THACKER (LORA) VS. COMPENSATION MORGAN COUNTY ARH , ET AL.

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RENDERED: NOVEMBER 20, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2009-CA-001062-WC LORA THACKER v. APPELLANT PETITION FOR REVIEW OF A DECISION OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-08-00452 MORGAN COUNTY ARH; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE AND CLAYTON, JUDGES; HARRIS,1 SENIOR JUDGE. CLAYTON, JUDGE: Lora Thacker petitions for the review of the May 8, 2009, opinion of the Workers' Compensation Board (Board) that affirmed the December 30, 2008, order of bifurcation rendered by an administrative law judge (ALJ). The 1 Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580. order dismissed Thacker’s claim for occupational disability benefits filed against Morgan County Appalachian Regional Hospital (ARH) on the grounds that her injury did not arise out of her employment. On appeal, Thacker argues the Board abused its discretion in finding her injury was not within the course of her employment. Thacker also argues the dismissal of her claim was in contradiction of the exclusive remedy provision contained in the Workers’ Compensation Act (Act). Finding no error in the Board's decision, we affirm. In February 2005, ARH employed Thacker as patient care coordinator/respiratory therapist. Her job primarily required that she go to patients’ homes, set up oxygen equipment, and supervise truck drivers to make sure they had proper equipment and tanks. On the morning of the alleged injury, May 8, 2007, Thacker woke up with a headache but decided to go to work anyway. While on her way to work, an employee called Thacker from the road. He said he felt like he might pass out and was going to the emergency room. In response to the employee’s call, Thacker went to the ARH emergency room to check on him. While the physician in the emergency room (ER) examined Thacker’s employee, he observed that Thacker had a migraine headache. He suggested that she have an injection to treat the headache. Initially, Thacker refused the treatment. Eventually, after some persuasion from the ER physician, she consented to the shot. Before having the injection, she asked the employee with her in the ER to -2- contact Thacker’s supervisor and have the supervisor clock her out. But the supervisor was in a meeting, and thus, Thacker was not clocked out. Unfortunately, the hospital nurse who administered the shot injected the shot in the wrong place. The shot was given near the left hip bone. After the shot was administered, Thacker informed the nurse that the injection burned. The nurse told Thacker that this reaction was normal. Thacker’s husband picked her up following the pain shot. At home, she took a dose of Phenergan, and went to bed. Later that day, around 6:00 p.m., Thacker returned to work even though she had experienced a reaction to the shot earlier that day. She also worked the next day even though she had significant complications from the injection. The injection site was red, hot, swollen, and painful. Finally, on May 15, 2007, she was taken off work and has not worked since. Besides additional medical tests and evaluation by other doctors, Thacker had various medical treatments including physical therapy, ultrasonic heat and medication. Thacker continued to experience severe pain at the injection site and alleges that she has developed reflex sympathetic dystrophy or RSD. On April 10, 2008, Thacker filed Form 101, an application for resolution of injury claim against ARH. In her application for benefits, Thacker asserted that she has a hip condition, which is associated with anxiety and depression, allegedly resulting from a Toradol injection administered to treat a migraine headache. Thacker contends that the injury constitutes a work-related injury. The ALJ bifurcated the issues and considered only the scope of -3- employment issue. Ultimately, the ALJ found that Thacker had failed to prove the occurrence of an injury within the scope of her employment and dismissed the action. Thacker then filed a Notice of Appeal to the Workers’ Compensation Board on January 8, 2009. The issues in her appeal to the Board were whether the dismissal of her claim constituted an abuse of discretion by the ALJ and whether the ALJ was compelled by the statutory exclusive remedy provision of Kentucky Revised Statues (KRS) Chapter 342, to find that Thacker’s injury occurred during the scope of her employment. The Board issued an opinion affirming the ALJ’s order. This appeal follows. Although KRS 342.285 designates the ALJ as the finder of fact, a finding that is arbitrary, capricious, or clearly erroneous is subject to reversal on appeal. Thacker, however, bears the burden of proof in the original action, and therefore, to be successful on appeal the evidence must compel a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). And as long as the ALJ’s opinion is supported by substantive evidence, it cannot be said that the evidence compels a different result. