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August 25, 2017 201683243

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  August 25, 2017

 

 

CLAIM NO. 201683243

 

 

SYLVIA DOBBS                                   PETITIONER

 

 

 

VS.           APPEAL FROM HON. CHRIS DAVIS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

AMERICAN WOODMARK

and HON. CHRIS DAVIS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING AND REMANDING

                       * * * * * *

 

 

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

 

STIVERS, Member. Sylvia Dobbs (“Dobbs”) seeks review of the February 23, 2017, Opinion and Order, the March 31, 2017, Order ruling on the petitions for reconsideration filed by the parties, and the May 4, 2017, Order ruling on American Woodmark’s (“American”) second petition for reconsideration.  The ALJ dismissed Dobbs’ claim “for failure to prove why the fall was work-related.”

          On appeal, Dobbs challenges the ALJ’s decision asserting the ALJ applied an incorrect burden of proof, disregarded the evidence of record, and did not apply the controlling case law. 

          Dobbs’ Form 101 alleges she was injured as a result of workplace falls on October 5, 2015, and January 6, 2016. Dobbs described the falls as follows: “10-5-15: Claimant tripped on platform that was raised from 3” to 6”. 1-6-16: Claimant passed out from heat.” Concerning the body parts injured, Dobbs stated: “10-5-15: Hand and waist numbness. Herniated discs in cervical 3 and 4. 1-6-16: Neck and legs.”

          Dobbs was deposed on September 7, 2016, and testified she has worked for American since August 2002.  She last worked for American on March 3, 2016.  During her tenure with American, she worked as a team leader in shipping from 2005 to 2015.  Dobbs underwent neck fusion performed by Dr. Magdy El-Kalliny in 2005, and he performed a second neck fusion in 2007.  After a period of convalescence, she returned to work after each surgery.  Dobbs believed the second fusion helped.  In 2010, she began pain management treatment with the clinic of Dr. Ballard Wright.  Part of the treatment consisted of radio frequency ablation procedures in the cervical spine.  Dobbs acknowledged experiencing ongoing neck problems prior to the October 5, 2015, fall. 

          Dobbs provided the following account of the fall occurring on October 5, 2015:     

Q: And then we’ve discussed your prior issues with your neck, so I won’t go into those again. I want to switch gears a little bit and talk to you about what happened on October 5, 2015, so if you could, explain for me and for the Judge who will be reading the transcript what happened on that date.

A: I had walked up to the frame shipping department because the girl was late and the material was backing up, and I had went up there to kind of get things organized, get prepared for when somebody could come up there and start wrapping. So I pushed up a pallet and stepped up on the platform, was going to get the cardboard, and tripped there. I seen what was happening. I reached my right arm out to catch myself on the side of the wrapper and my arm gave out and I landed on my left side, like stretched out.

Q: So you tried to grab what with your right arm?

A: I tried to – I didn’t try to grab, I just tried to brace myself.

Q: Against the ground?

A: No, the wrapper. This wrapper probably sits up probably this high off the platform.

Q: So, what, about a foot high or so?

A: Yeah.

Q: Roughly?

A: Yeah, give or take. Anyway, I tried to catch myself and my arm gave out and I still went – I still went down on my left side, stretched out, and hit my head.

Q: Was your left arm tucked under you or was it stretched out above you?

A: I want to think it was stretched out – I want to think it was stretched out. That’s how I keep remembering it, stretched out.

Q: And do [sic] you hit your head?

A: Yeah. I broke my glasses.

          Since her supervisor was not at work, she told the shipping clerk what had occurred and then went to another department to have her glasses repaired.  She informed her supervisor when he subsequently arrived.  A few days later, she sought medical treatment for numbness in her hands and problems in her neck which developed after the fall. Dobbs did not miss any work and was promoted to “supervisor of the sand lines” during the period she was undergoing treatment and before the fall on January 6, 2016. 

          Dobbs provided the following account of the January 6, 2016, fall:

Q: January 6 of 2016. What happened on that date?

A: I had just come back from Lexington.

Q: Why were you in Lexington?

