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May 25, 2018 201790651

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  May 25, 2018

 

 

CLAIM NO. 201790651

 

 

BRADLEY SPALDING                               PETITIONER

 

 

 

VS.        APPEAL FROM HON. MONICA RICE-SMITH,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

ALLEGHENY TECHNOLOGIES, INC. AND

HON. MONICA RICE-SMITH,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING IN PART,

VACATING IN PART & REMANDING

 

                       * * * * * *

 

 

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

 

ALVEY, Chairman.   Bradley Spalding (“Spalding”) appeals from the Opinion and Order rendered January 31, 2018 by Hon. Monica Rice-Smith, Administrative Law Judge (“ALJ”).  The ALJ dismissed his claim for left upper extremity injuries he sustained on March 9, 2017 while working for Allegheny Technologies, Inc. (“ATI”).  Spalding also appeals from the February 22, 2018 order denying his petition for reconsideration.

Spalding argues the ALJ erred in finding he did not sustain his burden of proof in establishing he suffered an injury arising out and in the course of his employment on March 9, 2017.  He also argues the ALJ erred in failing to allow the union arbitration decision pertaining to his termination from ATI, which he argues is res judicata to this proceeding.  Finally, Spalding argues the ALJ erred in failing to sustain his objection to Dr. Michael Stichter’s opinions pursuant to Daubert v. Merrell Dowell Pharmaceuticals, 526 U.S. 579 (1993).  We affirm the ALJ’s determinations regarding the exclusion of the arbitration decision, and the admissibility of Dr. Stichter’s report.  However, we vacate the ALJ’s dismissal of Spalding’s claim, and remand for an analysis based upon the appropriate burden of proof, and the affirmative defenses raised by ATI.

Spalding filed a Form 101 on July 11, 2017, alleging he sustained a left upper extremity injury on March 9, 2017 when a metal bearing fell from his hand and shattered on the floor, causing pieces of metal to strike his left arm, severing an artery.  Spalding was no longer employed by ATI when he filed his claim.  He was working for a welding and fabricating company.  At his hearing, Spalding testified he was working as an electrician at a cooperage.  Spalding’s work history includes employment as a laborer, welder, industrial maintenance worker, and in production for manufacturing facilities.

ATI filed a Form 111 and designated Special Answers including a safety violation by Spalding, and that he was engaged in horseplay at the time of his injury.  ATI filed a Form SVE on August 1, 2017, arguing Spalding was using an unapproved tip on his air wand at the time of the accident, which allowed an excessive amount of air pressure, and he was performing a task outside of his job duties.  It specifically alleged Spalding inappropriately used an air wand and tip at the time of the accident, and engaged in unapproved tasks leading to his injuries.   

Spalding testified by deposition on August 11, 2017, and at the hearing held September 29, 2017.  Spalding was born on October 16, 1977, and is a resident of Campbellsville, Kentucky.  He stated ATI is an automobile parts manufacturing facility, located in Lebanon, Kentucky, which uses large presses to make parts.  He performed industrial maintenance and repair activities at the facility.

Spalding testified he sustained a work-related left upper extremity injury on March 9, 2017 at ATI.  He was cleaning parts with a solution and rags, and then dried them off with an air hose.  As he was drying a ball bearing, it slipped from his hand, struck the floor, came apart, and struck his left arm.   He estimated the ball bearing was approximately four inches in diameter.  At his deposition, he specifically denied he used the air hose to spin or roll the bearing.  He specifically denied he was involved in horseplay at the time of the accident.  He also denied altering the tip of the air wand to one that was not OSHA compliant.  Spalding additionally testified he could not recall receiving safety training regarding air wand tips.

Immediately after the accident, he walked to the first aid room where a tourniquet was applied.  He was taken by ambulance to Springview Hospital in Lebanon, Kentucky.  He was subsequently transferred to the University of Louisville Hospital by air ambulance.  Dr. Elkin Galvis-Leon closed his wound on the date of the accident.  He returned on March 15, 2017 for removal of debris and arterial repair.  Dr. Galvis-Leon kept him off work from March 10, 2017 through April 26, 2017.  He did not return to work for ATI because he was terminated.  He stated he has numbness inside his left forearm, and has difficulty playing musical instruments.  He also testified he has problems with fine manipulation of the left hand.  Although released to return to work with no restrictions, Spalding does not believe he retains the capacity to return to the type of work performed on the date of the injury.

