OPINION ENTERED: December 31, 2008
CLAIM NO. 07-77805
ARAMARK PETITIONER
VS. APPEAL FROM HON. JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE
HENRY CARSON
and HON. JOSEPH W. JUSTICE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman; COWDEN and STIVERS, Members.
GARDNER, Chairman. Aramark seeks review from a decision rendered June 27, 2008, by Hon. John W. Thacker, Administrative Law Judge (“ALJ”), granting Henry Carson (“Carson”) an award of benefits due to work-related cumulative trauma based upon a permanent partial disability rating of 28.75%. Aramark also appeals from an order issued August 20, 2008, by ALJ Joseph W. Justice, granting its petition for reconsideration.
On appeal, Aramark contends ALJ Thacker was “confused” as to the evidence and utilized the wrong legal standard in deciding the merits of Carson’s claim. Aramark charges the ALJ erred in finding a cumulative trauma injury, contending instead that Carson “from Day 1” alleged a specific injury. In addition, Aramark challenges the ALJ’s findings concerning notice. Aramark argues Carson failed in his burden of proof in establishing a work-related cumulative trauma injury. Aramark challenges the ALJ’s reliance on the medical opinions expressed by Dr. Karin Swartz. Aramark contends Dr. Swartz’s opinion as to causation was substantially inaccurate and largely incomplete. Aramark further argues as follows:
Having professed a specific injury, with significant debilitating injuries as witnessed by his family and yet denying an injury on numerous occasions to his medical doctors, [Carson] should not be permitted to have this Board sustain an Administrative Law Judge who obviously did not understand the facts, circumstances or law regarding this case. Dr. Swartz never said the Plaintiff’s complaints were caused by cumulative trauma. She said, however, that his ‘injury’ was the cause of his complaints and then recited as a factual allegation that his symptoms manifested themselves in April or May [2007] which we have proven to be false. She said, by checking a box on a Form 107, that his ‘injury’ was the cause of his complaints but recites that there was no injury. Given the circumstances, one would expect a definitive statement from the doctor, not the type of self-serving statements she made just trying to help the Claimant by saying that he was a ‘hard working individual.’
We affirm.
Carson was born on October 12, 1954, and is a resident of Lexington, Kentucky. He is left hand dominant. It is undisputed that he has engaged in manual labor his entire working life.
Aramark is a uniform, towel and linen supply service. Carson entered Aramark’s employ as a maintenance worker on August 5, 2002. In that job, he was responsible for loading dirty laundry and operating, servicing, and maintaining industrial washers and dryers (each with a 3,000 pound load capacity), and laundry conveyors. Carson testified he worked regularly for Aramark forty to fifty hours per week, plus eight to ten hours of overtime. He described the work as “heavy.”
Carson testified that on January 1, 2007, he was taking hold of a motor part weighing approximately 120 pounds over a cage covering a motor of an industrial washer handed to him by his supervisor, Mike Hall (“Hall”), when he felt a “pop,” producing pain and stiffness in his left shoulder. Carson stated he immediately informed Hall of the injury. Carson explained, however, at the time he thought the incident was minor.
Carson testified he initially attempted to work through his symptoms by self treating with over-the-counter medications. Carson stated that over the next several months his condition gradually worsened, causing severe stiffness in his neck, left shoulder and arm, and eventually his left arm began to draw up. Carson stated that in time, because of the way he carried his arm, his co-workers thought he had experienced a stroke.
Carson first sought medical treatment for the injury from Dr. Andrew Hoellein, his family doctor, at the University of Kentucky Chandler Medical Center – Sunrise Clinic in May 2007. Based on Carson’s complaints, Dr. Hoellein at the outset believed Carson was suffering from possible multiple myeloma1. Subsequent testing, however, disproved that preliminary diagnosis.
