisman failed to establish she
contracted sinusitis due to Pseudomonas she may have
encountered at Toyota. The ALJ enumerated the basis
for his dismissal of Whisman’s claim. The ALJ acted
within the scope of his authority in determining which
evidence to rely upon, and it cannot be said his
conclusions are so unreasonable as to compel a contrary
result. McCloud v Beth Elkhorn Corp., supra. The
ALJ’s determination is supported by substantial
evidence, and a contrary result is not compelled;
therefore, we affirm.
(R. at 468-72.) This appeal by Whisman 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,
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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 &
Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982).
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 [his] 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 & 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
Just as she did before the Board, Whisman argues to this Court that
the ALJ erred by relying on Dr. Archer’s report. She contends that the ALJ should
have disregarded Dr. Archer’s report because he did not review all her prior
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medical records and failed to correctly diagnose her as suffering from chronic
sinusitis.
In Cepero, an ALJ awarded a claimant benefits for an alleged work-
related knee injury based upon evidence from two doctors who indicated that his
knee condition was related to a work injury. However, neither doctor had been
informed that Cepero had suffered a severe knee injury several years prior.
Cepero, 132 S.W.3d at 842. The Board reversed the ALJ’s finding that the
doctors’ opinions were based upon substantial evidence and therefore sufficient to
support findings of causation. The Supreme Court of Kentucky affirmed, quoting
the Board’s holding:
[I]n cases such as this, 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.
Cepero, 132 S.W.3d at 842 (emphasis added).
In Eddie’s Service Center v. Thomas, 503 S.W.3d 881, 889 (Ky.
2016), the Supreme Court of Kentucky applied Cepero to hold that an ALJ has the
discretion to reject a medical report based on a substantially inaccurate
understanding of the facts and medical history. Id. at 887-89. Our Supreme Court
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held that because of a number of internal consistencies within the report, along
with the doctor’s inaccurate understanding of the facts, the report could not
constitute substantial evidence. Id. at 889. “Evidence is substantial if it is of
‘relevant consequence having the fitness to induce conviction in the minds of
reasonable men.’” Id. at 887 (quoting Smyzer v. B.F. Goodrich Chemical Co., 474
S.W.2d 367, 369 (Ky. 1971)).
Finally, this Court held in GSI Commerce v. Thompson, 409 S.W.3d
361 (Ky. App. 2012), that an ALJ was not required to disregard a medical report
that was “not ‘unsupported by other credible evidence.’” Id. at 365. In that case,
an employer contended that a physician’s report could not be considered because it
did not mention a prior relevant injury; however, the doctor explained during
deposition that he was aware of the claimant’s past injury. Id. We differentiated
between GSI Commerce and Cepero, stating “[i]n Cepero, there was a complete
omission of a significant and clearly relevant past injury . . . [and] the medical
opinion described in Cepero was completely unsupported by any other credible
evidence.” Id. at 364 (emphasis in original). Conversely, in GSI Commerce, the
physician making the report was aware of the prior injury and there was other
evidence before the court corroborating the physician’s opinion. Id. at 365.
We are not convinced that the facts before us are analogous to those
of Cepero or Eddie’s Service Center. Rather, we are persuaded that the facts
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before us most closely resemble those of GSI Commerce. Dr. Archer’s Form 108
report reveals that he had an accurate understanding of Whisman’s prior medical
history, even if he did not have access to all her prior medical records. He
specifically indicates in the report that Whisman’s sinus complaints dated back to
2013 and that she attributes those problems to her work. (R. at 93.)
Additionally, Dr. Archer conducted his own examination of
Whisman. He explained in his deposition that he did not note any “pathologic”
abnormalities when he examined her sinus cavities. (R. at 166.) He concluded that
while Whisman did have sinusitis at one time, she was not actively experiencing
chronic sinusitis at the time of his examination. He explained that in his opinion:
Her symptoms were pretty much out of proportion to
what her findings were. She had on my examination and
on Dr. Saini’s previous examination two years prior
complaints of atypical facial pain and neither his
examination or my examination identified any pathology
on her in her sinuses. And because she’s had extensive
sinus surgery, we actually have the opportunity of
placing scopes into the sinus, not just into the nose, to
examine those areas and the scans that were referred to at
the time did not show any evidence of acute or chronic
sinusitis either.
(R. at 167.) We cannot disagree with the Board’s decision refusing to direct the
ALJ to reconsider the evidence without consideration of Dr. Archer’s report.
Moreover, even though Dr. Cecil diagnosed Whisman with chronic
sinusitis, he clarified in his deposition that he was unable to conclude with
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reasonable medical probability that Whisman’s condition was caused by any
exposure in her workplace. He was only able to conclude that it was possible.
The operative question in this case was whether the evidence was so
overwhelming that it compelled a favorable finding. The ALJ properly considered
all the evidence, much of which cast doubt on Whisman’s theory that the machine
mist at Toyota caused her sinusitis. As correctly noted by the ALJ, Whisman’s
sinus issues predated her assignment to the machine area at Toyota and manifested
themselves at times when she was not working in that area. Both Dr. Cecil and Dr.
Archer explained that sinusitis can be caused by a number of different factors and
that Pseudomonas is a common bacteria found in many different places in our
everyday environments.
The Workers Compensation Act “requires only that exposure could
independently cause the disease – not that it did in fact cause the disease.” Miller
v. Tema Isenmann, Inc., 542 S.W.3d 265, 271 (Ky. 2018). This is where
Whisman’s claim fails. While Dr. Cecil opined that Pseudomonas could cause
sinusitis, he was unable to testify whether the levels detected in the machine mist at
Toyota were of a sufficient quantity to independently do so. Dr. Owen’s report
indicates that working at Toyota “exacerbates” and is “associated with”
Whisman’s sinusitis but he did not opine that Whisman’s work at Toyota could
have independently caused her issues. (R. at 207.) In short, there is an absence of
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proof in the record to support that the levels of Pseudomonas allegedly detected at
Toyota could have independently caused Whisman’s chronic sinusitis.4
IV. CONCLUSION
In light of the foregoing, we affirm the decision of the Workers’
Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE TOYTOA
MOTOR MANUFACTURING
Charles W. Gorham KENTUCKY, INC.:
Lexington, Kentucky
Kenneth J. Dietz
Florence, Kentucky
4
Like the Board, we note that while the Whisman repeatedly references OSHA testing having
been conducted at Toyota, there is no proof in the record that confirms that Pseudomonas was
actually ever detected at Toyota.
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