DENISE BELL v. GENERAL ELECTRIC; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 8, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-001058-WC
DENISE BELL
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-03-77452
v.
GENERAL ELECTRIC; HON. IRENE
STEEN, ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, JUDGE; HUDDLESTON AND PAISLEY, SENIOR JUDGES.1
BARBER, JUDGE:
Appellant, Denise A. Bell, petitions for review
of a decision of the Workers’ Compensation Board (WCB) that
affirmed a dismissal by the Administrative Law Judge (ALJ) of
her workers’ compensation claim against Appellee, General
Electric.
1
Bell’s appeal focuses on her occupational disease
Senior Judges Joseph R. Huddleston and Lewis G. Paisley sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
claim and repetitive trauma injury claim.2
Bell’s claims.
The WCB affirmed.
The ALJ dismissed
Following a review of the
record, we agree.
BACKGROUND
Bell first began working for GE in April 1990 as a
remote site computer operator.
She was laid off in March 1993
and moved to Las Vegas, Nevada, where she held various positions
before returning to Kentucky.
She again worked for GE beginning
in June 1996.
Bell worked in the laser room.
The laser would drill
holes into different types of aircraft engine parts.
She had to
pin check every hole with a wire to make sure that the hole was
open.
Bell began having pain and swelling in her right hand and
thumb around 1997 or 1998.
She further claimed that due to
overcompensation for her right hand and thumb, she developed
problems with her left upper extremity.
Bell testified it
developed gradually and she first notified a company nurse about
this condition in June 2002.
Bell additionally claimed she developed breathing
problems as a result of chemicals and solvents used in the
plant.
In the laser room, she also worked on the advanced vapor
2
Bell made claims for occupational asthma; right hand, wrist and left upper
extremity repetitive injury; vocal cord dysfunction; and psychological
injury. She did not appeal the dismissal of her claims related to vocal cord
dysfunction and psychological injury. Therefore, they will not be discussed
in this opinion.
-2-
degreaser (AVD).3
She became very sensitive to the fumes and
became ill on several occasions.
As a result, Bell was moved to
the electronic drilling machine (EDM) area on May 20, 2003.
still had episodes from odors at the EDM.
worked in the plant was June 2003.
She
The last day Bell
Bell filed for workers’
compensation benefits for her alleged injuries and occupational
disease in December 2003.
A hearing was held on Bell’s claims on August 4, 2005.
In her opinion, the ALJ dismissed all of Bell’s claims.
Bell
filed a petition for reconsideration, but it was overruled.
Upon appeal to the WCB, it affirmed.
Bell now appeals to our
court.
Bell makes the following arguments in her appeal: (1)
proper weight was not given to the report of the university
evaluator in her occupational disability claim and (2) error
occurred in the dismissal of her repetitive trauma injury claim.
STANDARD OF REVIEW
It is well-established that the function of this Court
in reviewing the WCB “is to correct the Board only where the []
Court perceives 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.”
3
The AVD was a machine that Bell loaded parts into to clean out wax after
they had been through the laser machine.
-3-
AK Steel Corp. v. Childers, 167 S.W.3d 672, 675 (Ky.App. 2005),
(citing Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 68788 (Ky. 1992)).
LEGAL AUTHORITIES AND ANALYSIS
The claimant bears the burden of proof and the risk of
non-persuasion before the fact-finder with regard to every
element of a workers’ compensation claim.
Fox, 19 S.W.3d 88, 96 (Ky. 2000).
Magic Coal Company v.
In order for that burden to
be sustained, no less than substantial evidence of each element
of the claim must be introduced.
Id.
Substantial evidence has
been defined as some evidence of substance and relevant
consequence, having the fitness to induce conviction in the mind
of reasonable people.
Id.
Although substantial evidence is
sufficient to support an essential finding of fact, it will not
necessarily require a favorable ruling, even in instances where
the contrary evidence is less than substantial.
Id.
Only
evidence which is compelling warrants a particular finding.
Compelling evidence is defined as evidence so
overwhelming that no reasonable person could fail to reach the
conclusion of the ALJ.
Webster County Coal Corp. v. Lee, 125
S.W.3d 310, 316 (Ky.App. 2003).
The ALJ has the sole authority
to determine the weight, credibility, and substance of the
evidence and to draw reasonable inferences from the evidence.
Transportation Cabinet v. Poe, 69 S.W.3d 60, 62 (Ky. 2001), see
-4-
also KRS 342.285.
what to believe.
The ALJ has the discretion to choose whom and
Id., (citing Pruitt v. Bugg Brothers, 547
S.W.2d 123, 125 (Ky. 1977)).
The ALJ, as fact-finder, 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.