Spalding supported his claim with the filing of the records from the Marion County EMS, Springview Hospital, and University of Louisville Hospital.  Those records establish Spalding sustained a left upper extremity laceration at the ATI facility on March 9, 2017.  The records also establish Dr. Galvis-Leon surgically removed a large foreign body, repaired a left arm brachial nerve injury, and repaired the median nerve in Spalding’s left arm on March 15, 2017.  Dr. Galvis-Leon noted the injury occurred when a large spinning bearing fell on the ground, exploded, and penetrated the left arm. 

Dr. Jules Barefoot evaluated Spalding on August 10, 2017.  Dr. Barefoot diagnosed Spalding as status post left arm surgery for wound exploration, foreign body removal, brachial artery repair, and nerve neurolysis.  He also noted Spalding complained of persistent musculoligamentous nerve dysfunction.  He assessed a 14% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).  Dr. Barefoot additionally stated constrictive clothing, or exposure to certain chemicals may aggravate Spalding’s condition. 

Dr. Rick Lyon evaluated Spalding at ATI’s request on September 21, 2017.  In his October 6, 2017 report, Dr. Lyon diagnosed Spalding with a penetrating injury of the left arm at the workplace.  He also noted Spalding’s brachial artery laceration and musculoligamentous nerve injury.  He assessed a 4% impairment rating pursuant to the AMA Guides.  He found Spalding had reached maximum medical improvement as of July 26, 2017, but he had in fact returned to work in June 2017.  He imposed no restrictions, and found no additional treatment was required for the injury.

ATI filed numerous depositions of its employees as evidence.  Those included Robert Harris (“Harris”), leader of operations; Michael Smith (“Smith”), forge associate; Joe Lee (“Lee”), third shift leader of operations; Ron Green (“Green”), environmental safety and health manager; Richard Osbourn (“Osbourn”), maintenance leader; and Greg Drane (“Drane”), plant manager, who also testified at the hearing. 

Harris testified by deposition on October 13, 2017.  Harris supervises the die set area where workers assemble and disassemble tools needed for presses.  On March 9, 2017, he was in the break room.  He was alerted to the accident, and as a first responder, he went to the first aid room.  He noted a lot of blood on Spalding.  Spalding reported something had fallen on his arm.  A co-worker, Terry Fogle, used his belt as a tourniquet to stop Spalding’s bleeding.  Harris ordered the cleaning of blood in the hallway, and took photographs of the scene of the accident.  He was not Spalding’s supervisor on the date of the accident.  He testified he recalled safety training had been conducted regarding air wands.

Smith testified by deposition on October 13, 2017.  He had previously observed Spalding using an air hose to blow a ball bearing across the floor at work.  He stated Spalding used the air hose to spin ball bearings, and then dropped them on the floor to see how far they would go.  At the time he observed this, several maintenance personnel were involved, but Spalding was the one actively engaged in the process.  He did not observe this activity on the day of the accident, and did not report it previously.

Lee testified by deposition on November 3, 2017.  He was Spalding’s supervisor on the date of the injury.  He stated the use of air wands without regulators was discussed at the October 17, 2016 safety meeting, which Spalding attended, but it was not the primary topic.  Air wands were discussed because the week prior to that meeting the safety director discovered an altered air gun during a walk-through inspection.  He removed the air gun.  Employees were advised that air wands without the appropriate tips were to be taken out of service.

Green testified by deposition on October 13, 2017.  He testified he is primarily based in Portland, Indiana, but also has safety responsibility for the Lebanon, Kentucky facility.  He stated safety training regarding air wands was performed on October 17, 2016 due to the discovery of a non-compliant wand during a walk-through inspection the week prior.  He was not at the Lebanon facility on the day of the accident.  He was notified something had fallen on Spalding’s arm.  The post-accident inspection revealed shrapnel from the ball bearing involved in the incident was discovered in a seventy-foot diameter area.  He inspected the air wand on Spalding’s toolbox.  The air wand had blood on it, and was not fitted with the correct tip.  Upon investigation, it was discovered something exploded at the time of the accident, rather than something falling on Spalding’s arm.  When he gave his statement on March 10, 2017, Spalding stated a ball bearing had exploded. 

Osbourn testified by deposition on October 13, 2017.  He supervises all maintenance personnel at the Lebanon facility.  Spalding was one of the employees he supervised.  He testified the maintenance position did not require lifting in excess of fifty pounds.  Assistive devices are used for weights greater than fifty pounds.  He stated it is not a regular practice to clean ball bearings.  Old bearings are usually replaced with new ones. 

