BROWN-FORMAN CORPORATION V MARION LOUISE UPCHURCH ; HON . DONNA H . TERRY, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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RENDERED : February 19, 2004
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2003-SC-0072-WC
BROWN-FORMAN CORPORATION
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APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-0749-WC
WORKERS' COMPENSATION BOARD NO. 99-82662
MARION LOUISE UPCHURCH ; HON. DONNA
H. TERRY, ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
The claimant's award of a permanent total disability for work-related wrist injuries
has been affirmed by the Workers' Compensation Board (Board) and the Court of
Appeals. Appealing, the employer maintains that the claim was not filed within the
applicable period of limitations and that the Administrative Law Judge (ALJ) erred by
admitting certain expert medical testimony concerning the cause of her condition .
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S . 579, 113 S .Ct. 2786, 125
L.Ed .2d 469 (1993), and Goodyear Tire and Rubber Co . v. Thompson , Ky., 11 S .W .3d
575 (2000). We affirm .
The claimant was a 49-year-old high school graduate with no specialized or
vocational training . She worked for the defendant-employer for 32 years, performing a
number of production and janitorial duties . In the years preceding her retirement, she
worked as a case handler. Although her job duties rotated every two hours, all of them
involved the repetitive use of her hands and arms.
In May, 1997, the claimant sought treatment in the employer's medical
department after falling and catching her weight on her right wrist. Dr. Bonnarens
diagnosed a strain and excised a ganglion cyst in September, 1997. In October, 1998,
the claimant experienced pain in her right arm and neck and again sought medical
treatment . Dr. Urda, a company doctor, advised her that her symptoms were not workrelated . Shortly thereafter, the claimant saw her family physician and was referred to
Dr. Hockenbury, an orthopedic surgeon with whom she scheduled an appointment for
March, 1999 .
On February 5, 1999, the claimant developed right arm, wrist, hand, and neck
pain while pulling beverage cases off a production line . She notified the company nurse
and filed an injury report. She testified that she began to miss work periodically due to
wrist pain, using time under the Family and Medical Leave Act. Although she did not
seek immediate medical treatment, she saw Dr. Hockenbury in March, 1999, as
scheduled. After receiving a history of neck and right trapezial pain that had persisted
for a year, wrist pain that increased over a period of several weeks, and no history of left
wrist trauma, Dr. Hockenbury diagnosed cervical degenerative disc disease and a left
wrist scapholunate ligament tear with DISI instability pattern . He referred the claimant
to a hand surgeon.
On March 30, 1999, the claimant fell off a ladder, catching herself with her left
hand and wrist. Again, she reported the incident to the nurse and filed an injury report.
On May 5, 1999, working with her left hand and wrist in a cast, the claimant developed
right hand and wrist pain while attempting to secure promotional CD's to bottles. She
sought treatment from the company doctor and was diagnosed with a right wrist sprain .
The claimant testified that she last worked on November 5, 1999, and retired on
December 31, 1999 . On December 13, 2000, she filed a workers' compensation claim,
wherein she alleged a gradual injury due to 32 years of repetitive trauma from using
both of her arms in her work and also listed the three incidents from 1998-99. After
retiring, the claimant underwent surgery to her left wrist. Her physician also
recommended surgery to her right wrist. She testified that she continued to experience
severe wrist pain that interfered with her activities of daily life and that she took no pain
or anti-inflammatory medication .
The claimant began treatment with Kleinert, Kutz & Associates, on April 9, 1999,
complaining of a four-month history of left wrist pain. She was diagnosed with chronic
scapholunate dissociation of the left wrist. Dr. Gupta, a hand surgeon who was
associated with the practice, took over the case on May 21, 1999, and began treating
the claimant for bilateral wrist pain that was worse on the left side. He noted that the
claimant had fallen from a ladder at work on March 30 . In a July, 1999, letter to the
employer's carrier, he diagnosed bilateral scapholunate separation and radioscaphoid
arthritis of the left wrist, indicating that the conditions may have been aroused by the
March 30, 1999, fall at work. A September 9, 1999, letter to the claimant's counsel
indicated that her years of repetitive production work had caused the tendons in her
wrists to "wear out," causing the scapholunate separation, and that the resulting change
in the biometrics of her handled to her current problems. On January 11, 2000, after
conservative treatment of the left hand proved to be ineffective, Dr. Gupta excised the
scaphoid bone and fused the capitolunate, using two Herbert's screws and a scaphoid
bone graft. He indicated that the claimant retained a 30-40% loss of motion in the left
wrist and a 30-40% loss of grip strength after the surgery .
