HENRY A. DONATHAN v. QUALITY CABINETS; HON. J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 2, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001376-WC
HENRY A. DONATHAN
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-72851
v.
QUALITY CABINETS;
HON. J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND HENRY, JUDGES; POTTER, SENIOR JUDGE. 1
HENRY, JUDGE:
Henry A. Donathan (Donathan) has petitioned for
review of an opinion of the Workers' Compensation Board (Board)
entered on May 27, 2005, that affirmed an opinion and order of
the administrative law judge (ALJ) rendered January 19, 2005,
dismissing Donathan's claim against Quality Cabinets (Quality)
upon factual findings that Donathan 1) failed to sustain his
1
Senior Judge John W. Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
burden of proof of a work-related injury and, alternatively, 2)
failed to give due and timely notice of his claimed injury.
Before us, Donathan argues that the Board erred in affirming the
ALJ's opinion and order, asserting that the ALJ's findings were
not supported by substantial evidence.
We disagree, and affirm.
Donathan completed high school and worked in various
jobs including as a farmer, janitor, and maintenance technician
until beginning employment in September, 1998, at the age of
thirty-nine, with Quality, a kitchen cabinet manufacturer.
Donathan worked as a clamp operator, which required him to place
five to fifteen pound glued cabinet frames into a clamp, align
them with a rubber mallet, and staple them using an air powered
staple gun.
While evidence from both sides agreed that the
movement to accomplish this task was repetitive, there was a
conflict as to the force required:
Donathan testified that
using the mallet required extensive hammering with his right
hand, while his supervisor testified that the hammering involved
only "tapping."
In June, 2000, Donathan was moved from the position of
clamp operator to that of framer.
While both parties agreed
that the change was made to alleviate Donathan's shoulder pain,
there was a conflict as to whether the pain was work-related.
Donathan testified that the change was due to his report of a
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stinging pain in his right shoulder that occurred while
hammering; his supervisor and the human resource manager
testified that Donathan did not report the pain as work-related;
further, that an employee could change functions within the same
job in order to put less stress on, for example, a shoulder; and
it also served the dual purpose of training new clamp operators,
including Donathan's son, with whom he had voiced a desire to
work.
Donathan continued to work for a year without further
complaints or missing work due to shoulder pain.
In the course
of that year, during September and October, 2000, and March,
2001, Donathan saw his family physician for several complaints,
including pain in both shoulders.
Absent from the doctor's
notes is any history or indication that the right shoulder pain
was work-related.
Donathan was referred to an orthopedic
surgeon in April, 2001, for the right shoulder pain, had an MRI
and was enrolled in physical therapy.
The notes from this
surgeon indicate that Donathan denied any injury as the cause of
the pain, instead specifically reporting right shoulder pain for
a year with no specific injury.
The first of seven surgeries on his right shoulder was
performed on June 27, 2001.
In preparation for this surgery,
Donathan completed a Family Medical Leave Act benefits form, in
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which he stated that his condition had commenced in April, 2000,
(two months before he changed positions from clamp operator to
framer).
At the same time he also completed a form to claim
short-term disability benefits, specifically checking that the
benefits were not due to a work-related injury and leaving blank
questions as to whether the claim was related to his occupation.
Out of all the medical notes from his physicians, the sole
reference to the pain being work-related appeared in an
operative report following this surgery.
According to Quality, the first notice that the right
shoulder pain was work-related occurred on September 28, 2001,
when Donathan completed a first report of injury for workers'
compensation benefits, listing the date of disability as June
25, 2001, and the date of the injury as unknown, summer of 2000.
In support, he relied on the one comment in the June 27, 2001,
operative report from the first surgery, which was the sole
reference in the medical documentation to the pain being workrelated.
Quality denied the claim on the basis that Donathan's
condition was not work-related and, alternatively, because he
had failed to give due and timely notice.
From November 7, 2001, until May 20, 2004, Donathan
had six more surgeries on his right shoulder.
The only other
mention to the pain being work-related appears in medical
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records from the Cincinnati Sportsmedicine and Orthopaedic
Center, after Quality's denial of workers compensation benefits,
noting that Donathan reported that the onset of right shoulder
pain occurred while he was working at Quality.
In the meantime, two independent medical examinations
from two different doctors resulted in findings that the
shoulder pain was not work-related.