On July 9, 2007, Carson was seen by Judith Daniels (“Nurse Daniels”), ARNP, for complaints of left shoulder pain that was reported to be more prominent from the elbow down to the thumb and first two fingers. Carson reported experiencing persistent problems with his left side. Nurse Daniels reported:
Is now unable to pick things up with his left arm and is having a hard time buttoning his shirts and it is starting to interfere with his work. Shoulder absolutely aches and he is unable to lift his arm fully above his head and apparently has not been able to do this now for a couple of months. As he thinks back he says this really started in May. Does not [recall] any specific job injury or anything happening to him at home that might have precipitated this. Has sustained no previous neck or lower back injury. No bowel or bladder issues or problems. Has been taking naprosyn[2] almost routinely without any benefit whatsoever. His wife is now very concerned about all of this as it is starting to interfere with his daily life and his ability to carry on ADLs[3] and they really feel that something needs to be done.
X-rays of the left shoulder revealed degenerative and posttraumatic changes. Following a physical examination, Nurse Daniels referred Carson for an orthopedic evaluation.
On July 10, 2007, Carson underwent an MRI of the left shoulder that revealed evidence of degenerative changes and moderate rotator cuff tendinosis. Carson was subsequently referred to Dr. Kyle Parish at the University of Kentucky Sports Medicine Clinic, who injected the shoulder with steroids and prescribed physical therapy. When Carson’s symptoms failed to improve, Dr. Parish suspected he was suffering from a central lesion in the cervical spine.
On July 30, 2007, Carson came under the care of Dr. Franca Cambi, a neurologist. Dr. Cambi recorded that Carson began to experience pain and weakness in his neck, left shoulder and arm approximately four months earlier. Carson also complained of pain in his low back and buttocks, as well as stiffness in the left leg. On physical examination, Dr. Cambi noted spastic hemiparesis4 with severe contracture of the left arm. He also noted Carson’s gait was markedly abnormal with circumduction and extension of the left leg. Dr. Cambi diagnosed Carson with progressive weakness and spasticity on the left side with bilateral motor signs affecting both the upper and lower
extremities. Dr. Cambi stated he was concerned about a spinal cord compression due to what he described as a “slowly expansive process, most likely stenosis or herniated disc or hemangioma.”
On the basis of these findings, Dr. Cambi ordered Carson to undergo a cervical MRI, which revealed evidence of developmental spinal stenosis and a moderate sized, centrally located herniated disc at C3-4 compressing the spinal cord. The MRI also demonstrated the presence of a smaller central disc protrusion at C6-7. Dr. Cambi subsequently referred Carson to Dr. Swartz, a neurosurgeon.
Dr. Swartz first saw Carson for treatment on August 1, 2007. At that time, Carson related complaints of pain, numbness and weakness in both arms, worse on the left than the right. Carson further described weakness in his legs producing balance problems and difficulty walking. Dr. Swartz recorded that Carson’s problems began with his left shoulder, which Carson attributed to arthritis. She noted Carson continued to work for four to five months in spite of his symptoms, resulting in his problems becoming progressively more severe. She also noted Carson worked as a maintenance man maintaining industrial washers and dryers, and he typically was required to lift more than 100 pounds on a daily basis. Following a physical examination and review of the cervical MRI, Dr. Swartz diagnosed Carson as having C3-4 stenosis due to a disc herniation at that level, with evidence of myelopathy.
On August 7, 2007, Carson underwent surgery consisting of an anterior cervical discectomy and fusion at C3-4 performed by Dr. Swartz. After surgery, Carson remained off work until October 24, 2007, at which time he returned to his normal and customary job duties at Aramark earning the same or greater average weekly wage.
On October 8, 2007, Carson filed an application for benefits alleging an acute injury to his cervical spine that occurred at work on January 1, 2007. Issues preserved for determination at the benefit review conference were listed as the occurrence of a work-related injury; due and timely notice; entitlement to temporary total disability benefits; entitlement to medical benefits; and, extent and duration of disability.