When deposed on what was a vigorous cross-examination, Dr. Gupta explained
that ligaments stabilize the carpal bones and control movement between the rows of
bones in the hand . A laxity of those ligaments disrupts the normal alignment of the
bones, altering the biomechanics of the wrist. As a result, most of the load falls onto the
scaphoid bone, resulting in degenerative changes such as loss of cartilage and arthritis.
Even nominal activity is painful to an individual with radioscaphoid arthritis . Dr. Gupta
further explained that some individuals are genetically predisposed to ligamentous
laxity, while others develop the condition due to a traumatic injury. In the absence of
any specific severe injury to the wrist, his opinion was that the claimant's scapholunate
ligament "wore out" due to the repetitive or cyclical loading of her wrists while
performing her work for 32 years. He admitted, however, that of the approximately
1,500 cases he had treated, only 5 were caused by the repetitive demands of work,
making work more a possible than probable cause of the condition . Attached to his
deposition were articles and medical references to support his view that the claimant's
work caused her condition . Counsel for the employer objected to Dr. Gupta's opinion of
causation, maintaining that it was not based upon a reasonable medical probability and
that none of the articles indicated that individuals who performed 30 years of repetitive
motion with high cyclical loading were more likely to develop radioscaphoid arthritis .
Dr. Sheridan, an orthopedic surgeon, examined the claimant on January 16,
2001 . He diagnosed bilateral scapholunate instability with radiocarpal arthritis, noting
the prior surgery, and also diagnosed cervical and lumbar strains . He assigned a 22%
combined impairment and agreed with Dr. Gupta that the claimant's conditions were
due to the nature of her work. When deposed, he stated that scapholunate instability is
usually associated with trauma or ligamentous laxity but that some individuals appear to
be genetically predisposed to the condition . Although he admitted that he was unaware
of any study or medical literature that linked production workers to the condition or to an
increased risk of developing the condition, the claimant later moved to admit into
evidence an affidavit by Dr. Sheridan that claimed to include such literature . Ruling on
the employer's objection to admitting the literature, the ALJ noted that articles of which
Dr. Sheridan had been unaware could not have formed the basis for the opinions to
which he testified and struck them from the record .
Dr. Gabriel, a hand surgeon, performed two independent medical examinations.
After the first examination, on June 23, 1999, he diagnosed a small ligamentous tear
between the scaphoid and lunate bones and arthritic changes . In his opinion the
conditions were not work-related . He explained that ligamentous instability of the wrist
is not caused by repetitive use unless there is some pre-existing ligamentous laxity and
that he was aware of no medical literature to the contrary . After performing a second
examination on March 2, 2001, Dr . Gabriel diagnosed chronic scapholunate advanced
collapse of both wrists and noted the previous surgery . He did not agree that repetitive
or cyclical loading would cause tearing of the ligament between the scaphoid and lunate
bones .
The employer filed motions in limine, objecting to the admissibility of expert
opinions by Drs. Gabriel and Gupta regarding causation on the ground that they were
unreliable . KRE 702 ; Daubert v. Merrill Dow Pharmaceuticals, Inc. , supra ; Goodyear
Tire and Rubber Co . v. Thompson , supra . It maintained that the opinions were based
upon the physicians' personal observations and that no valid medical studies
demonstrated the causal relationship to which they testified . Furthermore, their view
had not been tested and was not generally accepted in the medical community . The
AU noted, however, that the claim would not be decided by a jury and determined that
the test set forth in Daubert did not apply to a workers' compensation proceeding .
Instead, the employer's concerns over the opinions of causation went to the weight and
credibility of the evidence, not its admissibility . In a petition for reconsideration that was
overruled, the employer pointed out that under 803 KAR 25:010E, § 12, the Kentucky
Rules of Evidence apply to workers' compensation proceedings and that under KRE
702, only expert medical testimony that meets the threshold for reliability may be
admitted into evidence .
When considering the merits of the claim, the ALJ noted that records from Dr.