Burton v.
Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky. 2002), (citing
Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky.
1977)).
Although a party may note evidence which would have
supported a conclusion contrary to the ALJ’s decision, such
evidence is not an adequate basis for reversal on appeal.
Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999).
Occupational Disability Claim
Bell argues appropriate weight was not given to the
report of the university evaluator, Dr. Steve S. Kraman, M.D.,
in her occupational disability claim.
[T]he clinical findings
and opinions of the designated evaluator shall be afforded
presumptive weight by ALJs and the burden to overcome such
findings and opinions shall fall on the opponent of that
evidence.
KRS 342.315(2).
When ALJs reject the clinical
findings and opinions of the designated evaluator, they shall
specifically state the reasons for rejecting that evidence in
the order.
Id.
-5-
Kentucky Revised Statute 342.315(2) creates a
rebuttable presumption that is governed by KRE 301 and,
therefore, does not shift the burden of persuasion.
Bright v.
American Greetings Corp., 62 S.W.3d 381, 383 (Ky. 2001).
The
provision does not restrict the ALJ’s authority to weigh
conflicting medical evidence and to choose which evidence to
believe.
Id.
An ALJ can choose to disregard the clinical
findings and opinions of the university evaluator but must state
a reasonable basis for doing so.
Id.
The ALJ stated the following in her opinion, in
relevant part:
With regards to her pulmonary problems
and in spite of the presumptive weight given
to a university evaluator, it is
nevertheless my finding that Dr. Powell’s
evidence is more persuasive. Dr. Kraman
evaluated [Bell] on April 8, 2004 and had
reviewed no prior medical records and was
relying only on the information [Bell] gave
him at that time. [Bell] failed to inform
Dr. Kraman of her previous diagnosis of
reactive airway disease, which was made
already when [Bell] was in the Army, and
also did not mention that she had had
previous pulmonary aggravations and was
restricted from areas involving Codex in
1992 through 1993. [Bell], additionally,
denied a prior history of pneumonia. Her
pulmonary study indicated only a moderate
expiratory obstruction, based upon which Dr.
Kraman had assigned the class 2 impairment.
However, when [Bell] was evaluated by Dr.
Powell on October 29, 2004, [Bell] had no
evidence of a respiratory problem, having
produced a FVC of 120% and a FEV1 of 90% of
predicted and thus an impairment rating was
-6-
not warranted. All that having been said,
it nevertheless appears that [Bell] does
have a reactive airway disease, such as she
had been diagnosed while in the Army and as
a consequence, [Bell] has exhibited symptoms
when she comes in contact with certain
chemicals or fumes and does have that
problem. However, I am not persuaded that
her underlying asthmatic condition is at all
work related and such was the opinion of the
more persuasive evidence from Drs. Powell
and Rosenberg, upon whom this ALJ will rely.
We believe the ALJ did state a reasonable basis for
disregarding the university evaluator.
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.
Cepero v.
Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004).
Medical opinion predicated upon such erroneous or deficient
information that is completely unsupported by any other credible
evidence can never be reasonably probable.
Id.
Dr. Kraman testified at his July 21, 2004 deposition
that the patient history was from Bell and that she gave no
history prior to 1999.
He also testified he reviewed none of
Bell’s medical records.
Dr. Robert W. Powell, M.D., examined
Bell on October 20, 2004 and reviewed her medical records.4
4
Dr.
Dr. Powell wrote he was provided “voluminous medical records” from David
Rosenberg, M.D.; S. Kraman, M.D.; Army medical records; Trover Clinic
records; Multicare Specialists records; Doug Simmons, M.D.; G.E. Medical
records; and Regional Medical Center records.
-7-
David M. Rosenberg, M.D., M.P.H., reviewed Bell’s records, but
did not perform an examination.5
Each concluded Bell’s condition
was not work related.
Bell contends that at his deposition, Dr. Kraman was
informed of her history and maintained his findings.
Dr. Kraman
made the following statements during his deposition:
1)
Q:
A:
Q:
A:
Q:
A:
Q:
A:
Q:
All right. And when you -- in
causation, you stated that within
medical probability pulmonary
impairment is caused, in part, by
exposure to the chemicals, occupational
exposure?
Right.
What basis -- what did you base that
on, what chemicals?
Based on the consistency of the story,
her dating this back to a large
chemical exposure, unknown chemicals
but many of them. And the whole
history that she gives is consistent
with someone who develops reactive
airways disease after a chemical
exposure.
But basically -Basically, I have no reason -- I had no
reason to attribute it to anything
else.
Based on her history?
Right. Based on her history, right, and
the fact that she does have evidence of
having asthma in the pulmonary function
test.
