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June 29, 2018 201683243

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  June 29, 2018

 

 

CLAIM NO. 201683243

 

 

AMERICAN WOODMARK                              PETITIONER

 

 

 

VS.                         

APPEAL FROM HON. CHRIS DAVIS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

SYLVIA DOBBS

AND HON. CHRIS DAVIS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING IN PART

AND REMANDING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  American Woodmark appeals from the January 16, 2018 Opinion, Order and Award on Remand and the February 14, 2018 Order on Reconsideration rendered by Hon. Chris Davis, Administrative Law Judge (“ALJ”).  The ALJ awarded Sylvia Dobbs permanent total disability benefits.  American Woodmark contends the ALJ misconstrued the instructions of this Board on remand, and erred in his consideration of the medical evidence, the extent of Dobbs’ injury, and the presence of any pre-existing active disability.  For the reasons set forth herein, we vacate the opinion and remand this claim to the ALJ for further consideration.

     Dobbs filed a Form 101 alleging injuries to her cervical spine, hand, waist and legs.  She identified two dates of injury: October 5, 2015 and January 6, 2016.  She alleged work-related falls on both dates.  According to the uncontroverted testimony, Dobbs fell on October 5, 2015 when she was stepping onto a platform at work.  She tripped and fell, hitting her head. 

     A few months later, on January 6, 2016, Dobbs reported to work at lunchtime due to a morning doctor’s appointment.  At the time, Dobbs was in the process of training for a promotion to a team leader position.  She reported to the computer room with her training group and noticed it was “warm” in the room.  She testified she began to feel nauseous and “funny” in her stomach.  The group exited the room and walked outside, where the cool air “felt good”.  Next the group went to the dry kiln room, where lumber is stored.  Regarding what occurred in the dry kiln room, Dobbs testified:

It’s where the lumbar 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.

 

     The ALJ first issued an opinion in this claim on February 23, 2017.  He noted the testimony was essentially uncontested regarding the January 6, 2016 fall: Dobbs fainted or otherwise lost consciousness while in the dry kiln room, and fell to the floor.  The ALJ found no evidence of a work-related cause for Dobbs’ fainting spell.  Regarding the October 5, 2015 fall, the ALJ was unpersuaded the accident caused a harmful change.  He dismissed the claim in its entirety: “[T]he claim is dismissed entirely for failure to prove why the fall was work-related.”

     Dobbs appealed.  In an August 25, 2017 Opinion, this Board vacated the ALJ’s opinions and remanded the claim.  First, the Board concluded the ALJ failed to determine whether the October 5, 2015 fall was work-related.  Instead, he concluded only that the fall caused no injury.  The Board’s opinion states, “there is no dispute the October 5, 2015 fall is work-related” and, as such, the evidence “compels” a finding the October 5, 2015 fall is work-related.  We remanded to the ALJ for consideration of the extent of the resulting injury, if any. 

     With respect to the January 6, 2016 fall, the Board opinion explained that the ALJ misconstrued the law because he improperly placed the burden on Dobbs to establish her fall was work-related.  Instead, work place falls are presumed to be work-related, and the burden is placed on the employer to establish a non-work-related reason for the fall.  The Board opinion concluded the ALJ identified no personal or idiopathic cause for the fall.  On remand, the ALJ was instructed:

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. 

 

On remand, the ALJ determined both falls were work-related, and concluded Dobbs is permanently totally disabled.  The primary issue in the current appeal is whether the ALJ properly understood the scope of his review on remand.  For this reason, we carefully analyze the ALJ’s January 16, 2018 opinion. 

     The ALJ first noted the Board directed him to “find the October 5, 2015 fall work-related.”  Regarding the January 6, 2016 fall, the ALJ stated:

     The Board has directed to the undersigned to find whether or not the January 6, 2016 fall is work-related.  In making this decision the Board has concluded that the Defendant carries the burden to affirmatively prove the fall is not work-related and that the Defendant has offered no medical evidence on this point.

 

After summarizing the medical proof, the ALJ concluded the October 5, 2015 fall is work-related.  Turning to the January 6, 2016 fall, the ALJ acknowledged the strong circumstantial evidence indicating Dobbs passed out in the kiln room for reasons personal to her.  But he then stated:

However, this is already the line of reasoning that I followed when originally dismissing the Plaintiff’s case….  As such I do not believe I can rely on the fact that the Plaintiff’s fall was caused by her non-work-related illness. 