Edwards, the claimant's family doctor, confirmed her testimony that in October, 1998,
she was advised that her wrist problems were not work-related . The claimant testified
that it was Dr. Gupta who first told her that her problems were due to her work. Noting
that his September 9, 1999, letter to the claimant's counsel referred to the May 21,
1999, examination, the ALJ determined that the claimant learned the cause of her
condition at that time . Also noting the claimant's testimony that she promptly reported
any symptoms and that she reported any diagnoses to her employer and its medical
department as soon as they were conveyed to her, the AU determined that she gave
timely notice. Furthermore, she filed a timely claim within two years of learning that
work was the cause of her symptoms. Based upon Dr. Gupta's testimony, the
restrictions that Dr. Sheridan imposed, and the vocational evidence, the ALJ determined
that the claimant was unlikely to consistently find employment and awarded a
permanent total disability .
The employer maintains that the disabling reality of the claimant's injuries
became manifest well before May 21, 1999 . It points out that she had been under
treatment since 1997. In October, 1998, she attributed her condition to her work as
evidenced by the fact that she reported her symptoms to her supervisor . Although Dr.
Urda informed the claimant that her symptoms were not work-related, the employer
maintains that Toyota Motor Mfg ., Kentucky, Inc. v. Czarnecki , Ky.App., 41 S .W .3d 868
(2001), is distinguishable because the claimant thought that her symptoms were workrelated and because her symptoms did not show periods of exacerbation followed by
periods of improvement . It also maintains that because the claimant was aware of her
disabling hand injury and thought that it was caused by work, Hill v. Sextet Mining
Corp. , Ky., 65 S.W.3d 503(2001), is distinguishable, and her claim was barred under the
rationale of Alcan Foil Products v. Huff, Ky., 2 S .W.3d 96 (1999). We find no merit in
this argument.
Contrary to the employer's assertion, Coslow v. General Electric Co . , Ky., 877
S .W .2d 611 (1994), concerned claims in which an ALJ determined that the harmful
change was traceable to a single incident. It has no bearing on a cumulative trauma or
gradual injury claim . The AU determined that the claimant sustained several injuries in
1998-99 but concluded from Dr. Gupta's testimony that her present difficulties were
traceable to a "wearing out" of the ligament between the scaphoid and lunate bones
from 32 years of repetitive and cyclical loading in her work.
It was undisputed in Alcan Foil Products v. Huff, supra, that the workers knew
their hearing loss was due to the cumulative effect of work-related noise exposure more
than two years before they filed their claims . Although the claimant experienced
symptoms at work, the company physician informed her from the outset that her
symptoms were not work-related . She was entitled to rely on that information . See
Toyota Motor Mfg., Kentucky, Inc. v. Czarnecki, supra . Furthermore, regardless of what
the claimant might have thought, she was not a physician or an expert on medical
causation and could not be expected to self-diagnose the cause of her problem. See
Hill v. Sextet Mining Corp. , supra . It was not until May 21, 1999, that Dr. Gupta
informed the claimant that her problems were work-related, and she filed her claim
within two years of that date . Therefore, the ALJ correctly determined that the gradual
injury claim was timely.
As specified in 803 KAR 25 :010E, § 12, the Kentucky Rules of Evidence govern
workers' compensation proceedings . KRE 702 provides :
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise .
The employer asserts that all of the medical experts who testified acknowledged that the
condition found in the claimant's wrists nearly always results from a significant trauma .
It argues that Dr. Gupta's opinion was unreliable and should not have been admitted to
show causation because it was based solely upon his treatment of approximately 5 out
of 1,500 or more patients . It was not supported by peer-reviewed medical articles
establishing a causal relationship between scapholunate separation and repetitive
motion, by medical testing, or by medical research to show that individuals who
performed the same type of work as the claimant had an increased likelihood of
developing the condition.
FRE 702 was adopted in 1975. Its language is identical to KRE 702. In Daubert,
supra, the U .S. Supreme Court determined that FRE 702 replaced the rule of Frye v.
United States, 293 F. 1013 (D .C .App. 1923), which was that an expert opinion that is
based on a scientific technique is admissible only if the technique is generally accepted
within the relevant scientific community as being reliable . While acknowledging that the
trial court must function as a gate keeper to assure that only reliable expert scientific
testimony is admitted, Daubert construed the rule as adopting a more flexible approach
than the "general acceptance" standard . The goal of the rule was twofold : first, to
protect the jury from being unduly influenced by "junk science," the introduction of which
might give it an aura of scientific respectability in the eyes of the jury and, second, to
avoid imposing a repressive scientific orthodoxy that would inhibit the search for truth .
