WEBB (DAVID) VS. COMPENSATION TOYOTA MOTOR MANUFACTURING OF KENTUCKY, INC. , ET AL.Annotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-00287
TOYOTA MOTOR MANUFACTURING
OF KENTUCKY, INC.; HON. LAWRENCE
F. SMITH, ADMINISTRATIVE LAW
JUDGE; AND WORKERS' COMPENSATION
** ** ** ** **
BEFORE: CLAYTON AND DIXON, JUDGES; GRAVES,1 SENIOR JUDGE.
CLAYTON, JUDGE: David Webb appeals from an opinion of the Workers’
Compensation Board (“Board”) affirming an order of an Administrative Law
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
Judge (“ALJ”) in favor of his employer, Toyota Manufacturing of Kentucky, Inc.
(“Toyota”). We will affirm the decision of the Board.
Mr. Webb began working for Toyota as a body welder in May of
1992. As a body welder, he was required to perform repetitive lifting and pulling
each day. Mr. Webb began having problems with his neck in 1994 and, after
notifying Toyota of the problem, was sent to physical therapy for treatment.
In December of 1997, Mr. Webb injured his neck playing basketball.
Dr. James Bean testified that Mr. Webb also experienced neck pain and numbness
in his hands after playing golf in March of 2002. All of these events, however,
were manageable for Mr. Webb until an incident at Toyota in February of 2002.
This event occurred after he began working on the V6 inner line at Toyota. On
March 20, 2003, Mr. Webb was taken off work after he experienced severe pain.
He testified that he experienced constant headaches and pain in his neck after
loading hundreds of piston rings onto pistons.
As a result of his symptoms, Mr. Webb did not return to work until
May of 2003. In October of that same year, his symptoms returned and in
December of 2003, he underwent surgery. Dr. Bean performed the surgery and
after, noted that Mr. Webb had a good result with marked relief of pain. Mr. Webb
returned to Toyota in 2004 upon the release of Dr. Bean.
In October of 2005, Dr. Bean completed a Form 107 in which he
assessed Mr. Webb as having a 20% whole person impairment. He diagnosed it as
being a degenerative disc which was pre-existing, but also indicated that the
conditions at Toyota aggravated Mr. Webb’s condition.
In April of 2005, Dr. Robert Nickerson diagnosed Mr. Webb as
having post C5-C6 anterior cervical disectomy and fusion, and set forth his opinion
that there was a 25% whole person impairment. As Dr. Bean found, Dr. Nickerson
concluded that there was a pre-existing condition which was exacerbated by Mr.
Webb’s work at Toyota.
Dr. Ray Wechman began treating Mr. Webb in January of 1997. As a
result of sports, Dr. Wechman diagnosed Mr. Webb as having exacerbation of
chronic neck pain. In March of 2002, Mr. Webb once again went to Dr. Wechman
after his golfing incident noted above. In March of 2003, Mr. Webb underwent a
series of steroid shots with Dr. Wechman and in October of that same year, saw his
associate, Kelly Burgess, who referred him to Dr. Bean.
On June 14, 2005, Dr. Michael Best performed an independent
medical evaluation (“IME”) of Mr. Webb’s condition. Dr. Best performed a
physical examination of Mr. Webb and reviewed his medical history as
documented by the other doctors Mr. Webb had seen throughout the years. In his
report, Dr. Best noted that Mr. Webb had been examined by Dr. David
Bosomworth just two days before the injury he had alleged at work. Dr. Best’s
conclusion was that Mr. Webb had a non-work related condition which pre-existed
the work injury at Toyota. Dr. Best assessed a 28% whole person impairment
which he attributed to the surgery Mr. Webb had undergone.
STANDARD OF REVIEW
In reviewing a decision of the Board, our function “is to correct the
Board only where [we] perceive the Board 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).
“[T]he claimant bears the burden of proof and the risk of
nonpersuasion before the fact-finder with regard to every element of a workers’
compensation claim.” Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). We
recognize that it is within the broad discretion of the ALJ “to believe part of the
evidence and disbelieve other parts of the evidence whether it came from the same
witness or the same adversary party’s total proof.” Caudill v. Maloney’s Discount
Stores, 560 S.W.2d 15-16 (Ky. 1977).
This case was originally brought before the ALJ for hearing and he
concluded that Mr. Webb’s case should be dismissed for failure to meet his burden
in establishing that his injury was work-related. The ALJ opined that the injury
which Mr. Webb alleged he had on March 20, 2003, was inconsequential and that
his condition was, instead, based on his basketball injury in 1995.
Mr. Webb appealed the decision to the Board and, in an October 6,
2006, decision, the Board vacated the ALJ’s decision. It found that the grounds
upon which the ALJ had based his decision were unsound in that he had
overlooked the testimony of both Dr. Bean and Dr. Nicholson. The Board found
that the opinion of these two doctors was that at least part of Mr. Webb’s injury
The ALJ, on remand, reconsidered the record, including the testimony
of Dr. Bean and Dr. Nicholson and made additional findings of fact. The ALJ
again dismissed Mr. Webb’s case, however, finding that the opinions of Dr. Best
on both the issue of whether the injury was work-related and whether Mr. Webb
had a cumulative injury that merely manifested itself on March 20, 2003, were
more persuasive than those of the other physicians.
Mr. Webb then appealed his decision to the Board once again. The
Board found that, given the evidence in the record regarding Mr. Webb’s medical
history and the dates of events which led to his March 20, 2003, injury, the
outcome of the ALJ was reasonable and affirmed his decision.
