May 12, 2017 201600388

Commonwealth of Kentucky

Workers’ Compensation Board







CLAIM NO. 201600388



VELLANCIS C. ROBINSON                          PETITIONER
















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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 


STIVERS, Member. Vellancis Robinson (“Robinson”) appeals from the December 13, 2016, Opinion and Order and the February 16, 2017, Order overruling Robinson’s Petition for Reconsideration of Hon. Robert L. Swisher, Chief Administrative Law Judge (“CALJ Swisher”).[1] In the December 13, 2016, Opinion and Order, CALJ Swisher dismissed Robinson’s claim for alleged work-related injuries to her right elbow, hand, wrist, and fingers due to repetitive job duties using a power drill while in the employ of Ford Motor Company (“Ford”). On appeal, Robinson asserts CALJ Swisher committed reversible error by dismissing her claim.

The Form 101 alleges that “on or about March 1, 2014,” Robinson sustained injuries to her right elbow, hand, wrist, and fingers by engaging in “[r]epetitive job duties using a power drill” while working for Ford. The attached Form 104 indicates Robinson began working for Ford in February 2014.

Several medical records of Dr. Tuna Ozyurekoglu at Kleinert Kutz & Associates Hand Care Center were filed in the record by both parties. Persuasive to CALJ Swisher were three sets of Dr. Ozyurekoglu’s records. One record, dated March 21, 2014, indicates Robinson was seen for bilateral hand and wrist pain with an onset of symptoms two months prior.[2] Under “History of Present Illness” are the following notations:

35 yo female. R handed.


Pain in both hands and wrists.


She fell last year and was treated of [sic] a Rt wrist sprain for 3 months.


Complains also LRF trigger.


Rt 1st DC pain.


Lt TFCC pain.


          Another persuasive record is Dr. Ozyurekoglu’s June 15, 2015, record. In this record, the chief complaint is noted as “T/N Rt hand bil hand pain.” Under “History of Present Illness” is the following:

36 yo F




c/o T/N and pain Rt hand


started march [sic] 2014


symtoms [sic] wake the patient up at night (7/7)


Pain left thumb bace [sic]


bil ring fingers get “lock” [sic]


had recieved [sic] kenalog injections in the past they help for 2 months


sleeping with a brace


works at Ford


use power drills


The final compelling record is the June 18, 2015, medical questionnaire completed by Dr. Ozyurekoglu. In this questionnaire, Dr. Ozyurekoglu described Robinson’s medical condition as follows:

Pt is s/p Kenalog injections to bilateral carpal tunnels & bilateral ring fingers on 6-15/17 due to exacerbation of symptoms. She was placed on one-handed duty only until next ov on 7/1/15. If one handed duty Ø available, pt to remain off work until 7-1-15.


Importantly, Dr. Ozyurekoglu checked “no” by the question, “Is the condition due to the employee’s occupation?”

In the August 12, 2016, Benefit Review Conference  Order and Memorandum, the following contested issues are listed: benefits per KRS 342.730, work-relatedness/causation, notice, average weekly wage, unpaid or contested medical expenses, injury as defined by the ACT, temporary total disability, and statute of limitations.

In the December 13, 2016, Opinion and Order, CALJ Swisher set forth the following findings of fact and conclusions of law:

1. The ALJ finds the facts as stipulated by the parties.

2. Injury as defined by the Act; work-relatedness/causation.

Plaintiff has the burden of proving each of the essential elements of her claim, including that she is entitled to benefits. Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979). As fact finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).

The parties have preserved the inter-related threshold issues of whether plaintiff sustained an injury as defined by the Act as alleged in her application and whether her symptoms and complaints are directly and causally related to that injury. In her application plaintiff contends that she was injured on or about March 1, 2014, performing repetitive job duties using a power drill thereby injuring her right elbow/hand/wrist and fingers. The parties have submitted evidence from evaluating physicians Bilkey and Nicoson which, as summarized above, stands for the proposition that plaintiff’s symptoms and complaints are work-related in terms of arising from her repetitive work duties. In addition, the employer has submitted records from its own in-house medical staff which are largely inconclusive with respect to the issue of work-relatedness/causation other than a note from Dr. Hart on June 18, 2015, that, having reviewed the case and exam, he was changing the case to “personal” unless more information were to come to light about the past cause of the condition.

