From Casetext: Smarter Legal Research

Trans Ash, Inc. v. Papineau

Commonwealth of Kentucky Court of Appeals
Jun 5, 2020
NO. 2019-CA-000613-WC (Ky. Ct. App. Jun. 5, 2020)

Opinion

NO. 2019-CA-000613-WC

06-05-2020

TRANS ASH, INC. APPELLANT v. CRAIG PAPINEAU; HONORABLE CHRISTINA D. HAJJAR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

BRIEF FOR APPELLANT: Kasey L. Bond Cincinnati, Ohio BRIEF FOR APPELLEE CRAIG PAPINEAU: McKinley Morgan London, Kentucky


NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-18-00200 AND WC-18-00201 OPINION
VACATING AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES. TAYLOR, JUDGE: Trans Ash, Inc., petitions this Court to review a March 22, 2019, Opinion of the Workers' Compensation Board (Board) that affirmed an opinion and award of permanent partial disability benefits to Craig Papineau. We vacate and remand.

Papineau worked for Trans Ash nine days in October and November 2015 and some nine months from February 15, 2016, through November 1, 2016. While employed by Trans Ash, Papineau operated heavy equipment.

On February 3, 2018, Papineau filed a claim for workers' compensation benefits alleging cumulative trauma injuries to his, inter alia, lumbar spine and both shoulders. He claimed that these injuries resulted from being a heavy equipment operator for many years and became manifest on November 1, 2016, while working for Trans Ash.

Craig Papineau asserted a claim for cumulative trauma to his bilateral knees, ankles, and feet, which was withdrawn at the formal hearing.

By Opinion rendered October 4, 2016, the Administrative Law Judge (ALJ) found that Papineau sustained cumulative trauma injuries to his lumbar spine and both shoulders that were work related. To support his findings, the ALJ relied upon the expert testimony of Dr. Stephen Autry. The ALJ also determined that Papineau's permanent partial disability benefits should be enhanced by the three multiplier in Kentucky Revised Statutes (KRS) 342.730(1)(c) due to Papineau's inability to return to the type of job he performed at the time of injury.

Trans Ash sought review with the Board. Trans Ash argued that the ALJ's award of permanent partial disability benefits was not supported by substantial evidence. Trans Ash maintained that Dr. Autry's medical opinion could not support the ALJ's finding as to causation because Dr. Autry's opinion was based upon erroneous facts. Trans Ash pointed out that Dr. Autry incorrectly believed that Papineau was employed by Trans Ash for three years, rather than merely nine months. Trans Ash additionally contended that Papineau was not entitled to the three-multiplier set forth in KRS 342.730(1)(c).

By Opinion entered March 22, 2019, the Board affirmed the ALJ's award of permanent partial disability benefits enhanced by the three multiplier. As to Dr. Autry's opinion, the Board recognized that he mistakenly believed that Papineau worked at Trans Ash for a period of three years but concluded that such erroneous work history was inconsequential.

Our review follows.

As an appellate court, we will only reverse the Board's Opinion if it has overlooked or misconstrued the law or flagrantly erred in its evaluation of the evidence causing gross injustice. W. Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). To do so, we must necessarily review the ALJ's opinion. It is within the province of the ALJ to judge the credibility of witnesses and the weight of evidence. As Papineau prevailed before the ALJ, Trans Ash must demonstrate that the award was not supported by substantial evidence or that an error of law occurred. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).

Trans Ash contends the Board committed error by concluding that substantial evidence supports the ALJ's finding that Papineau sustained work-related cumulative trauma injuries to his lumbar spine and shoulders. Trans Ash maintains that Dr. Autry's medical opinion as to causation was flawed based upon his inaccurate belief that Papineau worked at Trans Ash for three years. When an expert medical opinion as to causation is based upon incorrect facts, Trans Ash argues that the opinion does not constitute substantial evidence of a probative value.

A cumulative trauma injury is said to become manifest when "a worker discovers that a physically disabling injury has been sustained [and] knows it is caused by work[.]" Alcan Foil Products v. Huff, 2 S.W.3d 96, 101 (Ky. 1999). The claimant must demonstrate that a cumulative trauma injury was work related by expert medical testimony. Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004).

In this case, the ALJ found that Papineau suffered cumulative trauma injuries to his lumbar spine and shoulders that became manifest on November 1, 2016. To support that finding, it is clear that the ALJ relied upon the expert opinion of Dr. Autry. In his report, Dr. Autry opined that Papineau's work history in the mines caused Papineau to sustain cumulative trauma injuries that became manifest "by the plaintiff's latest employment." Dr. Autry did not specify a date that Papineau's cumulative trauma injuries manifested. The omission is significant because Dr. Autry erroneously believed that Papineau worked for Trans Ash for three years, beginning in 2014. However, Papineau only worked for Trans Ash for nine days in October - November 2015, and for approximately nine months beginning in February 2016. Dr. Autry further stated in his report that Papineau continued his employment at Trans Ash through April of 2017, which is totally in error.

Dr. Stephen Autry's report reflects he examined Papineau on March 8, 2018. Papineau testified at both his deposition and formal hearing that he had no recollection of being examined by Dr. Autry. See record at 141-42 and 272.

Papineau testified at the formal hearing that he worked for Trans Ash, Inc., through November of 2016 but did not state his last date of employment or when his cumulative injury occurred. Papineau's Application for Resolution of Claim (Form 101) was filed on February 3, 2018, and asserted his cumulative injury manifested on November 1, 2016. Trans Ash filed its Form 111, denying the claim on April 6, 2018, four days after the filing deadline. The Administrative Law Judge (ALJ) concluded that the late filing constituted an admission by Trans Ash that the date when Papineau's cumulative injuries manifested was November 1, 2016.