Osbourn inspected the area after the accident.  He noticed small metal fragments around the area.  During the inspection, he saw Spalding’s air gun, but no parts which needed cleaning.  He saw no rags or cleaning equipment in the area.  He stated the diffuser, or tip on the air wand was designed to allow airflow at no greater than 30 PSI.  The tip on the air wand had no diffuser, so the airflow was unregulated.  He stated no wand in the area contained any blood except for the one on Spalding’s toolbox. 

Drane is the plant manager at the ATI facility in Lebanon, Kentucky.  He was at the plant at the time of the accident, but did not see it happen.  He interviewed Spalding the next day.  Spalding advised he was cleaning a bearing, which slipped from his hand, fell to the floor and exploded.  Spalding initially reported something had fallen on his arm.  He stated most bearings used in the plant are sealed.  An investigation revealed Spalding’s toolbox contained no parts for cleaning, nor did it contain packing material for reusing bearings.  The blood spatter extended thirty feet from Spalding’s toolbox.  The air wand on Spalding’s toolbox was not fitted with an approved tip.  The air wand was secured, unaltered, and examined by Dr. Stichter.  He testified that approved tips regulate air to 30 to 35 PSI.  The unregulated tip on the air wand found at Spalding’s toolbox would allow airflow at greater than 100 PSI, which violates OSHA regulations.  He testified he had never seen another tip configured like the one found at Spalding’s toolbox. Previous training had been held regarding the air wand usage. 

Dr. Stichter testified on November 7, 2017.  He is a mechanical engineer who performed an evaluation of the circumstances of the incident.  Dr. Stichter testified this was the first time he had provided an evaluation regarding bearing failure.  However, he holds bachelors, masters and doctoral degrees in mechanical engineering from Drexel University.  He also testified he has worked in mechanical engineering since 2000 and has been involved in the analysis, installation, and cleaning of bearings on numerous occasions.  Dr. Stichter reviewed witness statements, reviewed photographs, took photographs, spoke with Drane, examined metal fragments (including the one recovered from Spalding’s arm), and examined the air wand recovered from Spalding’s toolbox.

Dr. Stichter stated the air wand was equipped with a tip generally used in agricultural applications, which would allow air pressure at rates up to 100 PSI rather than the appropriate 30 PSI.  He stated grooves on the metal parts revealed the bearing was spinning when it impacted with the surface (floor), and broke apart.  Based upon his review, he determined the bearing was spinning at greater than 10,000 RPM at the time it impacted with the floor.  He opined the fact this was an unsealed bearing, the amount of air applied, and manner the air was applied led to the shattering of the bearing.  He stated the bearing was not new, as indicated by Spalding, based upon the grooves present in the metal.  He stated using the appropriate air wand would not have caused the bearing to shatter, and would not have created the speed he determined was present at the time of impact. 

A benefit review conference (“BRC”) was held on November 15, 2017.  The BRC order notes the contested issues included whether Spalding sustained a work-related injury; contested/unpaid medical expenses; current wages; and permanent income benefits pursuant to KRS 342.730 with multipliers.  ATI had previously raised the issue of a safety violation by Spalding through the filing of a Form SVE.  It had also filed a Special Answer asserting Spalding’s injury resulted from horseplay.  Spalding later filed a motion to amend the BRC order to include issues of his entitlement to TTD benefits, the Daubert challenge to Dr. Stichter’s opinions, and whether Dr. Lyon’s opinions conform to the AMA Guides.  The ALJ allowed the additional issues at the Hearing.

Subsequent to the submission of the case, and after the parties had filed briefs, Spalding moved to introduce “newly discovered” evidence in the form of the January 15, 2018 arbitration decision from Spalding’s union grievance.  ATI objected to the introduction of that decision.  In an order issued January 31, 2018, the ALJ determined the arbitration award was not “newly discovered” evidence.  She specifically noted as follows:

The plaintiff had a hearing in his arbitration proceedings on October 26, 2017.  The plaintiff was aware that a decision would be forthcoming.  The plaintiff did not address the issue at either the BRC or the Final Hearing.  Further, the Arbitration Opinion and Award is the decision of a different tribunal with different rules, standards of proof and burdens of proof.  The ALJ is the trier of facts and is not bound by the Arbitration Opinion and Award.