In dismissing Donathan's claim, the ALJ found
Donathan's testimony not credible on the basis that he failed to
report a work injury to Quality until September, 2001; that he
saw two doctors for multiple visits between September 14, 2000,
and September of 2001, and never mentioned a work-related injury
or any relationship between his work activity and the right
shoulder condition; and that he affirmed in his application for
short-term benefits that the condition was not work-related.
The ALJ therefore concluded a failure of proof of a work-related
injury and, although mooted by the first conclusion, also found
a failure of due and timely notice of the claimed injury.
Before the Board, Donathan contended that the ALJ
erred in concluding that he did not suffer a work-related injury
and that he did not give timely notice, asserting that the ALJ
failed to note compelling evidence otherwise.
ALJ's opinion and order, the Board stated:
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In affirming the
After reviewing the ALJ's decision and
the record in this matter, we believe the
ALJ thoroughly reviewed the relevant
evidence and reached conclusions that are
supported by substantial evidence. It is
not enough for Donathan to point to evidence
that could have supported a more favorable
result. REO Mechanical v. Barnes(, 691 S.W.
2d 224 (Ky.App. 1985)). A good deal of
Donathan's argument on appeal is simply a
re-argument of the merits of the claim and
is focused on the ALJ's interpretation of
the evidence or the weight the ALJ assigned
to the evidence. Such matters are solely
within the authority of the ALJ. We are
without authority to reweigh the evidence
and reach a conclusion contrary to that
reached by the ALJ.
The record does not compel a finding in
favor of Donathan on the issues of workrelated injury and causation. The ALJ
simply did not find Donathan credible
regarding the occurrence of an injury and
its connection with Donathan's work. The
ALJ found it significant that there was no
mention of work relatedness in any of the
doctors' reports for approximately one year
following the injury. Dr. Chattha only
expressed that the condition was work
related in his operative note and did not
explain the basis for that opinion at that
time. The ALJ noted this singular entry
stood in stark contrast to the wealth of
medical records documenting office visits
which recorded no mention of workrelatedness.
The September 14, 2000 note from Dr.
McGinnis indicated Donathan was seen for
complaints of shoulder pain, especially in
the right shoulder. Medical records
establish that the left shoulder problems
were similar to those in the right but not
as severe. Donathan acknowledges that the
left shoulder is not work related. Our
attention is directed to nothing in the
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record to clarify how the left shoulder
condition arose. It would not have been
unreasonable for the ALJ to question why the
similar condition in the right shoulder
would have a cause different from the
problems in the left shoulder, especially
since they were both symptomatic at the same
time.
The ALJ was clearly not persuaded that
any doctor offering an opinion that the
condition was work related had a sufficient
basis to form that opinion. As noted by the
ALJ, Dr. Chattha completed an attending
physician's statement for Donathan's
application for short-term disability
benefits and did not indicate the condition
was due to an injury or sickness arising out
of Donathan's employment. It was only after
the short-term disability benefits were
expiring that Dr. Chattha noted in the
operative report that the condition was work
related. In rejecting Dr. Chattha's opinion
on work relatedness, the ALJ stated that the
medical evidence is only as credible as
Donathan's testimony and the history
Donathan gave to the medical experts. The
ALJ may reject medical opinion if it (is)
based only upon the history the doctor
receives. If the opinion is based on an
inaccurate history or information, the ALJ
may choose to reject it. The ALJ clearly
stated he did not find Donathan credible
regarding the onset of his problem.
We note, also, that Dr. Gladstein, in
his deposition, clearly stated that the pain
Donathan experienced was not the result of
any injury that he sustained to his
shoulder. Dr. Gladstein further stated that
he saw no objective medical evidence of a
harmful change to Donathan's shoulder as a
result of his work activities. Dr.
Gladstein's opinions are substantial
evidence that would support a finding that
the condition was not work related. The
presence of this evidence alone would
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indicate the evidence does not compel a
finding of work relatedness.
Since the ALJ could reasonably conclude
that causation or work relatedness of the
injury were shown to his satisfaction,
questions concerning notice are moot.