Hall, Carson’s supervisor, testified by deposition taken January 24, 2008, that although he remembered helping Carson repair a washing machine motor in January 2007, he did not recall Carson telling him that he injured himself at that time. Hall stated that had Carson reported an injury, he would have completed an accident report. Hall acknowledged that in 2007, Carson began to exhibit symptoms that caused both the management personnel and Carson’s coworkers at Aramark to become concerned he had suffered a stroke. Hall testified that an accident report was filed out by Carson and given to him shortly before Carson underwent surgery in August 2007.
Terri Baxter (“Baxter”), a human resources officer with Aramark, testified by deposition taken March 24, 2008. Baxter stated that in early August 2007, Carson’s wife called her on the telephone to report that her husband had suffered a work-related injury. Around the same time, she was contacted by one of Carson’s co-workers informing her that Carson appeared to be “dragging his body.” Baxter testified she subsequently contacted Hall, who confirmed Carson was exhibiting stroke like symptoms, and instructed Hall to send Carson home from work at that time. Baxter testified that upon learning Carson was scheduled for surgery, she also assisted him in preparing the necessary leave of absence paperwork seeking family medical leave.
Baxter testified she received a second telephone call from Carson’s wife on August 22, 2007, regarding the work-related nature of her husband’s injury, after which she emailed Mike Grabowski, the human resources director for Aramark located in Illinois, concerning the matter. Baxter’s email stated in relevant part as follows:
I called MaryAnn yesterday and left a message w/ her regarding an employee here at MC542. I called this morning and she said you were on the phone all day yesterday and my best bet would be to send you an e-mail. So, here it is. We have an employee here (maintenance mechanic – union) that exhibited signs of a stroke. This started about a couple of months ago. He finally went to the doctor and they diagnosed him as having a pinched nerve in his back. He worked right up until the point that he had to have surgery which was a couple of weeks ago. I paid out all vacation time that he had on the books (as I should when anyone goes out on leave) on his last paycheck. This past Friday his wife called and asked me when he would start receiving his work comp payments and I told her that no report was ever filed stating that it was in fact a work related injury so there would be no work comp benefits. I am unsure how to proceed.
Baxter received a responsive email later that afternoon instructing her to “file a w/c claim on behalf of the employee as soon as possible.” Baxter stated that August 21, 2007 was the first time she had any knowledge Carson was suggesting he had a workers’ compensation claim. Baxter stated that she subsequently provided a first report of injury to Hall, Carson’s supervisor, and instructed that he have Carson complete the form. Baxter testified that she questioned the validity of Carson’s claim because of the delay involved in providing the company notice of the injury. Baxter further stated that to the best of her knowledge, Carson never informed Hall, his immediate supervisor, concerning a work injury prior to August 2007.
Dr. Swartz completed a Form 107 medical report on April 10, 2008. At that time, Dr. Swartz recorded Carson’s history of complaints and injury as follows:
According to my initial evaluation, 8-2-07:
Neck and bilateral arm pain, numbness, tingling, fasciculation, and weakness in the arms/hands plus ataxia/gait & balance problems. It was onset @ April 2007 (4-5 mo ago), noticed at work, but no singular “accident” remembered. He continued to work despite the progressive pain and weakness. He developed inability to elevate left arm/left shoulder & left arm/forearm/hand weakness. Right hand weakness myelopathy findings on exam documented C3-4 disk herniation/focal stenosis identified.
Dr. Swartz diagnosed Carson with a herniated disc at C3-4 and cervical spondylotic myelopathy. She further confirmed Carson had undergone an anterior cervical discectomy and fusion on August 7, 2007.
Dr. Swartz stated that within reasonable medical probability Carson’s cervical condition was work-related, and his years of heavy lifting at work was the cause of his complaints. Dr. Swartz further indicated the nature of Carson’s work aggravated and/or accelerated the effects of his underlying degenerative disc disease in his cervical spine. Based on the American Medical Association, Guides to the Evaluation of Functional Impairment, 5th Edition (“AMA Guides”), Dr. Swartz assessed Carson as having a 25% whole person impairment.