Mr. Webb now brings his appeal from the decision of the Board to us.
Mr. Webb sets forth the issue before us as being whether the opinion
of a non-practicing IME physician that his work activity was not sufficient to cause
loading of the cervical spine and, thus, cumulative trauma injury, constituted
substantial evidence, where the physician acknowledged that he did not know the
nature of Mr. Webb’s activity at work.
Dr. Best testified as follows regarding his knowledge of Mr. Webb’s
activity during his work day at Toyota:
During this time between 1995 and 2002, or even
2003, was he actively working at Toyota?
I believe so, yes.
Was he performing repetitive work?
I would assume so.
All right. Doctor, he was engaged, I assume, in
regular work activity over that seven-year period,
is that right?
You know, again, I can’t comment specifically on
that. I don’t have those records as to what his
attendance was at all. I think that is a better
question that goes to either he or the people at
All right. Well, what I’m interested in, Doctor, is
between 1995 and the recommendation of surgery
in 2000, and the surgery in 2003, he engaged in
activity which we assume included repetitive work
activity for seven to eight years for Toyota; is that
All right. And are you familiar with repetitive
trauma and cumulative trauma and things of that
I certainly am.
All right. Could that also cause an individual to
have cervical problems and degenerative problems
of the cervical area?
Well, first you have to have a repetitive strain to
the area. There is no indication that I have that
there was any loading of the cervical spine in any
of his jobs.
All right. And what were his jobs?
Well, let’s see. He worked in body weld in 1994
and 1995. He drove a forklift in conveyance. He
worked the inner V-6 line, subsequently worked
the V-6 turntable and four cylinder upper lines.
Do you know what he did in those jobs?
I do not.
Mr. Webb uses this dialogue as proof that there was not substantial
evidence upon which the ALJ could base his decision. He cites Cepero v.
Fabricated Metals Corp., 132 S.W.3d 839 842-43 (Ky. 2004). In Cepero, the
Court found that:
[W]here it is irrefutable that a physician’s history
regarding work-related causation is corrupt due to it
being substantially inaccurate or largely incomplete, any
opinion generated by that physician on the issue of
causation cannot constitute substantial evidence.
Medical opinion predicated upon such erroneous or
deficient information that is completely unsupported by
any other credible evidence can never, in our view, be
reasonably probable. Furthermore, to permit a ruling of
law to stand based upon such evidence that is not
reliable, probative and material would be fundamentally
unjust. We therefore conclude the opinions of [the
physicians] do not measure up as substantial evidence,
and it was error for the ALJ to blindly elect to adopt their
flawed conclusions to support any ruling of law.
Mr. Webb contends that Dr. Best’s medical opinion is predicated upon
erroneous or deficient information which does not, under Cepero, rise to the level
of substantial evidence.
When a decision of an ALJ is based on substantial evidence of
probative value, it may not be disturbed on appeal. Special Fund v. Francis, 708
S.W.2d 641 (Ky. 1986); Newberg v. Armour Food Co., 834 S.W.2d 172 (Ky.
1992). “Substantial evidence means evidence of substance and relevant
consequence having the fitness to induce conviction in the minds of reasonable
men.” Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky. 1971).
In Cepero, the physicians involved did not receive accurate
information from the claimant regarding his injuries. The claimant did not inform
them of a non work-related injury which preceded the alleged work-related injury.
Consequently, the Supreme Court of Kentucky found that the Board had properly
held the medical opinions the ALJ had based his decision upon were flawed. In
the present case, Dr. Best knew of Mr. Webb’s prior injuries. Mr. Webb asserts
that it is the fact that Dr. Best did not know the nature of his work at Toyota that
makes his opinion inaccurate.
As set forth above “[t]he function of further review of the [Board] in
the Court of Appeals is to correct the Board only where the the [sic] Court
perceives the Board 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, 827 S.W.2d 687-88. Currently, there is
no such gross injustice in the Board’s decision to uphold the ALJ’s determination.
The Board held that:
While Dr. Best may have conceded he lacked
clear-cut detailed knowledge of the particular physical
requirements of Webb’s job duties from 1992 through
2003, such evidence merely goes to the weight to be
accorded Dr. Best’s testimony and does not render his
opinions less than substantive. Dr. Best testified there
was nothing in the information he garnered and reviewed
indicative of “loading of the cervical spine” sufficient to
produce a cumulative harmful change to that body part.
Other than general statements to the contrary by Drs.
Nickerson and Bean, the question was not specifically
addressed by Webb in his case-in-chief before the ALJ.
The burden of proof relating to that issue rested with
Webb. The absence of proof concerning the subject,
which ultimately influenced the ALJ’s decision, does not
compel a finding in Webb’s favor - nor somehow render
Dr. Best’s conclusions as lacking in substantive and
probative value. While, had the ALJ been so inclined, he
could have rejected Dr. Best’s testimony in favor of the
opinions expressed by Dr. Bean and Dr. Nickerson, as a
matter of law he was not required to do so.
Board Opinion at pp. 14-15. Citations omitted.
We agree with the Board. The ALJ’s decision was based on
substantial evidence and Mr. Webb did not meet his burden of persuasion
regarding the affect his work had on his prior existing condition. Thus, we will
affirm the decision of the Board.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lloyd R. Edens
H. Douglas Jones
Kenneth J. Dietz