Nevertheless, we note the ALJ could
reasonably conclude that due and timely
notice was not given. The ALJ carefully
considered the testimony of the witnesses
concerning the event and did not find
Donathan to be credible. He accepted the
testimony of (the supervisor) that Donathan
informed her in June of 2000 that his
shoulder was hurting but he did not inform
her it was related to his work. The ALJ
also accepted (the supervisor's) testimony
that Donathan was moved to another job and
did not miss any time from work due to
shoulder problems until he took off in June
of 2001 for surgery. The ALJ observed that
the claim began as a claim for an acute
injury on June 1, 2000 and then morphed into
a claim for cumulative trauma. On appeal,
Donathan argues both acute injury and
cumulative trauma at various points. He
argues that he gave notice on June 1, 2000
of a work-related injury and that he told
doctors at that time his condition was work
related. He then argues that his injury is
a result of cumulative trauma and he was not
required to give notice until such time as
he was so informed by a doctor. The evidence
does not compel a finding that Donathan
sustained an acute injury at work on June 1,
2000 and gave notice at that time or as soon
as practicable thereafter. The record does
not compel a finding that Donathan sustained
cumulative trauma and gave due and timely
notice following the manifestation of his
disability.
Our standard of review of a decision of the Board "is
to correct the Board only where the Court perceives the Board
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has overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the evidence so
flagrant as to cause gross injustice."
Western Baptist Hospital
v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Having reviewed
the Board's application of the law and the evidence, we conclude
that the Board committed no error.
With regard to Donathan's first issue, while conceding
that the ALJ has the sole discretion to weigh credibility, he
argues that the ALJ cannot ignore "compelling evidence" of workrelatedness that he was moved to a position requiring less
overhead, repetitive work upon his report of shoulder pain to
his supervisor on June 1, 2000.
As stated in the Board's
opinion, in dismissing Donathan's claim the ALJ relied on
evidence that Donathan first reported to his family doctor for a
similar pain in both shoulders; that he acknowledged that the
left shoulder pain was not work-related; and that he failed to
initially mention work relatedness to his supervisor, the human
resources manager, or his treating physicians, as the lack of
mention in medical reports for approximately one year following
the onset of the shoulder pain so demonstrate.
As the Board
noted, besides Donathan's testimony that he told all these
individuals that the pain was work-related, the sole mention
that the pain was work-related appears in a doctor's operative
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report, without further explanation.
It is within the ALJ's
discretion to believe or disbelieve any portion of the evidence.
Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky.
1977).
Having reviewed the record, we cannot agree with
Donathan that the evidence was compelling in his favor or
unsupported by substantial evidence so as to find that the Board
"committed an error in assessing the evidence so flagrant as to
cause gross injustice."
Western Baptist Hospital, supra.
See
generally Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986);
REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985).
Furthermore, we see no error by the Board in affirming
the ALJ's assessment of evidence relating to notice, which
included employer testimony that Donathan did not initially
associate his shoulder pain with work when he complained of
shoulder pain in June, 2000, and changed positions; employer
testimony that Donathan did not miss any work due to shoulder
pain until he took off in June, 2001, for surgery; and evidence
from the independent medical examinations that there was no
objective evidence of a harmful change to Donathan's shoulder as
a result of work.
We thus agree with the Board that there was
no compelling evidence that Donathan gave timely notice of
either an acute injury or cumulative trauma.
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We note that as to this last issue, Quality argued to
both the Board and this Court that Donathan did not file a
petition for reconsideration with the ALJ, thus failing to
preserve the matter for appellate review, relying on Halls
Hardwood Floor Company v. Stapleton, 16 S.W.3d 327 (Ky.App.
2000) and Eaton Axle Corporation v. Nally, 688 S.W.2d 334 (Ky.
1985).
Both are factually distinguishable, however, from the
case at bar.
In Eaton Axle the fact finder failed to make any
factual findings.
The Supreme Court therefore held that the
failure of the fact finder to make statutorily required findings
of fact was a patent error that was required, pursuant to
Kentucky Revised Statutes (KRS) 342.281, to be addressed to the
fact finder in a petition for reconsideration before being
argued on appeal.
Unlike Eaton Axle, in the case at bar the
ALJ, as fact finder, made specific findings of fact.
In Halls
Hardwood Floor Company the issue concerned an erroneous
computation of weekly benefits, which is not at issue herein.
In both of the above cases a petition for reconsideration was
required to bring a "patent error" to the attention of the fact
finder.
As the ALJ herein rendered factual findings, and there
was no issue as to computation, there was no patent error that
needed to be brought before the ALJ before bringing the matter
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on appeal.
Addressing the issue on the merits, therefore, we
find that the Board did not err.
For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brandie L. Hall
Mt. Sterling, Kentucky
Judson F. Devlin
Louisville, Kentucky
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