Dr. Ray Garman performed an independent medical evaluation of Carson on November 29, 2007. Dr. Garman recorded the following history:
At issue is the question about injury to the shoulder while lifting a motor, with working diagnosis at that time of rotator cuff tendonitis; subsequently cervical herniation was felt to be the issue.
. . . .
In his job as a machine maintenance person in an industrial laundry, he does things such as rigging laundry machines, doing stick and MIG welding, using acetylene and oxygen torch cutting as well as squlgeeing floors as needed. His schedule is day shift five days a week, but he is frequently called in on Saturday for needed machine repairs.
. . . .
In early 2007 he noted some ache in his left shoulder and was evaluated by his local physician at the insistence of his wife and [there] was some question about whether this was a rotator cuff problem at that time. Symptoms were tingling and a weakness in [the] left arm which had been progressing over six months or so until he was ultimately evaluated in the summer of 2007.
He indicated symptoms had been sufficiently progressive during this time to the point where he could not button his shirt with his dominant left hand and some weakness in his right arm was also noted and it was beginning to get weak.
Concomitantly, a change in his walk with his left leg dragging because of difficulty in extending was noted. He reports that his supervisor had inquired numerous times about this change in his appearance.
Dr. Garman noted that on August 7, 2007, Carson underwent a cervical discectomy and fusion with allograft and plating. Dr. Garman further recorded that an MRI of the left shoulder demonstrated supraspinatis tendinosis with low grade tearing of the posterior distal supraspinatus tendon without full thickness tear; subdeltoid bursitis with a type III anterior acromium; and, labral degeneration.
Following a physical examination and review of medical records, Dr. Garman diagnosed Carson as status post cervical disc removal with a good response to “what seemed to be a rather significant and progressing cervical myelopathy.” Dr. Garman further diagnosed Carson as suffering from a type III acromium and partial tearing of the posterior supraspinatus of the left shoulder, which he felt had the potential for further progression. Based on the AMA Guides, Dr. Garman assessed Carson as having a 15% whole person impairment.
Dr. James C. Owen performed an independent medical evaluation of Carson on April 3, 2008 and later testified by deposition. Dr. Owen recorded that Carson suffered a work-related injury in the first week of January 2007 while lifting and experienced progressive problems involving his left shoulder, left arm, mid back and gait disturbance over the ensuing months thereafter, eventually resulting in surgery at C3-4.
Following a physical examination and medical records review, Dr. Owen diagnosed Carson as status post C3-4 discectomy and fusion with persistent shoulder pain, and mild range of motion deficit with positive impingement sign. Dr. Owen stated Carson’s injury in early January 2007 was the cause of his condition. Dr. Owen alternatively testified regarding causation as follows:
-
Is this the kind of condition that a gentleman who is involved in heavy lifting, pushing, pulling, manual labor for a number of years, is this the kind of condition that can result either as a result of one condition or can it result from the traumatic, repetitive motions of heavy lifting, cranking the wrenches, lifting parts, doing that kind of work?
-
Certainly, it’s a – can be ongoing. It doesn’t have to be an acute trauma type of etiology. I think that’s pretty well established in the literature.
. . . .
-
In your opinion, was the injury that he described and his years of arduous work in this field the cause or the factor for him developing the condition that you described and the ultimate need for surgery?
A. Yes, it was.
Based on the AMA Guides, Dr. Owen assessed Carson as having a 27% whole person impairment relative to his neck and left shoulder.
Dr. Russell L. Travis performed an independent medical evaluation of Carson on March 11, 2008. Dr. Travis recorded a history that Carson’s difficulty began during the first week in January 2007, when he took hold of a pulley and felt a “pop.” Carson reported that he did not recall if the pop was in his “back, neck or where.” Carson stated his condition began to deteriorate after the incident, and he eventually underwent surgery involving his neck in August 2007.