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). Statutory guidelines necessitate that a compensable injury must arise both “out of[”] and [“]in the course of employment[.]” KRS 342.0011(1). Statutorily, “the language, ‘in the course of . . . employment’, refers to the time, place, and -4- circumstances of the accident, and the words, ‘arising out of . . . employment’, relate to the cause or source of the accident.” Masonic Widows and Orphans Home v. Lewis, 330 S.W.2d 103, 104 (Ky. 1959). Furthermore, the fact that an injury occurred at work does not, in itself, establish causation. Pierce v. Kentucky Galvanizing Co., Inc., 606 S.W.2d 165 (Ky. 1980). Moreover, in January-Wood Co., v. Schumacher, 231 Ky. 705, 22 S.W.2d 117 (Ky. App. 1929), the Court held that the Act does not grant compensation for injuries or misfortunes that are merely contemporaneous with or collateral to employment. The only issue before the ALJ was whether Thacker’s injury “arose out of” her employment when she received an injection. The evidence presented to the ALJ was such that she was unable to find any causative link between Thacker’s work and her injury. The dispositive fact is that Thacker deviated from her work duties to be treated for a migraine headache. Indeed, Thacker instructed a fellow employee to contact her place of employment to clock her out. But for the fact that Thacker’s supervisor did not receive the phone call to take Thacker off the work schedule, no question would have even existed that she was not working when she was treated for the headache. Further supporting the conclusion that the injury was not work-related is the fact that Thacker had suffered from migraine headaches since childhood. Next, the treatment received was not in response to a work directive or for a work condition. Finally, the physician and nurse who treated her in the ER were not Thacker’s direct or indirect supervisors. In sum, Thacker’s treatment for her -5- migraine headache was a personal act for her own benefit and not her employer. The personal nature of the act is bolstered by Thacker’s testimony that previously when she became ill while working at ARH, she clocked out before seeking medical treatment for asthma or bronchitis. Thacker received negligent treatment for a condition that was not work-related. Thacker relies heavily on Jefferson County Public Schools/Jefferson County Bd. Of Educ. v. Stephens, 208 S.W.3d 862 (Ky. 2006), to support her position that the injury was a result of a workplace injury. Thacker suggests that where employment and personal cause combine to produce harm, the law does not weigh the importance of the two causes but considers whether the employment was a contributing factor. She argues that because she was at the hospital to check on an ill driver, her presence at the hospital, including receiving the shot, had a job purpose. Thus, Thacker claims that the injury from the incorrectly given inoculation was work-related. And Thacker maintains that her claim mirrors the facts in Stephens. But contrary to the facts and holding in Stephens, Thacker has provided no evidence demonstrating that her employment was a contributing factor to the disability that resulted from the shot. In other words, her job did not cause her migraine headache. Here, Thacker had the headaches since childhood and had been treated with injections of Toradol before, without complications. In Stephens, no one could discern whether the plaintiff’s injury was the result of an idiopathic incident. Because that could not be established, Ms. Stephens was entitled to the benefit of presumption that the fall was work-related. -6- Workman v. Wesley Manor Methodist Home, 462 S.W.2d 898 (Ky. 1971). Stephens’s injury was held to be work-related. In the case at hand, there is no doubt that the migraine headache was unconnected to Thacker’s employment. The injury was not proven to be work-related because it did not result from a workplace cause. Thacker does not enjoy the benefit of the presumptions which aided Ms. Stephens. Thacker’s final argument on appeal is that the ALJ’s dismissal of her claim contradicts the exclusive remedy provision contained in the Act. Thacker points out that the Act’s exclusive remedy provision preempts common law tort claims by employees against an employer when the injury or death is work-related. Thacker asserts that because she is an employee of ARH and the injury occurred there, she is precluded from bringing any civil action against ARH. Hence, her argument is that because she is barred by the exclusive remedy provision in the Act from seeking civil redress, she must be compensated under the Act for the injury sustained while she worked for ARH. But as shown above, the injury incurred by Thacker was not a work-related injury, and consequently, the Act’s exclusive remedy provisions do not apply to the fact situation in this case. We affirm the Board’s decision affirming the ALJ’s opinion because the ALJ’s decision is based on substantial evidence in the record, and we cannot say that the evidence compels a finding to the contrary. In addition, we are unable to find that the ALJ or the Board erred in the legal conclusions. Thus, the Board’s decision is affirmed. -7- ALL CONCUR. BRIEF FOR APPELLANT: Stephanie L. Kinney Glenn M. Hammond Pikeville, Kentucky BRIEF FOR APPELLEE, MORGAN COUNTY ARH: Denise Kirk Ash Lexington, Kentucky -8-

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