A: For a follow-up check-up.

Q: So you came from Lexington for a follow-up check-up?

A: Yeah. I knew I was supposed to be on the outside. I was still in training for this new job and I was supposed to be on the outside, so I didn’t stop back by my house to change my clothes. So I got out of the vehicle.

Q: What time of day was this?

A: This is probably maybe 12:00, 1:00, somewhere in there I get back.

Q: And this is in the afternoon, not overnight?

A: Yes.

Q: So 12 p.m., 1 p.m.?

A: Somewhere in there.

Q: Is that when you would normally get to work with the supervisor position?

A: No. No.

Q: So you had a half day you took off?

A: Right.

Q: So you go from your appointment back to work?

A: Right.

Q: And you’re outside. And what happened?

A: And we walk into this computer room, this building that’s on the outside. It’s a room that has all this computer – the computer stuff in it keeps all these dry kilns running that cools them. Anyway, it operates them somehow. Like I said, I was still in training to figure all this stuff out. It was warm in there, and the gentleman that was training me and the other guy – because he was onboarding, too, same as me –

Q: What was the name of the person training you? Do you not remember?

A: I can’t think of his name right now. But Tyrone – I can’t think of what his last name is.

Q: So Tyrone was the other guy that you referred to that was in there?

A: Yes. I can’t think of his name right now, his last name. Okay. Anyway, so we go into this room and I noticed it’s warm in there, and I still have my wool coat on, my sweater and stuff. And the gentleman, Jerry – no, that’s [sic] wrong one. Anyway, he starts talking to us and I just keep getting warmer and then my stomach starts feeling funny.

Q: Do you take your coat off?

A: I finally did take my coat off and I sat down over there on the other side of the desk, and it seemed a little cooler over there in that area. So we get ready to leave and I still have my jacket off. I’m feeling better. We come outside and the cool air felt good. So then we go into one of the dry kilns.

Q: What’s a dry kiln?

A: It’s where the lumber is kept. It’s where they dry it out. But the heat wasn’t on in there; it was cooler in there. And the gentleman started talking to us again, explaining how everything works, and I started feeling kind of queasy in my stomach again and kind of, I guess, maybe light-headed. I don’t know. But anyway, kind of sick to my stomach a little, and next thing I know I was on the ground when I woke up.

Q: So I guess you said it was not as warm where they kept the lumber or in the dry kiln room than it was in the computer room?

A: Right. It was warm in that computer room.

Q: So you lost consciousness and the next thing you remember you’re on the ground, and I guess the people that were with you, Tyrone and then the person training you, were they there?

A: Yes. When I woke up I seen safety coming, and it seems like there was a couple of other people there.

          Dobbs testified she sustained a “big gash” in her back.  She denied having any prior problems with loss of consciousness or seizures.  She believed she lost consciousness because of the heat as she was “perfectly fine” until she walked into the dry kiln.  When she walked into the dry kiln it was too hot and she had difficulty breathing.  After this fall, Dobbs experienced an increase in symptoms in her upper back and neck.  She underwent a third fusion surgery performed by Dr. El-Kalliny on March 8, 2016. 

          The December 21, 2016, deposition of Stephanie Lester (“Lester”), a safety assistant, was introduced by American.  Lester provided the following account as to what she was told occurred on October 5, 2015:

Q: Okay. Now what is your personal account of what occurred on October 5th 2015?

A: Umm that’s the incident with her glasses right?

Q: It is yes.

A: Is that correct, yeah. She was stepping up on, there’s a platform where they wrap the, wrap the material that’s going out, they kind of shrink wrap it to protect it and there’s a small platform that they step up on and her statement was that she did not step high enough so it would have potentially caught like the top of her shoe and she went to kind of brace herself and she ended up kind of hitting her, the side of her glasses on the post there.

Q: Okay. Did you provide her with any medical treatment for that?    

A: No, well I went out there and checked on her and she said that she was okay so other than just the initial contact of you know are you okay, no. We gave her a voucher to get new safety glasses.

Q: Okay did she complain of any injuries or were her glasses just broken?