 

The ALJ rendered an Opinion and Order on January 31, 2018.  She determined Spalding bore the burden of proof on all issues.  She initially dealt with Spalding’s Daubert challenge.  She specifically found as follows:

An ALJ like a trial judge function [sic] as both gatekeeper, admitting and excluding evidence as appropriate, and as fact finder. When applied in a jury trial, the Daubert analysis acts as a guide for the judge to make [sic] decision on whether to exclude from the jury’s consideration evidence that is scientifically unreliable. However, when acting a [sic] both gatekeeper and fact finder, the ALJ like the trial judge in a bench trial, has greater discretion and may admit evidence that would be excluded from a jury trial but then disregard that evidence when making a final determination. That discretion is not limitless and an ALJ, like a trial judge, cannot completely abdicated[sic] her responsibility to make a reliability determination. City of Owensboro v. Adams, 136 S.W.3d 446 (KY 2004).

 

Rule 702 provides, if scientific, technical, or other specialized knowledge will assist trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training.

 

The list of factors an ALJ may consider when judging the reliability of an expert opinion includes:

 

1.   Whether the theory or technique can be and had been tested;

 

2.   Whether the theory of technique has been subjected to peer review and publication;

 

3.   The known or potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique’s operation; and

 

4.   Whether the theory or technique has been generally accepted in the particular field.

 

Toyota Motor Corp. v. Greggory,[sic] 136 S.W.3d 35 (KY 2004), as amended June 14, 2004. However, the preceding list is neither exhaustive nor rigid. “A court may consider on[sic] or more or all of the factors mentioned in Daubert, or even other relevant factors, in determining the admissibility of expert testimony. The test of reliability is flexible and the Daubert factors neither necessarily nor exclusively apply to all experts in every case. Johnson v. Commonwealth. [sic]

 

The ALJ finds that the opinion of Dr. Stichter meets the requirements of Daubert and is admissible evidence. Although this was Dr. Stichter’s first case regarding an exploding bearing, his education and training as described in his vitae are sufficient to qualify him as an expert regarding ball bearings and the effects different energy and different concentrations of energy have on ball bearings. Dr. Stichter has an Associate’s degree in automotive restoration, Bachelor’s degree in mechanical engineering, a Masters in mechanical engineering, and a Ph.D. in mechanical engineering. He testified he has worked with the analysis of ball bearings, the choosing of bearings, the installing of bearings, cleaning of bearing, maintaining systems that have bearings, and replacing bearings.

 

Next, Dr. Stichter’s opinion that the injury could not have occurred exactly as reported by Spalding is a theory that can be tested. His opinion is based on the theories of physics. The conclusions in his opinion could be tested through experiments with applying different amounts of air pressure to bearings and recreating the events.  One could even recreate the events as described by Spalding to determine if lightly blowing a bearing with air and dropping it on the ground creates enough energy to cause the bearing to explode with enough kinetic energy released to scatter the particles in a manner that would impact a person. Further, his opinion is based on the calculation for potential Kinetic energy, which is a recognized and accepted mathematical formula.        

 

Despite the accident scene having been altered and the air wand removed from the air hose, Dr. Stichter’s opinion is still reliable. His opinion is based on the force and energy it would take to explode a bearing. The particular air wand used or the specifics of the scene are not of crucial importance to Dr. Stichter’s method of determining whether it was possible for the accident to have occurred as described by Spalding.  

 

Based on the foregoing, the ALJ finds that the expert opinion of Dr. Stichter is reliable pursuant to the requirements of Daubert, therefore is admissible.

 

The ALJ next determined Spalding failed to satisfy his burden of proving he sustained an injury arising out of and in the course of his employment on March 9, 2017.  The ALJ specifically found as follows:

After a careful review of all the testimony, the ALJ finds that Spalding has failed to satisfy his burden of proving he sustained an injury arising out of and in the course of his employment on March 9, 2017. The ALJ finds Spalding’s testimony questionable. Spalding denies having attended any training regarding air wands and the appropriate tips for the air wands on October 17, 2016 despite evidence to the contrary. Lee, Harris, Drane, and Green all testified that air wand safety, specifically approved tips, was one of the topic[sic] during the safety meeting on October 17, 2016. In fact, Green testified the topic was added to the meeting as a result of his safety walk through on October 12, 2016 because he found an air wand with an unapproved tip. Although air wand was not specifically listed on the sign-in sheet or the email regarding the training, the safety walk through that generated the topic was specifically mentioned. Further, Spalding’s signature is on the sign-in sheet documenting his presence at the training.        