Following a physical examination and review of medical records, Dr. Travis diagnosed Carson as status post cervical discectomy and fusion at C3-4 with cervical myleopathic findings and significant cervical spinal stenosis. Dr. Travis noted that at the time of his examination, Carson continued to exhibit findings of either residual or progressive myelopathic changes. Carson had a plantar extensor response in his left foot and significant atrophy in the lower right extremity. Carson also exhibited “somewhat of a spastic gait.” Concerning the issue of causation, Dr. Travis concluded:
The question that I am asked by [Aramark} is, ‘Only the issue of causation.’
Let me state first that this is one of the nicest and sincere gentleman that I have ever examined, and he obviously continues to try to work in spite of significant myelopathic problems. However, unfortunately, in reviewing these medical records, I can find no clear evidence that this has a relationship to any injury that may have occurred in early January 2007. There are several factors that mitigate against that. First, on 6/27/2007 he was seen in the general clinic at UK and already noted some numbness in the left first three fingers. At that time he was having trouble buttoning buttons, which is an indication of an early myelopathic problem in the cervical cord. However, this is the first indication of problems that I can find in the medical records. Prior to this 6/27/2007 note, on previous general medical clinic notes there is no mention of any problems relating to January 2007 or to the cervical spine.
By his own statement on 8/27/2007, he notes only that he could recall after lifting and pulling some heavy equipment at work he experienced some shoulder and neck pain.
He notes he did not seek medical attention. Didn’t know he had injured himself. He then notes that it was only during his physical examination of April 2007 that he mentioned to the physician about pain and stiffness and difficulty walking. It is also noted that on 7/9/2007 Daniels, ARNP, recorded as regards his inability to pick up things with his left arm, trouble buttoning his shirt, and beginning to interfere with his work, states, ‘As he thinks back, he says this really started in May. Does not recall any specific job injury or anything happened to him at home that might have precipitated this. He sustained no previous neck or lower back injury.’ On the written note of 8/7/2007, the UK neurosurgical note, it states, ‘Reports four to five months ago developing some intermittent shoulder discomfort. Does a lot of physical and manual labor at work.’
In the evaluation by Dr. Cambi, neurologist at UK, on 7/30/2007, he says, “He states that all his symptoms had started four months and have progressed.” This would appear to exclude January 2007 as an injury and the cause of this problem. Four months prior to July would have been at least April 2007, precluding an injury in January 2007. Also, when evaluated by Dr. Swartz on 8/1/2007, there is no specific mention of any clear date of injury or mode of injury. He simply said, ‘This has been going on for quite sometime, first beginning with the left shoulder. He attributed it to arthritis and continued to work four to five months. It has been progressively severe.’ Notes he’s had erectile dysfunction for the past year.
In reviewing these medical records, unfortunately for Mr. Carson, I cannot within the realm of reasonable medical probability find any clear evidence that this is related to an injury or any injury occurring in January of 2007.