A: She said she was fine. Yeah her glasses but her glasses were broken.

          After this fall, no first aid treatment was provided.  Dobbs did not seek medical treatment and did not miss work.  Dobbs did not voice any neck, waist, or back complaints. She did not request modified duty but continued to perform regular work.  As to what was reported to her regarding the January 6, 2016, fall, Lester testified as follows:

A: Yeah, okay. Well the report that was given on that date that she was just feeling very hot, kind of clammy, kind of hot feeling and she had a sweater on and I don’t remember the temperature that day but it did not say it was a little warm on the report, but anyway she had taken her sweater off and they thought that once she stepped into the kiln that she was just kind of scratching her back or something but she actually, she was kind of one foot in and one foot out, and she slid kind of down the door facing and then they realized that she was, you know, feeling faint, passed out. No doctor confirmed that she passed out but that was the word that they put on it so I’m not really for sure.

Q: Okay and then as far as your account of what, how that day went, was she taking a half day on that day or do you recall?

A: Did she?

Q: Did she take a half day off?

A: Oh she did after the incident she asked to go home.

Q: Okay.

A: She didn’t ask me, she asked the plant manager and she went home.

Q: Okay following the incident did she, before that, did she walk into the safety office with you?

A: Yes.

Q: Was she provided with any type of treatment?

A: Uh, you know I don’t, I can’t remember. I know we talked about that because her back did have scratches on it, it wasn’t bleeding but kind [sic] looked like little scratch welts that thought the ice might make it sting. But it wasn’t bleeding or anything. I remember looking at it but I don’t, I don’t think we put Neosporin on it we might have.

Q: So if anything Neosporin was applied?

A: Yeah, I don’t, I don’t think so but I don’t remember a hundred percent.

          Significantly, Lester did not dispute Dobbs’ account of the events of October 5, 2015, and January 6, 2016.  Dobbs’ testimony at the December 20, 2016, hearing regarding what occurred on October 5, 2015, and January 6, 2016, is consistent with her deposition testimony.

          The December 14, 2016, Benefit Review Conference Order (“BRC”) reflects the following contested issues: “benefits per KRS 342.730; work-relatedness/causation; notice; unpaid or contested medical expenses; injury as defined by the ACT; credit for short and long term disability; exclusion for pre-existing disability / impairment; and TTD.” Under
“Other” is listed: “Course and scope of unemployment.”

          The December 28, 2016, Hearing Order and the transcript of the December 28, 2016, hearing reflect Dobbs waived all claims except for the cervical spine injury.  In dismissing Dobbs’ claim, the ALJ provided the following:

Course and Scope of Employment; Work-relatedness/causation and Injury as Defined by the Act

     The Plaintiff’s allegation, which is not really in doubt and supported by record, is that she fell at work on January 6, 2016 and hit her head and neck.

     Falls at work are presumed to be work-related unless otherwise proven to not be work-related. Workman v. Wesley Manor Methodist Home, 462 S.W.2d 898 (Ky. App. 1971)

     However if the fall at work is shown to be from some factor not arising from the work, and to which the work did not contribute, the fall is deemed not work-related and any injuries arising from the fall are not work-related. This is the idiopathic fall doctrine. Vacuum Depositing, Inc. v. Dever, 285 S.W.3d 730 (Ky. 2009).

     The testimony in this claim is unrebutted that on the date of the accident the Plaintiff felt nauseous and dizzy. She lost consciousness, entirely, and awoke with a gash on her head.

     Conversely there is no testimony or insinuation as to why her work at Lowe’s, as a return specialist, would have caused or contributed to her fall at work.

     It appears to me that her fall at work was due to an unrelated health issue. I cannot see, and find no evidence to support, a finding that her light headedness was in anyway caused or related to her work. It seems almost without question that the reason she lost consciousness and fell was caused by whatever was making her nauseous and light headed.

     Since she fell due to what was making her light headed, and what was making her light headed was related to her work, her fall at work is not workrelated.