The most probative and persuasive evidence, however, is contained in the medical records from Kleinert & Kutz reflecting the opinions of plaintiff’s treating orthopedic surgeon, Dr. Tuna. When Dr. Tuna first saw plaintiff on March 21, 2014, she was complaining of bilateral hand and wrist pain with the date of onset of symptoms described as “2 months.” This clearly would pre-date the commencement of plaintiff’s employment with Ford. Moreover, in noting the history of plaintiff’s present illness, Dr. Tuna reported that plaintiff had fallen “last year” and was treated for a right wrist sprain for three months. There is no specific mention of plaintiff’s job duties or that plaintiff became symptomatic with respect to her bilateral hands and wrist as performing specific work activities. Significantly, when plaintiff returned on June 15, 2015, complaining of numbness and tingling in her right hand and bilateral hand pain, she reported that the symptoms started in March of 2014, and there is a notation “works at Ford, use power drills.” Three days later, however, Dr. Tuna completed a questionnaire in which he specifically indicated that plaintiff’s condition is not due to her occupation. None of the medical experts who have provided reports and expressed opinions in this matter have any greater understanding of plaintiff’s condition and the cause thereof than the orthopedic surgeon who has been treating her consistently and continuously from the beginning, Dr. Tuna. Dr. Tuna was well aware of the fact that plaintiff worked at Ford and used power drills, but even with that understanding was of the opinion that plaintiff’s bilateral upper extremity condition was not work-related. Of note, plaintiff is only contending that her right upper extremity conditions are work-related. While plaintiff’s right upper extremity has clearly received the most focal medical treatment including surgery, the fact remains that she has complained of bilateral symptoms which are reflected in Dr. Tuna’s notes without any testimony that her job activities at Ford were particularly stressful with respect to the left hand and wrist. In the view of the undersigned, this bolsters Dr. Tuna’s opinions that plaintiff’s right upper extremity symptoms and complaints for which he has provided treatment are not related to plaintiff’s work activities. The undersigned acknowledges that Drs. Bilkey and Nicoson are of a contrary opinion. It is unknown whether those physicians were aware of plaintiff’s prior right wrist sprain and simply found it not causative or were largely unaware of her prior right wrist injury. Regardless, however, the undersigned finds the opinion of plaintiff’s treating orthopedic surgeon ultimately to be more persuasive than that of the hired evaluators. Accordingly, plaintiff has failed to carry her burden of proving that she sustained a work-related injury to her right upper extremity by virtue of repetitive work activity as alleged, and her claim is, therefore, DISMISSED.


          In her petition for reconsideration, Robinson maintained CALJ Swisher misinterpreted the medical and lay evidence concerning the causation/work-relatedness of the work injury.

          In the February 16, 2017, Order overruling Robinson’s Petition for Reconsideration, CALJ Swisher determined as follows:

This matter is before the undersigned Chief Administrative Law Judge for consideration of plaintiff’s petition for reconsideration of the Opinion and Order of December 13, 2016. Therein, plaintiff contends that the undersigned interpreted medical and lay evidence with respect to the issue of causation/work-relatedness of the subject work injury and misread the reports of plaintiff’s treating physician, Dr. Tuna.

KRS 342.281 provides that an administrative law judge is limited on review on petition for reconsideration to the correction of errors patently appearing upon the face of the award, order or decision. The CALJ may not reweigh the evidence and change findings of facts on petition for reconsideration. Garrett Mining Co. v. Nye, 122 S.W.3d 513 (Ky. 2003). Having reviewed plaintiff’s petition for reconsideration, the undersigned notes that it is simply an impermissible re-argument of the merits of the claim, and the petition for reconsideration is, therefore, OVERRULED.


On appeal, Robinson argues CALJ Swisher erred by failing to award benefits for her alleged right upper extremity injury. We affirm. 

          KRS 342.0011(1) reads, in relevant part, as follows:

“Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. . . . “Injury” when used generally, unless the context indicates otherwise, shall include an occupational disease and damage to a prosthetic appliance, but shall not include a psychological, psychiatric, or stress-related change in the human organism, unless it is a direct result of a physical injury.

As the claimant in a workers’ compensation proceeding, Robinson had the burden of proving each of the essential elements of his cause of action, including “injury” as defined by the Workers’ Compensation Act. KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); and Eck Miller Transportation Corp. v. Wagers, 833 S.W.2d 854, 858 (Ky. App. 1992). Since Robinson was unsuccessful in meeting her burden, the question on appeal is whether the evidence compels a different result. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Compelling evidence is defined as evidence that is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985). 

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof. Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). 

          When reviewing a decision on appeal, the function of the Board is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). 

          Here, CALJ Swisher relied upon the medical records of Dr. Ozyurekoglu recited herein to conclude Robinson failed to meet her burden of proving she sustained a work-related injury to her right upper extremity as defined by the Worker’s Compensation Act in KRS 342.0011(1). As noted by CALJ Swisher, the record includes medical opinions by Drs. Warren Bilkey and Michael Nicoson that run contrary to Dr. Ozyurekoglu’s opinions on causation.  However, CALJ Swisher has the discretion to exclusively rely upon Dr. Ozyurekoglu’s opinions, and the fact Robinson can point to evidence that would have supported a different outcome than that reached by CALJ Swisher is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support CALJ Swisher’s decision to dismiss her claim.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          In the December 13, 2016, Opinion and Order, CALJ Swisher set forth a comprehensive analysis of the issue of “injury” as defined by the Workers’ Compensation Act in KRS 342.0011(1) and the medical evidence upon which he relied in determining Robinson failed to meet her burden of proof. As CALJ Swisher’s dismissal of Robinson’s claim is supported by substantial evidence and the record does not compel a different result, CALJ Swisher’s dismissal of Robinson’s claim may not be disturbed.

          Accordingly, the December 13, 2016, Opinion and Order and the February 16, 2017, Order overruling Robinson’s Petition for Reconsideration are AFFIRMED.

          ALL CONCUR.



401 W MAIN ST STE 1910




401 S FOURTH ST STE 2200







[1] CALJ Swisher was subsequently named Acting Commissioner of the Department of Workers’ Claims.

[2] As noted, Robinson began working for Ford in February 2014.