 

Spalding also advised he has never used an air wand to spin a bearing as fast as he could nor has he ever heard of shooting a bearing. However, Smith testified that about a year earlier he witnessed Spalding using an air hose to spin a bearing and then drop it on the floor resulting in the bearing flying across the floor. The bearing ricocheted off a metal plate and came back toward Smith’s feet.

 

Spalding testified he was cleaning a bearing at the time of the accident with the air wand, lightly blowing the bearing. This statement is inconsistent with his use of an air wand without an approved OSHA tip. At the hearing, Spalding identified the air wand he was using. He acknowledged it had an inappropriate tip. Both Green and Drane testified that the coupling on that particular air wand would result in the wand feeding out the same PSI produced by the air compressor, which would be about 100 PSI.      

 

Based on the above, the ALJ finds Spalding less than credible. Although Spalding clearly sustained an injury on March 9, 2017, the ALJ is not persuaded Spalding was acting in the course and scope of his employment at the time of the injury. Based on the evidence, the ALJ simply does not believe the events leading to the injury occurred as described by Spalding. The ALJ does not believe it is not plausible that lightly blowing air on a bearing, that then strikes the floor would expel pieces with enough force to impact a individuals[sic] arm. There must be more to the story.

 

The ALJ[sic] opinion of Dr. Stichter is more credible.  Dr. Stichter, based on his analysis, opined the accident and injury could not have occurred as described by Spalding. Specifically lightly blowing on the bearing to clean it would not cause the bearing to spin fast enough to generate enough energy to explode when it hit the ground with enough force to penetrate Spalding[sic] arm. Dr. Stichter explained that for the fragments to have scattered in the way they did and with sufficient force to penetrate Spalding’s arm the air would have to have been applied parallel and the bearing would have had to be spinning at 10,000 RPMs. Dr. Stichter noted that applying air parallel is not consistent with the cleaning of bearings.

 

Spalding filed a petition for reconsideration, arguing, as he does on appeal, the ALJ erred by providing no analysis regarding the burden of proof for the affirmative defense of horseplay, and made no specific finding he was engaged in such activity at the time he was injured.  He additionally argued that if he was utilizing an unapproved safety tip at the time of the accident, his injuries are compensable and any award is only subject to a 15% reduction pursuant to KRS 342.165(1).  Spalding also argued the ALJ erred in failing to exclude Dr. Stichter’s opinions pursuant to Daubert.  Finally, Spalding argued the ALJ erred failing to reopen proof time to allow the introduction of the arbitration decision, and to allow the additional contested issue of res judicata regarding the horseplay issue.

The ALJ denied the petition for reconsideration by order dated February 22, 2018.  She specifically held as follows:

IT IS HEREBY ORDERED the Plaintiff’s Petition for reconsideration is OVERRULED. The ALJ found the plaintiff’s injury was not sustained within the course and scope of his employment. The ALJ analyzed Dr. Michael Strichter’s [sic] opinion pursuant to the Daubert factors and found his opinion admissible. The ALJ was within her authority to refuse to allow submission of additional evidence after the case had been submitted for a decision. Further, the ALJ is not bound by the Arbitration decision. The Plaintiff’s Petition is a re-argument of the merits of the case and points to no patent errors on the face of the Opinion and Award.

 

On appeal, Spalding argues the ALJ erred by finding he did not sustain his burden of proof he sustained an injury arising out and in the course of his employment on March 9, 2017.  He additionally argues the ALJ erred by refusing to allow as evidence the union arbitration decision pertaining to Spalding’s termination from ATI, which he argues is res judicata.  Finally, Spalding argues the ALJ erred in failing to sustain his objection to Dr. Stichter’s opinions pursuant to Daubert.

          We initially determine the ALJ did not err in excluding the introduction of the decision from Spalding’s arbitration stemming from his grievance regarding his termination.  803 KAR 25:010 et. seq. sets forth the procedure for filing and introducing evidence in a claim.  Section 8 of that regulation provides the specific timeframes for the introduction of evidence.  Section 13 provides, that “[u]pon motion with good cause shown, the administrative law judge may order that additional discovery or proof be taken between the BRC and the date of the hearing and may limit the number of witnesses to be presented at the hearing.”  There is no such provision for the introduction of evidence after the hearing. 