     The level of proof required to overcome the presumption of the workrelatedness of her fall does not require a detailed medical opinion. In this claim Plaintiff has admitted her medical state prior to the fall. There has been no evidence or testimony that what occurred was caused by her work. I understand that there is a presumption but in a claim wherein the fall was clearly caused by her nauseous and light headedness some proof should be presented as to why those condition [sic] were caused or aggravated by her work.

     The October 5, 2015 [sic] seems, to me, to be unpersuasive. I don’t know how she can go from stumbling and bumping her safety glasses to numbness in her waist, or her other symptoms. Her lack of credible, on-going treatment also mitigates against her. Finally I rely on Dr. Burgess’ far more cogent and sensible opinions.

I do not find the Plaintiff overly credible.

This claim is dismissed entirely for failure to prove why the fall was workrelated. [sic]

          Both parties filed petitions for reconsideration.  In its petition, American noted that on page 13 of the opinion, the ALJ incorrectly stated there was no testimony or insinuation as to why Dobbs’ work at Lowes as a return specialist would have caused or contributed to her fall at work.  As this statement was an inadvertent reference to another claim, American requested it be corrected since Dobbs was working as a supervisor.  American also asserted another finding on page 13 contained a typographical error which should be corrected to read Dobbs’ light-headedness was not related to her work.  American also asserted that on page 14 of the opinion, the ALJ mistakenly stated he relied on the opinions of Dr. Ronald Burgess, the hand specialist, when it appeared the ALJ had actually relied upon the opinions of Dr. Russell Travis.  American requested the appropriate correction.  Finally, it requested clarification that Dobbs had failed in her burden of proof as she failed to establish the October 5, 2015, incident caused an arousal or worsening of her cervical condition and that the January 6, 2016, fall is not work-related.

          In her petition for reconsideration, Dobbs took issue with the ALJ’s allegedly erroneous summary on page 13, as the implication was that Dobbs’ loss of consciousness was related to something unrelated to her work when there was no evidence of such.  Dobbs also asserted there was nothing indicating her nausea and loss of consciousness was due to a personal health condition.  Like American, Dobbs took issue with the ALJ’s statement regarding her employment as a return specialist at Lowes.   

          Dobbs also argued that pursuant to Workman v. Wesley manor Methodist Home, 462 S.W.2d 898 (Ky. App. 1971) and Vacuum Depositing, Inc. v. Dever, 285 S.W.3d 730 (Ky. 2009), an unexplained workplace fall is presumed to have arisen out of the employment unless the employer presents substantial evidence to show otherwise.  As American failed in its burden of proof as set forth in Workman and Dever, Dobbs argued the fall is work-related.  She contended  the evidence, “at best,” shows the loss of consciousness occurred as a result of her work-related experience in the dry kiln, and “at worst” the fall is unexplained.  In either case, the January 2016 fall is work-related and compensable. 

          The ALJ’s March 31, 2017, Order ruling on the petitions for reconsideration reads as follows:

As for the remainder of the Petition the ALJ has set forth a sufficient basis to dismiss the Plaintiff's claim. I understand the Plaintiff's testimony that she felt ill and fell immediately upon entering the kiln room. I am not sure this testimony even supports her claim. People work in the kiln room, daily. There is no evidence or testimony that it was unusually hot or humid, for a kiln room, when she fell. She had never passed out in it before. Why suddenly is it the kiln room's fault that she passed out. The remainder of the Petition is OVERRULED.

          This prompted American to file a second petition for reconsideration again requesting a correction of the sentence on page 13 of the opinion which it contended was a typographical error.  American requested the sentence be changed to reflect “lightheadedness was not related to her work.”  American also pointed out the ALJ had not altered his stated reliance upon Dr. Burgess’ opinions as support for his decision.  Therefore, he should state he relied upon the opinions of Dr. Travis.

          The ALJ’s May 4, 2017, Order ruling on the second petition for reconsideration filed by American reads as follows:

The Plaintiff's fall is non-work-related and any reference to it being work-related was a clerical error and is stricken from the record. Dr. Travis has been relied upon.