 

He further explained his belief that the Board’s opinion precluded any consideration or conclusion that “a non-work-related illness made [Dobbs] queasy, warm and weak”, which caused her to faint.

     The ALJ then considered the extent of Dobbs’ injury.  He determined the October 5, 2015 caused no missed time, unpaid medical bills, occupational disability or impairment rating.  He then concluded the impact from the January 6, 2016 fall caused a disc herniation at C3-4-5.  The ALJ further determined Dobbs is permanently totally disabled as a result of this injury.  He acknowledged and considered the significant medical proof documenting a pre-existing neck condition, for which Dobbs had been actively treating for several years prior to the alleged work injuries.  However, the ALJ concluded this condition existed at C5-6-7.  Because the current injury involved a different level, the ALJ declined to carve out a portion of the award. 

     American Woodmark petitioned for reconsideration, raising the same arguments it now makes on appeal.  The ALJ denied the petition.  Addressing American Woodmark’s allegation the ALJ misconstrued the scope of his review on remand, he stated:

I doubt the Board ever would have sent this claim [back] if the intent was [to] still reach the same substantive result.

 

     American Woodmark has now appealed.  It first argues the ALJ misunderstood the directives contained in the prior opinion of this Board.  With respect to the January 6, 2016 fall, we agree.

     As referenced above, several statements in the January 16, 2018 Opinion evince the ALJ’s belief he was directed to find both of the alleged falls work-related.  With respect to the October 5, 2015 fall, the ALJ is correct.  This Board determined there was no evidence that Dobbs’ October 5, 2015 fall was for a non-work-related reason, and American Woodmark did not dispute the work-relatedness of that fall.  As such, the ALJ correctly understood he was directed to accept the work-relatedness of that accident and determine the extent of the injury, if any. 

     However, we agree the ALJ misconstrued the Board’s prior opinion with respect to the January 6, 2016 fall.  Though the ALJ, at the outset, acknowledges he was directed to determine “whether” that fall was work-related, the remainder of his analysis indicates otherwise.  As noted above, the ALJ stated he was disregarding the circumstantial evidence per the Board’s directives.  He also understood his “reasoning” for finding the fall non-work-related had been rejected, and articulated his belief he was precluded from finding a non-work-related reason for Dobbs’ fainting spell.  He also alludes to an understanding that American Woodmark carried the burden to establish a non-work-related cause for Dobbs’ fainting spell.  Also impacting our decision, in the order on reconsideration, the ALJ stated his doubt that the Board would have sent the claim back with the intent he reach the same result.  When read in its entirety, we are unconvinced the ALJ exercised the full scope of his discretion as fact-finder.    

     The Board’s August 25, 2017 Opinion directed the ALJ to determine whether the January 6, 2016 fall was due to idiopathic or personal reasons.  The Board’s opinion did not require a particular result, nor preclude the ALJ from considering any particular evidence, whether direct or circumstantial.  Because the ALJ’s opinion on remand indicates his belief that the Board directed a finding of work-relatedness, we must remand this claim to again consider the work-relatedness of the January 6, 2016 fall.

     For the sake of clarity, we will again discuss the applicable law governing workplace falls.  Unexpected falls occurring on work premises are presumed to be work-related.  Vacuum Depositing, Inc. v. Dever, 285 S.W.3d 730 (Ky. 2009).  A fall is unexplained when it has a cause “that cannot be determined, [so that] there is a natural inference that the work had something to do with it, in the sense that had he not been at work he probably would not have fallen.” Workman v. Wesley Manor Methodist Home, 462 S.W.2d 989, 900 (Ky. App. 1971).  This inference has been “elevated …to the status of a rebuttable presumption”.  Id. 

     The employer may rebut the presumption with evidence that the fall was idiopathic, or caused by some factor personal to the employee.  Jefferson Co. Public Schools/Jefferson Co. Bd. Of Educ. v. Stephens, 208 S.W.3d 862 (Ky. 2006).  Idiopathic explanations include a disease or internal weakness, personal behavior, fainting, dizziness, heart attack, or seizure.  Indian Leasing Co. v. Turbyfill, 577 S.W.2d 24 (Ky. App. 1979).  See also Dever, 285 S.W.3d at 734 (rejecting argument that claimant’s high heels and general clumsy nature constituted idiopathic explanation of fall, particularly absent evidence claimant was simultaneously suffering physical weakness).  If a fall is accompanied and precipitated by a condition or weakness personal to the claimant, then an idiopathic reason is established.  As such, the injuries caused by the fall are not compensable. 

