Opinion
2013-SC-000051-WC
04-17-2014
ABS GLOBAL, INC., D/B/A GENUS PLC D/B/A PIC NORTH AMERICA APPELLANT v. KIMBERLY NICOLE DRAPER; HONORABLE JOSEPH W. JUSTICE, FORMER ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
COUNSEL FOR APPELLANT, ABS GLOBAL, INC., D/B/A GENUS PLC D/B/A PIC NORTH AMERICA: Jo Alice Van Nagell Patrick Joseph Murphy, II COUNSEL FOR APPELLEE, KIMBERLY NICOLE DRAPER: Lucius P. Hawes, Jr.
IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION.
NOT TO BE PUBLISHED
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2012-CA-001146-WC
WORKERS' COMPENSATION NO. 10-00501
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, ABS Global, Inc. d/b/a Genus PLC d/b/a PIC North America, ("ABS") appeals from a Court of Appeals decision which affirmed a workers' compensation award in favor of Appellee, Kimberly Draper. ABS argues that the Administrative Law Judge ("ALJ") did not have the authority to change his mind about the compensability of Draper's injury on remand, that the ALJ's determination that Draper's cervical injury is work-related was not supported by substantial evidence, and that it cannot be held responsible for any injury that Draper suffered while undergoing medical treatment because ABS did not know it was occurring. For the below stated reasons, we affirm the Court of Appeals.
In 2005, Draper began her employment as a herdsman for ABS's pig farrowing operation. Her primary job duty was to place piglets on a cart so that they could be transported to different areas of the facility. She also was required to use a power washer to clean the area around the pigs, and feed the pigs which required pushing a cart weighing approximately 150 to 175 pounds. The record indicates that Draper was required to lift and push heavy items and had to lift her arms above her head when power washing.
Around September or October 2008, Draper began to experience neck pain and migraine headaches. At first, she did not attribute the pain to her employment. Draper saw a chiropractor, but the treatment did not alleviate the pain. Her family physician, Dr. John Adams, ordered an MRI scan and after reviewing the results referred Draper to Dr. Christopher Taleghani. After beginning treatment with Dr. Taleghani, Draper began to experience pain which radiated down her arm and into her fingers.
Dr. Taleghani placed Draper on a course of physical therapy to relieve her neck pain. On May 15, 2009, while undergoing therapy, Draper felt and heard a popping sound in her neck. Severe pain ensued and Draper went to a nearby emergency room for treatment. It was later determined that Draper ruptured a cervical disc. The injury was caused or worsened by the physical therapy session. Dr. Taleghani subsequently performed a cervical discectomy and fusion on Draper. Dr. Taleghani diagnosed Draper with right ulnar nerve entrapment which was related to her job. However, he did not offer an opinion as to whether Draper's cervical injury was related to her employment.
An injury to her right arm.
After additional physical therapy and a work-hardening program, Dr. Taleghani allowed Draper to return to light duty work at ABS on September 21, 2010. However, after only a few days back on the job, Draper experienced a migraine and the cervical spine soreness returned. Draper filed a claim for workers' compensation.
In an order dated December 20, 2010, the ALJ found that Draper did not present sufficient evidence to demonstrate a connection between her employment and her cervical injury. In so deciding, the ALJ found the testimony of ABS's evaluator, Dr. Timothy Kriss, to be more persuasive than the testimony of Dr. Taleghani. The ALJ dismissed Draper's claim. Draper filed a motion for reconsideration requesting that the ALJ find the cervical injury compensable and for factual findings and a decision in regard to her alleged right ulnar nerve injury. The ALJ rendered an order which affirmed his finding that Draper's cervical injury was not compensable but found that her right ulnar nerve injury was compensable. Draper was awarded temporary total disability benefits, permanent partial disability benefits, and medical benefits.
Draper appealed to the Workers' Compensation Board which vacated the ALJ's original opinion and order and remanded the matter for the ALJ to produce additional findings of fact to support dismissal of the cervical injury claim. The Board also stated that if certain factual findings were made, Draper would be entitled to compensation. On remand, the ALJ changed his mind about the compensability of the cervical injury. The ALJ found that the medical evidence and testimony provided by Drs. Kriss and Taleghani actually supported the conclusion that Draper's cervical injury was work-related. The ALJ entered an order granting Draper workers' compensation benefits for that injury. The Board and Court of Appeals affirmed the ALJ. This appeal followed.