You stated in part. Does that mean
part of her condition may not be caused
by the workplace?
5
Dr. Rosenberg wrote that he reviewed Multicare Specialists records; Regional
Medical Center records; Trover Clinic records; GE records; medical
chronology; Bell’s workers’ compensation application; and Dr. Kraman’s
evaluation.
-8-
A:
I don’t know. She could have had mild
-- she could have had a predisposition
to this. She could have had mild
asthma and didn’t know it. I really
have no way of telling. I think at
least in part. (pp. 20-21)
2) (Discussing Bell’s AMA impairment rating)
Q:
Based on her spirometry?
A:
Yeah, no question. That’s a pretty
hard -- I mean regardless of what the
causation is, the spirometry puts her
in that category.
Q:
But if she had some kind of other
evidence of asthma before working at GE
before she -A:
She’d still be the same category, but
it’s another -- but that would change
the causation. (p.26)
Bell submitted no evidence other than Dr. Kraman’s
report to support her occupational disease claim.
The ALJ chose
to rely upon the reports of Drs. Powell and Rosenberg.
In
instances where the medical evidence is conflicting, the sole
authority to determine which witness to believe resides with the
ALJ.
Staples, Inc. v. Konvelski, 56 S.W.3d 412, 416 (Ky. 2001).
Further, we do not believe Dr. Kraman’s deposition resulted in
his opinion rising to the level of compelling evidence.
Based
on the foregoing, we believe the ALJ provided a reasonable basis
for disregarding the university evaluator and relying upon other
medical reports in support of her decision.
affirm the WCB.
-9-
Therefore, we
Repetitive Trauma Injury Claim
Bell claims the ALJ erred in summarily dismissing her
injury claim based upon the statute of limitations.
The ALJ
stated in her opinion “[Bell’s] hand/wrist problems have been
discussed above and shall be dismissed based upon a violation of
the Statute of Limitations.”
However, when the opinion is read
in its entirety, the basis for the ALJ’s dismissal of Bell’s
injury claim was due to her lacking an AMA impairment rating in
support of her claim.
The burden was on Bell to prove every element of her
claim.
Robertson v. United Parcel Service, 64 S.W.3d 284, 286
(Ky. 2001).
Claimants are required to prove that a harmful
change resulted in a permanent disability as measured by an AMA
impairment.
Id.
The ALJ struck the medical report of Dr. Timothy Scott
Prince6 from the record.
Bell first presented Dr. Prince’s
report at the Benefit Review Conference (BRC) in July 2005.
ALJ struck the report because it was not timely.
The
This was the
only evidence submitted in support of her repetitive trauma
injury claim.
As a result, Bell had no AMA impairment rating
for her repetitive trauma injury claim.
An ALJ has broad discretion to control the taking and
presentation of proof in a workers’ compensation proceeding.
6
Dr. Prince completed a Form 107-I.
-10-
New Directions Housing Authority v. Walker, 149 S.W.3d 354, 358
(Ky. 2004).
Any tribunal which is vested by law with the power
to hear evidence and make decisions thereon, has the power to
compel the taking of evidence before it within reasonable limits
of time and this power should not be subject to the control of
courts unless such tribunal acts in an arbitrary or unreasonable
manner such as to indicate an abuse of discretion.
Elkhorn Coal
Co. v. Bates, 236 S.W.2d 946, 949 (Ky. 1951).
Extensions of proof time were given throughout the
proceedings by the ALJ.
made by Bell.
Some of the extension requests were
However, she made no requests to extend the proof
time related to the BRC in July 2005.
It is possible to take
additional proof between the BRC and the hearing, but the
request must be made upon motion with good cause shown.
25:010, Section 13 (15).
803 KAR
Bell did not file such a motion.
The ALJ repeatedly stressed the need for Bell to get
an impairment rating related to her injury claim.
Bell’s claim was more than two years old.
signed his report on April 27, 2005.
final hour to submit her proof.
At the BRC,
Also, Dr. Prince
Bell waited until the
GE was given no opportunity to
rebut Dr. Prince’s report before the BRC.
Based on totality of
the circumstances, we do not believe the ALJ abused her
discretion in striking Dr. Prince’s report.
affirm the WCB.
-11-
Therefore, we
Conclusion
The ALJ stated sufficient reason for disregarding the
university evaluator related to Bell’s occupational disease
claim.
Also, the ALJ did not abuse her discretion when she
struck the report of Dr. Prince related to Bell’s repeated
trauma injury claim.
Both claims were properly dismissed.
Based on the foregoing, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
M. Michele Cecil
Owensboro, Kentucky
Michael W. Alvey
Owensboro, Kentucky
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