With the above evidence available to him, ALJ Thacker rendered a decision concluding Carson had experienced a work-related cumulative trauma injury producing a cervical disc herniation and spondylotic myelopathy, and that under the circumstances of his medical treatment, he provided due and timely notice to Aramark. In so ruling, ALJ Thacker reasoned as follows:
The Administrative Law Judge finds that the plaintiff sustained a work related injury during the course and within the scope of his employment with the defendant/employer, as the Administrative Law Judge finds the opinion of Dr. Karin Swartz to be the most credible. Under patient history, Dr. Swartz referred to her initial evaluation of 8/2/07 of neck and bilateral neck pain, numbness, tingling, [fasciculation] and weakness in the arm/hands plus ataxia/gait and balance problems. Onset was noted four to five months ago, noticed at work, but no singular ‘accident’ remembered. Dr. Swartz opined the patient’s injury was the cause of his complaints with years of dedicated labor, heavy lifting, very commonly associated with disc disease. Patient noted symptoms at work, exacerbated with work (and yet continued to work, demonstrating a dedicated, motivated individual). She further opined the nature of the patient’s work did aggravate or accelerate the effects of the natural aging process. Dr. Swartz opined that he did not have an active impairment prior to this injury. The plaintiff testified that he had no injuries prior to January 1, 2007, felt an injury on January 1, 2007, he continued to work and his condition continued to worsen. Michael Eugene Hall, the maintenance manager, testified that he does know the plaintiff was moving slow and stiff working and said he was weak. He and his co-workers believed Mr. Carson had had a stroke. Terri Baxter, in Human Resources for Aramark, testified that she knew that Mr. Carson had been hurt but they actually thought it was a stroke. He was exhibiting signs of stroke so she called his supervisor. He was kind of dragging around one side of his body. The plaintiff was sent by the employer to Dr. Hoellein, at U.K. As late as 6/27/07 Dr. Hoellein was diagnosing left arm weak, fingers numb, unchanged since last visit and two months of numbness. On 7/9/07, Judith Daniels of the Department of Medicine noted that it was thought to be left shoulder rotator cuff injury. Dr. Kyle Parrish on 7/13/07, assessed left shoulder pain with rotator cuff tendinosis and left arm pain and weakness of approximately three months. It was not until 7/30/07, that Dr. Franca Cambi recommended an MRI of the C-spine and brain, who uncovered the correct cervical problem. It appears the plaintiff’s condition was misdiagnosed until 7/30/07. Dr. Karin Swartz then, in August of 2007 performed surgery to correct the plaintiff’s work related condition. It is inconceivable to the Administrative Law Judge that the plaintiff would be able to correctly diagnose his condition when it is readily apparent that several trained experienced medical professionals could not nail down the correct diagnosis for several months. The plaintiff is not expected to diagnose his own condition. The Administrative Law Judge further finds that the notice given by the plaintiff was reasonable considering the circumstances of the case. The plaintiff correctly told the employer what he knew as soon as he knew it. The defendant/employer was prejudiced in no way by the action of the plaintiff.
The Administrative Law Judge finds that the plaintiff has a 25% permanent partial impairment as the result of injuries sustained during the course and within the scope of his employment with the defendant/employer, as the Administrative Law Judge finds the opinion of Dr. Karin Swartz to be the most credible. Dr. Swartz opined that, using the AMA Guides, 5th Edition, Chapter 15, Table 15-6, Mr. Carson has a 25% impairment to the whole person and noted motion segment alteration in ACDF and the patient had severe CSM (not simple radiculopathy). Dr. Swartz noted an MRI of 7/30/07 revealing C3-4 HNP and cord compression edema (C-spine); small C6-7 degenerative disk with unremarkable brain MRI. Mr. Carson underwent C3-4 anterior cervical diskectomy and fusion on 8/7/07 with allograft and titanium screw/plating. Dr. Swartz’s diagnosis was C3-4 HNP stenosis with cervical and spondylotic myelopathy.
Pursuant to KRS 342.730(1)(b), a 25% permanent partial impairment is multiplied by a factor of 1.15, resulting in a permanent partial disability of 28.75%.
In response to the above ruling, Aramark filed a petition for reconsideration noting Carson alleged a specific injury occurring on January 1, 2007. Aramark argued ALJ Thacker failed to make sufficient findings concerning “said date as the injury date.” Aramark further contended that “without a specific injury date, we cannot determine how notice of injury was determined to be appropriate, given that this is a specific injury claim, not a cumulative trauma claim.”
