GARY WATKINS V. L3 COMMUNICATIONS, ET AL.Annotate this Case
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NOT TO BE PUBLISHED OPINION
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RENDERED : MAY 19, 2011
NOT TO BE PUBLISHED
,*uprerar (Evurf of
ON APPEAL FROM COURT OF APPEALS
CASE NO. 2010-CA-000383-WC
WORKERS' COMPENSATION NO . 07-01285
L3 COMMUNICATIONS ;
HONORABLE IRENE STEEN,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (ALJ) dismissed the claimant's application
for benefits, having found that he failed to prove a causal relationship between
his exposure to workplace chemicals and the physical and mental harms he
alleged . The Workers' Compensation Board and the Court of Appeals affirmed .
Appealing, the claimant asserts that the university evaluator's testimony
established the requisite causal relationship and that the ALJ erred by
We affirm. The ALJ stated adequate specific reasons for rejecting the
university evaluator's opinion that the claimant's cognitive symptoms resulted
from his work-related exposure to solvents . Nothing prevented the ALJ from
relying on scientific evidence, which showed the claimant's work-related solvent
exposure to be well below the level considered safe, as an additional basis to
reject the opinion because the evaluator failed to consider the evidence.
The claimant worked for the defendant-employer from August 2001
through sometime in May 2007, the last three to four years of which as an
aircraft mechanic . Part of his job involved disassembling rotor heads and
using a bristle brush to clean the parts in a solvent washer . He stated that he
used the washer about three hours per day; that his employer provided gloves
and a face shield; that he used brake cleaner to scrub parts that were too large
to fit in the part washer ; and that he did not use a respirator, mask, or
breathing apparatus . He alleged that his work-related exposure to various
solvents caused peripheral neuropathy as well as cognitive, respiratory, and
psychological difficulties .
The parties submitted conflicting evidence from lay and medical experts
concerning the nature and duration of the claimant's exposure to workplace
solvents ; his numerous medical conditions ; and the cause of the symptoms he
attributed to solvent exposure. He also underwent university evaluations by
Dr. Kraman, a pulmonologist, and by Dr. Brown, a neurologist .
Dr. Kraman evaluated the claimant's respiratory complaints in January
2008 and was later deposed . He noted a history of sleep apnea and congestive
heart failure. Dr. Kraman testified that the claimant may have experienced
respiratory difficulties related to solvent exposure, as indicated in the history
he related, but that they had resolved completely . He assigned a 0%
impairment rating; concluded that the symptoms required no future medical
treatment ; and stated that the claimant could return to work.
Dr. Kraman could not state with certainty that the respiratory symptoms
the claimant reported did not result from his cardiac problems. He also noted
the possibility that the chemical exposure produced occupational asthma, a
condition that resolves when the offending exposure ceases . He testified,
however, that the inhalation of solvents generally does not cause acute
respiratory difficulties .
Dr. Brown reported that the claimant suffered from a cognitive
impairment, static or slowly progressive, etiology unknown ; distal symmetric
sensory changes suggestive of polyneuropathy ; and carpal tunnel syndrome .
Dr. Brown noted that solvents are known to be neurotoxic, both centrally and
peripherally and, absent any other explanation, were the most likely cause of
the claimant's symptoms . A brain and cervical spine MRI showed evidence of
mild cortical atrophy to which he assigned a 15% impairment rating.
Dr. Brown acknowledged when deposed that the claimant's cognitive
complaints were consistent with heavy alcohol use and the effects of
obstructive sleep apnea as well as with solvent exposure . He also
acknowledged that the EMG/NCV studies showed no evidence of peripheral
neuropathy and that the claimant's carpal tunnel syndrome could be causing
numbness and tingling in his hands . He concluded that it was impossible to
determine what caused the claimant's cognitive impairment and stated
subsequently that solvents did not cause his neuropathy .
The ALJ conducted an exhaustive review of the voluminous evidence
from both lay and medical experts and determined that the claimant failed to
meet his burden of proving that his current symptoms were work-related .
I. STANDARD OF REVIEW .
An injured worker bears the burden of proof and risk of non-persuasion
before the ALJ with regard to every element of his claim .' KRS 342 .285
designates the ALJ as the finder of fact in workers' compensation cases and
prohibits the Board or a reviewing court from substituting its judgment for the
ALJ's "as to the weight of evidence on questions of fact." Thus, the ALJ has the
sole discretion to determine the quality, character, and substance of evidence . 2
An ALJ may reject any testimony and believe or disbelieve various parts of the
evidence, regardless of whether it comes from the same witness or the same
party's total proof. 3
The courts have construed KRS 342 .285 to require a party who appeals a
finding that favors the party with the burden of proof to show that no
substantial evidence supported it, i.e., that the finding was unreasonable under
1 See Roark v. Alva Coal Corporation, 371 S.W.2d 856 (Ky. 1963) ; Wolf Creek Collieries
v. Crum, 673 S .W.2d 735 (Ky. App. 1984) ; Snawder v. Stice, 576 S.W.2d 276 (Ky.
App . 1979) .