Our Supreme Court has held that "[w]hen a physician's opinion is based on a history that is 'substantially inaccurate or largely incomplete,' that opinion 'cannot constitute substantial evidence.'" Eddie's Service Center v. Thomas, 503 S.W.3d 881, 887 (Ky. 2016) (quoting Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004)). As set forth above, Dr. Autry's opinion was based upon a substantially inaccurate work history - that Papineau was employed by Trans Ash for three years. This alone raises serious doubt as to whether Dr. Autry properly evaluated Papineau's job duties at Trans Ash to establish an accurate work history or a cumulative injury. Given the inaccuracy of the work history set out in the expert opinion exclusively relied upon by the ALJ to establish the cumulative injury, we conclude that Dr. Autry's opinion cannot constitute substantial evidence to support the ALJ's findings. We, thus, vacate the Board's Opinion affirming the ALJ and remand for the ALJ to reconsider Papineau's claims of cumulative trauma injuries.

The majority acknowledges the authority relied upon by the minority in Hale v. CDR Operations, Inc., 474 S.W.3d 129 (Ky. 2015), as concerns the establishment of the manifestation of a cumulative injury and the liability for the last employer of the injured party. However, we cannot reach this issue where the expert's report and opinion, relied upon by the ALJ in making her decision, does not comport with the Supreme Court authority cited, necessary to constitute substantial evidence. Absent the opinion of Dr. Autry, there is limited evidence sufficient to support the claim. --------

We view any remaining contentions of error as moot or without merit.

For the foregoing reasons, we vacate and remand the Opinion of the Workers' Compensation Board.

ACREE, JUDGE, CONCURS.

CLAYTON, CHIEF JUDGE, DISSENTS WITH SEPARATE OPINION.

CLAYTON, CHIEF JUDGE, DISSENTING: Respectfully, I dissent. I believe that the Board properly affirmed the ALJ's decision because, under the Kentucky Supreme Court's decision in Hale v. CDR Operations, Inc., 474 S.W.3d 129 (Ky. 2015), apportionment of liability between previous employers in a cumulative injury situation is not permitted, and therefore the last employer is liable. In Hale, the Kentucky Supreme Court addressed a fact pattern similar to the one in this case. The appellant, Hale, alleged cumulative trauma to his neck and back. Id. at 130. Hale worked for CDR Operations, Inc. ("CDR") for only three months but had worked as a bulldozer operator for other companies for thirty years. Id. Further, Hale had no subsequent employment after he was laid off from his employment with CDR. Id. at 131.

CDR maintained that its liability should be based solely upon the percentage of Hale's impairment attributable to the three months he worked at CDR, and that Kentucky law required apportionment of liability between Hale's previous employers. Id. at 132. While, unlike in this case, the parties stipulated to the "date of manifestation" of Hale's cumulative injury as the last date that Hale worked at CDR, no proof was produced regarding a subsequent or intervening injury. Id. at 132-33. In finding that apportionment was not applicable in this situation, the Court stated that:

An employee who sustains a harmful change in his human organism due to cumulative trauma over many years working for the same employer is entitled to compensation to the full extent of his resultant disability. But, someone like Hale would not be fully compensated, simply because he worked for multiple employers. We can discern no basis for such a distinction. "Although both the employee and the employer have rights under
the [Workers' Compensation] Act, the primary purpose of the law is to aid injured . . . workers." Zurich Am. Ins. Co. v. Brierly, 936 S.W.2d 561, 563 (Ky. 1996). Nothing in KRS Chapter 342 limits the liability of the employer, in whose employ the date of manifestation occurred, to the percentage of the claimant's work-life spent there.
Id. at 138 (emphasis added). Therefore, apportionment "ha[d] no application under the current statutory scheme." Id. Further, in his concurring opinion, Chief Justice Minton noted that, while he believed the majority was in error in accepting the date of manifestation of Hale's injury as the date on which he was laid off from CDR, he believed the error to be harmless because it would not change the outcome of the case. Id. at 142-43.

In the case at bar, the ALJ determined that Dr. Autry's report was sufficient evidence that Papineau's injury was caused by a work injury, and no contrary medical evidence was produced. Therefore, even if Dr. Autry was incorrect as to the injury's manifestation date, such mistake was harmless error. The workers' compensation statutes, as currently drafted, dictate that the last employer is liable and that apportionment amongst the various employers is not allowable. Trans Ash, Inc., as the last employer, is liable. Therefore, I would affirm the decision of the Workers' Compensation Board. BRIEF FOR APPELLANT: Kasey L. Bond
Cincinnati, Ohio BRIEF FOR APPELLEE CRAIG
PAPINEAU: McKinley Morgan
London, Kentucky


Summaries of

Trans Ash, Inc. v. Papineau

Commonwealth of Kentucky Court of Appeals
Jun 5, 2020
NO. 2019-CA-000613-WC (Ky. Ct. App. Jun. 5, 2020)
Case details for

Trans Ash, Inc. v. Papineau

Case Details

Full title:TRANS ASH, INC. APPELLANT v. CRAIG PAPINEAU; HONORABLE CHRISTINA D…

Court:Commonwealth of Kentucky Court of Appeals

Date published: Jun 5, 2020

Citations

NO. 2019-CA-000613-WC (Ky. Ct. App. Jun. 5, 2020)