     However, even if the employer has submitted evidence of an idiopathic explanation for the fall, the injury may nonetheless be compensable under two circumstances.  In the first instance, if the claimant’s occupation placed him in a position of danger increasing the effects of the fall, then the effects of the fall are compensable even if the cause of the fall is idiopathic.  Turbyfill, 577 S.W.2d at 28 (employee was required to work at significant height).  This has been described as the positional risk doctrine, which embodies the rationale that the circumstances of the employment in some way contributed to the injury, along with the personal condition.  Workman, 462 S.W.2d at 901.  In the second instance, even if the fall is proven to have been caused by an idiopathic reason, such as a heart condition, the claimant may nonetheless prevail if he establishes the work caused the underlying condition itself.  See Turbyfill, id. (claimant fell from significant height after suffering myocardial infarction; injury was work-related because strenuous nature of work caused cardiac event and work placed him at height, increasing effect of fall).

     When the employer has presented an idiopathic explanation for a claimant’s fall – such as fainting or other loss of consciousness as in Dobbs’ claim – the rebuttable presumption of work-relatedness is reduced to a permissible inference. Workman, 462 S.W.2d at 901.  The employer must rebut the presumption with substantial evidence that the idiopathic condition caused the fall.  Stephens, 208 S.W.3d at 866-7.  However, once rebutted, the employer does not then carry the burden to establish a non-work-related reason for the underlying personal condition that caused the fall.  This is because the presumption has been effectively overcome and, “the ALJ must weigh the conflicting evidence, including the permissible inference that a workplace fall arises out of the employment.  The burden of persuasion remains on the worker.” Id.  Stated otherwise, once the employer has established an idiopathic or personal condition which caused the fall, the burden returns to the worker to establish that the idiopathic or personal condition itself is work-related or that the work placed her in a position of increased effects from a fall.  As always when considering the work-relatedness of an injury, the ALJ enjoys the discretion to consider not only the direct proof submitted, but to draw reasonable inferences from the evidence and the testimony, including the consideration of circumstantial evidence.  Miller v. East Kentucky Beverage/ Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997). 

     American Woodmark argued Dobbs’ fall was caused by a fainting spell or other loss of consciousness.  On remand, the ALJ is requested to first consider whether substantial evidence supports the assertion she fell because she fainted or lost consciousness.  If there is no substantial evidence to support this assertion, the fall is presumed to be work-related.  If the ALJ determines there is substantial evidence to support the allegation Dobbs fainted and then fell, the rebuttable presumption of work-relatedness is reduced to a permissible inference.  In that situation, the ALJ is free to weigh the conflicting evidence.  The burden remains on Dobbs to establish a work-related cause for her loss of consciousness.  The ALJ must also consider whether evidence has been presented to establish Dobbs’ work environment increased the risk of injuries resulting from a fall.  This burden also remains with Dobbs, as part of her general duty to establish every element of her claim.

     American Woodmark also challenges the finding Dobbs is permanently totally disabled, the ALJ’s reliance on Dr. Stephen Noe’s report, and the ALJ’s refusal to find a pre-existing active condition.  Because the ALJ has been instructed to again consider the work-relatedness of Dobbs’ fall, we must vacate the entire award attributable to the January 6, 2016 fall, including his finding of permanent total disability.  Therefore, these arguments are moot.  We emphasize that the ALJ determined Dobbs’ October 5, 2015 fall is work-related but caused no injury as defined by KRS Chapter 342.  Neither party has appealed that decision.   

     For the foregoing reasons, the January 16, 2018 Opinion, Order and Award on Remand and the February 14, 2018 Order on Reconsideration rendered by Hon. Chris Davis, Administrative Law Judge, are hereby VACATED IN PART and this claim is REMANDED to the Administrative Law Judge for further consideration of the alleged January 6, 2016 work related injury consistent with the view expressed herein. 

                CHAIRMAN, ALVEY, CONCURS.

          MEMBER, STIVERS, CONCURS IN RESULT ONLY.

 

 

 

COUNSEL FOR PETITIONER:

 

HON C PATRICK FULTON

1315 HERR LANE, SUITE 210

LOUISVILLE, KY 40222

 

COUNSEL FOR RESPONDENT:

 

HON PIERRE COOLEN

333 W VINE ST, SUITE 1200

LEXINGTON, KY 40507

 

ADMINISTRATIVE LAW JUDGE:

 

HON CHRIS DAVIS

ADMINISTRATIVE LAW JUDGE

PREVENTION PARK

657 CHAMBERLIN AVENUE

FRANKFORT, KY 40601