          On appeal, Dobbs asserts her unrebutted testimony indicates her January 16, 2016, fall was caused by the heat encountered at the work place and there is no evidence in the record to rebut that testimony.  Dobbs maintains Lester’s testimony tends to support her account of the fall.  Dobbs notes Lester provided no testimony rebutting her assertion the fall was a result of the heat encountered at the workplace.  Similarly, Dr. Travis’ 124-page report contains a notation she reported a “bad fall” on January 6, 2016.  However, Dr. Travis did not obtain the details of how the fall happened.  Dobbs maintains Dr. Travis’ report contains no further information regarding the fall and he did not offer an opinion as to the reason Dobbs became queasy and fell.  Therefore, based on the unrebutted evidence and applicable law, Dobbs argues her fall is related to her work or unexplained.  In either case, her fall is compensable. 

          Dobbs also argues the ALJ did not correctly apply the standard set forth in Workman and Dever.  Dobbs asserts the ALJ incorrectly placed the burden of proof on her to prove why the fall was work-related. 

          Finally, Dobbs asserts the ALJ erred in finding the fall was due to an unrelated health condition as the record contains no evidence of such a condition.[1]  Because the ALJ did not apply the correct standard as set forth in Workman and Dever in determining whether Dobbs’ falls were work-related, we vacate and remand.

          In Dever, the Kentucky Supreme Court stated as follows:

KRS 342.0011(1) required the claimant to prove that her injury arose both out of and in the course of her employment. In common parlance, the term “idiopathic” means “arising spontaneously or from an obscure or unknown cause.” [footnote omitted] The term is used differently in the workers' compensation arena. Professor Larson explains that an analysis of whether a workplace injury arises out of the employment begins by considering the three categories of risk: 1.) risks distinctly associated with employment; 2.) risks that are idiopathic or personal to the worker; and 3.) risks that are neutral. [footnote omitted] Larson notes that “unexplained fall cases begin with a completely neutral origin of the mishap, while idiopathic fall cases begin with an origin which is admittedly personal.” [footnote omitted] The latter group involves an idiopathic or personal factor that would have resulted in harm regardless of the employment, such as a pre-existing disease or physical weakness, personal behavior, or a personal mortal enemy. [footnote omitted] Larson notes also that unsuitable clothing may be considered to be an imported or personal risk. [footnote omitted] Kentucky cases addressing unexplained and idiopathic falls involve a back condition, [footnote omitted] heart attack, [footnote omitted] an epileptic seizure, [footnote omitted]  and an allegation of syncope. [footnote omitted]

Kentucky has adopted a presumption that an unexplained workplace fall arises out of the employment unless the employer presents substantial evidence to show otherwise. [footnote omitted] The employer cannot prevail in such a case unless it shows affirmatively that the fall was not work-related. The employer in Workman did so by showing that Ms. Workman's testimony in the workers' compensation claim conflicted with her testimony in an unrelated civil suit that her back had been symptomatic and caused her to fall before the incident at work. The court determined that the employer offered sufficient evidence that the fall was idiopathic to negate the presumption that it was not.

The court explained subsequently in Turbyfill that an idiopathic fall may be compensable if work places the injured worker in a position that increases its dangerous effects. [footnote omitted] Turbyfill's employer negated the Workman presumption by showing that his fall resulted from a non-work-related heart attack. The court found the fall to be compensable, however, because the fact that he was working 12 feet off the ground increased the fall's effects.

To summarize, a work-related fall occurs if the worker slips, trips, or falls due to causes such as a substance or obstacle on the floor of the workplace or an irregularity in the floor. When the cause of a workplace fall is unexplained, the fall is presumed to be work-related under Workman. Unexplained falls divide ultimately into two categories: 1.) those the employer has shown to result from a personal or idiopathic cause but which may be compensable under the positional risk doctrine; and 2.) those that remain unexplained and entitled to a presumption of work-relatedness.

. . .