The Board specifically stated that the ALJ's opinion and order of December 20, 2010 was vacated. Thus, the order entered finding Draper was entitled to workers' compensation for her right ulnar nerve injury is still in effect.
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ABS first argues that the ALJ erred by changing his mind on remand and finding that Draper's cervical injury was work-related. ABS contends that the Board's directive to the ALJ on remand was for him to enter additional findings supporting his conclusion that Draper's injury was not work-related, it was not to reconsider his ultimate decision. However, the Board's order vacated the ALJ's original opinion and order. Thus, the original opinion and order no longer existed and the ALJ was free to reconsider the evidence presented and draw a different conclusion. Indeed, the Board's opinion stated that if the ALJ "determines from the record, (1) Draper suffered from work-related muscular aches and pains to her neck, (2) she was referred by her physician for physical therapy to treat this work-related neck condition, (3) she sustained an injury during the May 15, 2009 physical therapy session resulting in a herniated disc to her cervical spine, and (4) as a result of this injury sustained at physical therapy, she underwent a cervical fusion, as a matter of law, the evidence compels a finding of compensability." It is clear that the Board wanted the ALJ to fully review the evidence and either make findings to support his original opinion or reach a different conclusion on remand. There is no error here.
ABS next argues that there was not substantial evidence to support the ALJ's conclusion that Draper's cervical injury was work-related. Substantial evidence is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the ultimate finding from being supported by substantial evidence. Id. It is the exclusive province of the ALJ to judge the credibility of the witnesses and the weight of the evidence. Dravo Lime Co., Inc. v. Eakins, 156 S.W.3d 283 (Ky. 2005). Applying these factors leads to the conclusion that the ALJ's findings were supported by substantial evidence.
On remand, the ALJ reconsidered the evidence presented. He found that he previously missed the fact that Dr. Kriss had diagnosed Draper with a neck strain and that Dr. Kriss's testimony actually supported, to some extent, Dr. Taleghani's finding that the injury was work-related. Indeed, Dr. Kriss opined that Draper's cervical disc was ruptured during physical therapy which she underwent due to her employment. Substantial evidence exists to support the finding that Draper's injury was work-related.
Finally, ABS argues that an employer cannot be held responsible if it did not have knowledge a work-related injury or treatment for an injury was occurring. Transport Associates v. Butler, 892 S.W.2d 296, 299 (Ky. 1995). ABS cites to multiple cases in which workers' compensation benefits were only provided for an injury which occurred due to medical treatment the employer knew about. See generally Elizabethtown Sportswear v. Stice, 720 S.W.2d 732 (Ky. App. 1986); McCorkle v. McCorkle, 265 S.W.2d 779 (Ky. 1954); Pond Creek Collieries Co. v. LaSantos, 212 S.W.2d 530 (Ky. 1948); Black Mountain Corp. v. Middleton, 49 S.W.2d 318 (Ky. 1932). Thus, ABS argues that since it was unaware Draper was undergoing physical therapy for work-related neck pain, it cannot be held responsible for the rupturing of her cervical disc which occurred during treatment. We disagree.
At the time Draper suffered the ruptured cervical disc it had not been determined that her initial neck injury was work-related. Thus, ABS could not have been informed of the injury and could not have participated in the selection of medical treatment. There is also no basis to conclude that the physical therapy Draper underwent was unreasonable, unnecessary, or inappropriate. ABS is responsible for the aggravation of a work-related injury caused by medical treatment. Butler, 892 S.W.2d at 299.
For the above stated reasons, we affirm the decision of the Court of Appeals.
All sitting. All concur. COUNSEL FOR APPELLANT,
ABS GLOBAL, INC.,
D/B/A GENUS PLC
D/B/A PIC NORTH AMERICA:
Jo Alice Van Nagell
Patrick Joseph Murphy, II
COUNSEL FOR APPELLEE,
KIMBERLY NICOLE DRAPER:
Lucius P. Hawes, Jr.