Among the factors for the trial court to consider when determining the reliability of
proffered evidence under Daubert were: 1 .) whether the theory or technique has been
tested ; 2.) whether it has been subjected to peer review and publication ; 3.) the rate of
error for the technique; and 4.) whether the technique has found acceptance within the
relevant scientific community . As the Court emphasized later in Kumho Tire Company
v. Carmichael , 526 U.S . 137, 140-41, 119 S .Ct . 1167, 1171,143 L.Ed .2d 238, 246-47
(1999), the test of reliability is flexible and grants the trial court the same broad latitude
when deciding how to determine reliability as it receives with respect to its ultimate
determination .
The Kentucky courts have adopted the Daubert and Kumho analyses when
interpreting and applying KRE 702. Goodyear Tire and Rubber Co . v. Thompson ,
supra ; Mitchell v. Commonwealth , Ky., 908 S .W .2d 100 (1995), overruled on other
grounds. Under KRE 702, the trial judge acts as the gate keeper, screening the
evidence that the jury will hear, but the approach for doing so is more flexible than under
the previous "general acceptance" rule . A ruling on the admissibility of expert testimony
is subject to the same abuse of discretion standard that applies to a ruling on any other
evidentiary matter. Goodyear, supra at 578 .
Although the Kentucky Rules of Evidence govern workers' compensation
proceedings, the AU correctly determined that the test set forth in Daubert , supra, did
not apply to the admissibility of Dr. Gupta's testimony concerning the cause of the
claimant's wrist problems . In a workers' compensation proceeding, unlike a jury trial, the
ALJ is both gate keeper and trier of fact. Therefore, concerns about the effects of
cloaking evidence in an unwarranted aura of respectability are absent . In any event, a
finding that favors the party with the burden of proof must be based upon substantial
evidence and, therefore, be reasonable in order to survive on appeal. Special Fund v.
Francis , Ky., 708 S .W.2d 641, 643 (1986).
Medical causation must be proved to a reasonable medical probability with expert
medical testimony but KRS 342.0011(1) does not require it to be proved with objective
medical findings . Staples, Inc . v. Konvelski , Ky., 56 S .W.3d 412, 415 (2001); Dupree v.
Kentucky Department of Mines and Minerals , Ky., 835 S .W.2d 887 (1992) . It is the
quality and substance of a physician's testimony, not the use of particular "magic
words," that determines whether it rises to the level of reasonable medical probability,
i .e ., to the level necessary to prove a particular medical fact. Turner v. Commonwealth ,
Ky., 5 S .W .3d 119, 122-23 (1999). Where there is conflicting medical testimony
concerning the cause of a harmful change, it is for the AU to weigh the evidence and
decide which opinion is the most credible and reliable . While the existence of peerreviewed articles and research studies that support a particular view of causation are
factors that an AU may consider, they are not required and will not necessarily compel
a particular result. Likewise, the fact that a particular cause has only rarely been
10
associated with a harmful change will not necessarily preclude a finding that it is the
cause in a particular case .
The basis for the employer's objection is the assertion that Dr. Gupta's opinion of
causation is unreliable. Dr. Gupta was a hand surgeon and the claimant's treating
physician . His medical expertise was not challenged . He testified to the history he
received, to the course of treatment, to the results of testing and observation, and to his
opinion that the physical demands of claimant's work caused the harmful changes in her
wrists. When deposed, he presented research articles and studies concerning musculoskeletal injuries, including hand injuries and their causes . A vigorous cross-examination
brought out certain weaknesses in the basis for his conclusions . Further- more, Dr.
Gabriel, who was also a hand surgeon, disagreed with Dr. Gupta's theory of causation
and stated that no medical studies supported a causal relationship between the
claimant's wrist problems and her work. Nonetheless, the countervailing evidence was
not so overwhelming as to render the decision to rely upon Dr. Gupta unreasonable.
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
C. Patrick Fulton
Fulton & Devlin
2000 Warrington Way
165 Browenton Place
Louisville, KY 40222
COUNSEL FOR APPELLEE :
Tamara Todd Cotton
Christopher P. Evensen
Tamara Todd Cotton & Associates
1102 Republic Building
429 W . Muhammed Ali
Louisville, KY 40202
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