ALJ Thacker’s term as an Administrative Law Judge ended prior to a ruling on Aramark’s petition for reconsideration, and, by order issued August 8, 2008, the matter was reassigned to ALJ Justice. By order dated August 20, 2008, in response to Aramark’s petition, ALJ Justice made the following additional fact findings:
This matter is before the Administrative Law Judge on Petition for Reconsideration filed by the Defendant. Defendant requests the Administrative Law Judge to make a specific finding on the date of injury. The Administrative Law Judge has considered the Petition for Reconsideration as well as the response thereto. He notes that while the record is somewhat unclear it does specifically indicate that the Plaintiff testified to feeling something ‘pop’ in his back on January 1, 2007, while lifting motor parts. However, from the medical evidence it is unclear as to whether that specific incident was a singular cause of the Plaintiff’s condition rather than simply the cumulative nature of his usual and customary work wherein he was required to do maintenance work on industrial washers and dyers [sic] lifting more than 100 pounds. As pointed out by the Administrative Law Judge in the Opinion and Award, Dr. Schwartz was relied upon and it is clear that she found the cause of the Plaintiff’s condition to be the cumulative nature of his work manifesting itself sometime in April or May of 2007. The Administrative Law Judge also found that any delay in notice was excusable due to the fact that the Plaintiff’s condition had been misdiagnosed and he was unaware of his correct diagnosis or the work related nature of the diagnosis until diagnosed by Dr. Frank Cambi on July 30 of 2007. Notice was then given in a due and timely fashion. Therefore the Administrative Law Judge finds the Plaintiff began to experience symptoms of a cumulative trauma injury four to five months prior to July of 2007. The statute of limitations or requirement to give notice did not occur until July 30, 2007, with his visit with Dr. Cambi at the University of Kentucky Medical Center. Thereafter notice was given in a due and timely fashion pursuant to Hill v. Sextet Mining Corp., 65 S.W.[3d] 503 (Ky. 200[1]).
This appeal subsequently ensued.
We begin by noting that Dr. Swartz’s Form 107 medical report setting out her opinions regarding the work-related cumulative cause of Carson’s cervical disc herniation and spondylotic myelopathy was filed as evidence before the ALJ without objection by Aramark. In addition, the measured onset and progressive nature of Carson’s condition beginning in April or May 2007 was touched upon to some degree in the testimony of every other major witness. As a consequence, we cannot agree the ALJ erred in finding Carson to be the victim of a gradual injury produced over time due to the heavy disposition of his work.
Carson’s allegation of a specific injury notwithstanding, by not objecting to consideration of Dr. Swartz’s opinion as to causation prior to the decision on the merits, Aramark failed to preserve for appellate review any challenge to the ALJ’s reliance on that evidence. Copar, Inc. v. Rogers, 127 S.W.3d 554 (Ky. 2003). Once Dr. Swartz’s medical report became part of the record, it was not unreasonable for the ALJ to sua sponte make a finding of work-related cumulative trauma as the cause of Carson’s injury. CR 15.02; Kroger Co. v. Jones, 125 S.W.3d 241 (Ky. 2004); Nucor Corp. v. General Electric Co., 812 S.W.2d 136 (Ky. 1991); Collins v. Castleton Farms, Inc., 560 S.W.2d 830 (Ky.App. 1977). Upon making that determination, it was no longer necessary for the ALJ to identify a specific injury. Derr Construction v. Bennett, 873 S.W.2d 824, 826 (Ky. 1994).
We likewise find no merit concerning Aramark’s argument that Carson failed to provide due and timely notice of his work-related injury. KRS 342.185(1) mandates that notice of an accident must be provided to the employer as soon as practicable after the accident. In cumulative trauma claims, the date that triggers the obligation to give notice is the “manifestation of disability” which is the date a worker first learns he has sustained a gradual injury and knows it is due to his work. See Alcan Foil Products v. Huff, 2 S.W.3d 96 (Ky. 1999); Hill v. Sextet Mining Corp., 65 S.W.3d 503 (Ky. 2001). It is well established that a worker is not required to self-diagnosis the cause of a harmful change as being a work-related gradual injury for the purposes of giving notice. American Printing House for the Blind v. Brown, 142 S.W.3d 145, 148 (Ky. 2004).