The ALJ characterized the claimant as “not an entirely credible witness” but determined that a workplace fall occurred although its cause was idiopathic. The fact that the claimant's work did nothing to cause her fall was immaterial under Workman. The record contained no evidence that she suffered from a pre-existing disease or physical weakness that caused her to fall and no evidence that she was engaged in conduct when she fell that would take the injury outside Chapter 342. Nor did the record contain evidence that her footwear was inherently dangerous and inappropriate for work in the employer's offices. Like the Board and the Court of Appeals, we are convinced that evidence the claimant was clumsy and wearing high heels was not sufficient to prove that the cause of her fall was idiopathic. The evidence did not overcome the presumption that the fall was unexplained and, thus, that it was work-related.

Id. at 733-734.

          Since the ALJ first addressed the work-relatedness of the January 6, 2016, fall, we will also.  If Dobbs’ January 6, 2016, fall was due to risks distinctly associated with her work or unexplained it is compensable.  As noted in Dever, “an unexplained workplace fall arises out of the employment unless the employer presents substantial evidence to show otherwise.”  In his February 23, 2017, decision, the ALJ noted the record establishes without question that on January 6, 2016, Dobbs was nauseated and dizzy, lost consciousness, and awoke with a gash on her head.  In the next paragraph, he mistakenly stated there was no testimony or insinuation as to why Dobbs’ work at Lowes would have caused or contributed to her fall at work.  As conceded by the parties, this statement has no basis in fact. The ALJ then concluded the fall at work was due to an unrelated health issue.  However, the ALJ did not identify the unrelated health issue and the testimony establishing this condition.  The ALJ stated he could not find evidence supporting a finding that the lightheadedness in any manner caused or related to her work; therefore, the fall is not work-related.  That statement is an incorrect representation of applicable law.  Workman and Dever mandate that when there is no evidence establishing the fall is due to work but the fall is unexplained, the fall is work-related.  Under Kentucky law there is a presumption that “an unexplained workplace fall arises out of the employment unless the employer presents substantial evidence to show otherwise.”  Dever at 733.  Consequently, American cannot prevail unless it affirmatively shows the fall is not work-related.    

          The ALJ then stated it appeared that Dobbs’ fall, without question, was caused by whatever was making her nauseated and lightheaded.  However, the ALJ did not identify any factors personal to Dobbs which caused her nausea and lightheadedness.  As required by Dever, the employer’s burden is to show the reason Dobbs was nauseated and lightheaded was due to a personal or idiopathic factor.  In other words, it has the burden to show the fall was due to reasons personal to Dobbs.  Here, the ALJ did not identify the idiopathic or personal factor which resulted in the fall.  That is a necessary finding in order for the ALJ to find Dobbs’ fall is not work-related.  Dever is clear that an unexplained workplace fall arises out of the employment and is therefore work-related unless American presents substantial evidence to show otherwise.  Thus, the ALJ erroneously ruled “the claim is dismissed entirely for failure to prove why the fall was work-related.” 

          The ALJ clearly misunderstood the applicable case law since a workplace fall is compensable unless the employer introduces proof the fall resulted from a personal or idiopathic cause.  As noted by Dobbs, Lester’s testimony supports a finding the January 6, 2016, fall is work-related as it was either due to the work conditions or is unexplained.  Lester provided no insight as to why the January 6, 2016, fall is due to reasons personal to Dobbs.  American concedes Dr. Burgess cannot be relied upon for such a finding since he did not offer an opinion on that issue.  Rather, he opined Dobbs did not suffer from carpal tunnel syndrome.  Similarly, Dr. Travis did not offer an opinion as to the cause of Dobbs’ January 6, 2016, fall. 

          As noted by American, the ALJ’s statement that since Dobbs fell due to whatever was making her lightheaded and the cause of her lightheadedness “was related to her work, her fall at work is not work-related” is contradictory.  The ALJ did not address this contradiction in his first order ruling on the petitions for reconsideration.  When American again brought this contradiction to his attention in the second petition for reconsideration, the ALJ merely stated the fall is not work-related and any reference to it being work-related was a clerical error and stricken from the record.  The ALJ did not correct his statement that Dobbs fell due to what was making her lightheaded and the cause of her lightheadedness was related to her work.  He merely reemphasized the last part of the sentence that her fall at work is not work-related.   