2 Paramount Foods, Inc. v. Burkhardt, 695 S.W .2d 418 (Ky. 1985) .
3 Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977) .
the evidences 4 A party who fails to meet its burden of proof before the ALJ
must show that the unfavorable finding was clearly erroneous because
overwhelming favorable evidence compelled a favorable finding, i.e., no
reasonable person could have failed to be persuaded by the favorable
evidences Evidence that would have supported but not compelled a different
decision is an inadequate basis for reversal on appeal. 6
II. The AInT's Application of KRS 342.315(2) .
KRS 342.315(2) states as follows :
The physicians and institutions performing
evaluations pursuant to this section shall render
reports encompassing their findings and opinions in
the form prescribed by the commissioner. Except as
otherwise provided in KRS 342 .316, the clinical
findings and opinions of the designated evaluator
shall be afforded presumptive weight by
administrative law judges and the burden to overcome
such findings and opinions shall fall on the opponent
of that evidence. When administrative law judges
reject the clinical findings and opinions of the
designated evaluator, they shall specifically state in
the order the reasons for rejecting that evidence.
The claimant argues that Dr. Brown's opinion established a causal
relationship between his work-related solvent exposure and his cognitive
impairment and that the ALJ misapplied KRS 342 .315(2) by disregarding his
opinion in favor of scientific evidence from non-physicians . We disagree . The
4 Special Fund v. Francis, 708 S .W.2d 641, 643 (Ky. 1986) ; Mosley v. Ford Motor Co.,
968 S.W. 2d 675 (Ky. App . 1998) ; REO Mechanical v. Barnes, 691 S .W.2d 224, 226
(Ky. App. 1985) .
6 McCloud v. Beth-Elkhorn Corp., 514 S .W. 2d 46 (Ky. 1974) .
ALJ stated ample specific reasons for rejecting Dr. Brown's opinion, which
renders moot the argument that the opinion proved causation .
Dr. Brown reported that a causal relationship between the claimant's
solvent exposure and his cognitive symptoms was "impossible to prove, but
solvents are well known to be neurotoxic ." He also stated, "Without evidence
for another etiology, solvent exposure must be considered the most likely cause
of the claimant's cognitive dysfunction and possibly his neuropathy." He
acknowledged when deposed, however, that "[w]e don't know what's causing
[the claimant's] symptoms . I don't know what's causing his symptoms ." He
also stated, "There is no way to prove a causal relationship in this case . . .
[beetween his - there's no way to prove that his work exposure caused his mild
cognitive impairment . . . ."
The ALJ found that the claimant may have had some temporary
respiratory discomfort from his work-related solvent exposure, which resolved
without permanent impairment, but that he failed to show a causal
relationship between the exposure and his cognitive symptoms . The ALJ
reasoned that he would have sustained permanent damage to his lungs had he
been subjected to toxic levels of the chemicals, but there was no evidence of a
pulmonary impairment. The ALJ rejected . Dr. Brown's conclusion that the
claimant's cognitive problems resulted from toxic exposures, reasoning that Dr.
Brown appeared not to have reviewed the results of tests performed to
determine the air quality and toxicity of the solvents used in the workplace,
which showed them to be well below the levels considered to be safe ; that he
did not attribute the peripheral neuropathy to solvent exposure ; and that he
failed to consider the other explanations offered for the claimant's cognitive
Addressing other potential causes, the ALJ noted specifically that the
claimant ceased using the CPAP machine for his sleep apnea ; that he suffered
from cardiomyopathy and congestive heart failure as well as hypertension ; that
Dr. Brown found the cortical atrophy revealed by a brain MRI to be consistent
with chronic alcohol abuse ; and that the MRI did not reveal the type of findings
that the claimant's expert, Dr. Middaugh, and other medical experts associated
with toxic solvent exposure. Moreover, medical evidence indicated that many
of the claimant's symptoms were known to result from a combination of
alcohol, which he admitted ingesting daily., and Triazolam, which was one of
The ALJ also found the lay and scientific evidence concerning the nature
of the claimant's exposure to solvents and the toxicity of the solvents to be very
persuasive. Pointing to a co-worker's testimony that the claimant was exposed
to solvents for less than the three hours per day that he alleged, the ALJ noted
that Dr. Middaugh appeared to have formed her opinions under the incorrect
assumption that he was exposed to solvents for eight hours per day in air that
"was saturated with fumes from open containers and no ventilation ."
Moreover, she failed to consider the results of air and solvent sampling, which
showed the exposure to be safe. The ALJ concluded that the claimant's solvent
exposure was "far below the levels which have been established as being toxic."
The evidence did not compel a finding in the claimant's favor . The ALJ
complied with KRS 342 .215(2) by listing ample specific reasons for rejecting Dr.
Brown's opinion of causation and for finding that the claimant failed to meet
his burden of proof. Moreover, the claimant points to nothing that prevented
the ALJ from relying on scientific evidence that showed his solvent exposure to
be well below the level considered safe as an additional basis to reject Dr.
Brown's opinion . Both he and Dr. Middaugh failed to consider the evidence .
The decision of the Court of Appeals is affirmed.
All sitting . All concur.
COUNSEL FOR APPELLANT,
GARY WATKINS :
Charles William Gorham
3151 Beaumont Centre Circle
Lexington, KY 40513
COUNSEL FOR APPELLEE,
L3 COMMUNICATIONS :
Rodney J . Mayer
U'Sellis 8v Kitchen, PSC
600 East Main Street
Louisville, KY 40202