Contrary to the findings of ALJ Thacker and ALJ Justice, there is no evidence indicating Carson was informed by a physician of the fact that his cervical disc herniation and spondylotic myelopathy were work-related prior to the filing of his workers’ compensation claim in October 2007. By Aramark’s admission, however, Carson provided notice concerning his belief that his condition was caused by work in August 2007. As a matter of law, nothing prohibits a worker who thinks he has sustained work-related gradual injury from reporting it to his employer before the law obligates him to do so, and nothing prevents a worker from reporting an injury he thinks is work-related before a physician confirms the worker’s suspicion. American Printing House for the Blind v. Brown at 149. Consequently, we find no reversible error. Bingham v. Davis, 444 S.W.2d 123 (Ky. 1969); White Const. Co. v. City of Madisonville, 275 Ky. 416, 121 S.W.2d 55 (1938).
Finally, we disagree with Aramark’s contention that the opinions expressed by Dr. Swartz as to causation were substantially inaccurate and largely incomplete, or that her testimony regarding the issue does not rise to the level of substantial evidence. “Substantial evidence” has long been defined as competent evidence that is adequate to support a conclusion. C. Lee Cook Mfg. Co. v. Hodges, 304 Ky. 9, 199 S.W.2d 635 (1947). It is evidence of relevant consequence that, when taken alone or in light of all other evidence, has sufficient probative value to induce conviction in the minds of reasonable people. Commonwealth, Cabinet for Human Resources v. Bridewell, 62 S.W.3d 370, 373 (Ky. 2001); Transportation Cabinet v. Poe, 69 S.W.3d 60 (Ky. 2001).
Dr. Swartz was Carson’s treating neurosurgeon. At the outset of Dr. Swartz’s treatment of Carson, she received both a detailed history of his past work activities and the inception and progression of his symptoms. As noted by the ALJ, Dr. Swartz and Dr. Cambi were the first physicians to accurately diagnose Carson’s condition. Moreover, Dr. Swartz is the only expert witness to directly view inside the effected region of Carson’s cervical spine during surgery. In light of these facts, we believe any contention that Dr. Swartz’s opinion as to causation is incompetent borders on being disingenuous. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).
As fact finder, the ALJ has the sole authority to determine the weight, credibility, substance and inferences to be drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). Where the evidence is conflicting, the ALJ may choose whom and what to believe. Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977). The ALJ may choose parts of the evidence and disbelieve other parts, even when it comes from the same witness or the same party’s total proof. Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).
As set out above, Dr. Swartz plainly stated in her report that, within reasonable medical probability, Carson’s cervical condition was work-related, and that his years of heavy lifting at work was the cause of his complaints. That testimony is more than adequate to support the outcome reached by the ALJ. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Accordingly, the decision rendered June 27, 2008 by Hon. John W. Thacker, Administrative Law Judge, is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER:
HON MARK J HINKLE
PO BOX 951
LEXINGTON KY 40588
COUNSEL FOR RESPONDENT:
HON DONALD R TODD
145 MARKET ST
LEXINGTON KY 40507
ADMINISTRATIVE LAW JUDGE:
HON JOSEPH JUSTICE
107 COAL HOLLOW RD STE 100
1 Myeloma: a primary tumor of the bone marrow formed of any one of the bone marrow cells (as myelocytes or plasma cells) and usually involving several different bones at the same time. See Medline Plus Medical Dictionary at http://medlineplus.gov/.
2 Naprosyn: used for a preparation of naproxen; naproxen: an anti-inflammatory analgesic antipyretic drug C14H14O3 administered especially to treat arthritis often in the form of its sodium salt C14H13NaO3 – see Aleve, Naprosyn. See Medline Plus Medical Dictionary at http://medlineplus.gov/.
3 Activities of daily living.
4 Hemiparesis: muscular weakness or partial paralysis restricted to one side of the body. See Medline Plus Medical Dictionary at http://medlineplus.gov/.