          In the last paragraph of his analysis of the work-relatedness of the January 6, 2016, fall, the ALJ noted Dobbs had acknowledged her medical state prior to the fall.  He then found there was no evidence or testimony that what occurred was caused by her work.  Even though Dobbs does not have the burden of demonstrating why the fall occurred, during her September 7, 2016, deposition and at the December 28, 2016, hearing, Dobbs explained how her work caused her to fall.  Dobbs testified she passed out because of the atmosphere to which she was exposed within the dry kiln. She also testified she had no prior problems with loss of consciousness or seizure.  Even if Dobbs had not offered such testimony, if her fall is unexplained, it is compensable.  Consequently, if American failed to establish a reason personal to Dobbs as the basis for her fall, the fall is work-related.  Significantly, the ALJ identified no personal or idiopathic cause as the reason for the January 6, 2016, fall.    

          The cause of a fall and the effects of a fall are two separate issues.  Thus, the ALJ was first required to determine the cause of the fall and if unable to do so then he must find the fall is unexplained and compensable. 

          In his single paragraph analysis of the October 5, 2015, fall, the ALJ’s statement that “the October 5, 2015, seems, to me, to be unpersuasive” is confusing and imparts no information.  The ALJ went on to state he did not know how Dobbs could go from stumbling and bumping her safety glasses to numbness in her waist and other symptoms.  That is not the necessary initial inquiry.  The inquiry should have been whether the October 5, 2015, fall is work-related.  In that regard, there is no dispute the October 5, 2015, fall at work is work-related.  The statement Dobbs’ “lack of credible, ongoing treatment also mitigates against her” also misses the point because the ALJ was first required to determine whether the October 5, 2015, fall is work-related.  If so, the ALJ then determines the effects of the fall and nature and extent of the resulting injury, if any. 

          Finally, concerning the October 5, 2015, fall, in his February 23, 2017, decision the ALJ stated he relied upon Dr. Burgess, who offered no opinion as to the cause of the October 5, 2015, fall.  Although he stated in his order of May 4, 2017, that Dr. Travis was relied upon, we specifically note Dr. Travis did not offer an opinion Dobbs’ fall of October 5, 2015, was not work-related.  Since the record compels a finding the October 5, 2015, fall is work-related, the ALJ erred in not determining the October 5, 2015, fall to be work-related and then determining the nature and extent of the injury, if any, resulting from the fall. 

          On remand, the ALJ shall first determine whether Dobbs’ January 6, 2016, fall was due to idiopathic or personal reasons.  If the ALJ finds American has not offered any evidence in support of a finding that Dobbs’ fall was due to a personal or idiopathic reason, then the ALJ must find the January 6, 2016, fall is work-related.  Finally, as there is no dispute the October 5, 2015, fall is work-related, the ALJ shall find it to be work-related and then determine the extent of the injury, if any, caused by the fall. 

          Accordingly, the February 23, 2017, Opinion and Order finding Dobbs’ falls are not work-related is VACATED.  The March 31, 2017, Order overruling Dobbs’ petition for reconsideration and the May 4, 2017, Order sustaining American’s petition for reconsideration are also VACATED.  This claim is REMANDED to the ALJ for entry of an amended opinion and order in accordance with the views expressed herein.

          ALVEY, CHAIRMAN, CONCURS.

          RECHTER, MEMBER, CONCURS IN RESULT ONLY.

COUNSEL FOR PETITIONER:

HON PIERRE J COOLEN

333 W VINE ST STE 1200

LEXINGTON KY 40507

COUNSEL FOR RESPONDENT:

HON C PATRICK FULTON

1315 HERR LN STE 210

LOUISVILLE KY 40222

ADMINISTRATIVE LAW JUDGE:

HON CHRIS DAVIS

657 CHAMBERLIN AVE

FRANKFORT KY 40601



[1]Although Dobbs also asserts the ALJ erred in failing to consider and apply the positional risk doctrine, it is unnecessary for us to reach that argument.