          We additionally note Spalding’s assertion the arbitration decision was “newly” discovered.  The arbitration decision was “new”, not “newly” discovered.  It did not exist at the time the case was taken under submission, nor at the time the parties submitted briefs to the ALJ.  KyCR 59.01(g) provides that a new trial may be granted based upon, “Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at trial.”  The moving party must demonstrate he exerted reasonable diligence in the discovery of the evidence, and if timely introduced would have resulted in a different outcome.  Glidewell v. Glidewell, 859 S.W.2d 657 (Ky. App. 1993).

          As noted by the ALJ, in order for evidence to be newly considered or discovered, it must have existed at the time of the Formal Hearing.  Stephens v. Kentucky Utilities Company, 569 S.W.2d 155 (Ky. 1978).  We find instructive the holding in Russellville Warehousing v. Bassham, 237 S.W.3d 197 (Ky. 2007).  There the employer attempted to reopen the case based upon an autopsy report which it asserted was newly discovered evidence and/or mistake.  The Kentucky Supreme Court provided the following analysis regarding reopening in these grounds:

As the ALJ noted, Black's Law Dictionary 579 (7th ed. 1999) explains that “newly discovered evidence" is a legal term of art. It refers to evidence that existed but that had not been discovered and with the exercise of due diligence could not have been discovered at the time a matter was decided. Stephens v. Kentucky Utilities Company, 569 S.W.2d 155 (Ky. 1978), explains further that when the term is used in a statute, it may not be construed to include evidence that came into being after a matter was decided. The decisive effect of evidence does not arise unless it is properly viewed as being “newly discovered."

Id. at 201

 

          We also find instructive the holding in Turner v. Bluegrass Tire Co., 331 S.W.3d 605, 609 (Ky. 2010), where the Kentucky Supreme Court stated as follows:

As used in KRS 342.125(1), "newly-discovered evidence" refers to evidence existing at the time of the initial proceeding that the moving party did not discover until recently and with the exercise of due diligence could not have discovered during the pendency of the initial proceeding.  Moreover, the evidence must not be merely cumulative or impeaching but must be material and, if introduced at reopening, probably result in a different outcome.         

                            

          The ALJ determined the arbitrator’s decision attached to Spalding’s motion is “new”, not “newly discovered”.  Spalding admitted the decision did not exist at the time of the final hearing, and did not come into existence until after the parties had filed their briefs.  As noted by the ALJ, Spalding was aware of the arbitration held on October 26, 2017, more than a month prior to the hearing held in this case.  He was also aware that a decision from that proceeding would be forthcoming, and he did not attempt to delay the hearing held November 29, 2017, nor did he seek additional time to allow for the introduction of the arbitrator’s decision. 

          We also note the ALJ correctly stated, “Further, the Arbitration Opinion and Award is the decision of a different tribunal with different rules, standards of proof and burdens of proof.  The ALJ is the trier of facts and is not bound [sic] Arbitration Opinion and Award.”  The introduction of the arbitration award fell squarely within the discretion of the ALJ regarding controlling the introduction of evidence, and her exclusion of this decision will not be disturbed.  Spalding’s argument regarding res judicata is also misplaced, and not applicable to the ALJ’s decision.

          We next address Spalding’s challenge to Dr. Stichter’s opinions pursuant to Daubert, supra.  The Kentucky Rules of Evidence govern workers’ compensation claims and, therefore, the principles enunciated in Daubert apply to the admission of expert testimony pursuant to KRE 702.  803 KAR 25:010 §14(1).  Thus, the ALJ is required to make a reliability determination, although a specific recitation of the Daubert factors is not required.  City of Owensboro v. Adams, 136 S.W.3d 446, 451 (Ky. 2004). 

          KRE 702 states as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if:

 

(1)    The testimony is based upon sufficient facts or data.

 

(2)    The testimony is the product of reliable principles and methods; and

 

 

(3)    The witness has applied the principles and methods reliably to the facts of the case.

 

 

          In Adams, the Kentucky Supreme Court determined a physician’s expert opinion concerning occupational exposure to toxic gas was sufficiently reliable to meet the admissibility standards of Daubert.  The Court noted the indicia of reliability identified in Daubert: a theory’s general acceptance in the scientific community, whether the theory has been tested, whether it has been subjected to peer review, and the potential rate of error.  Daubert, 509 U.S. at 592-94.  However, the Court emphasized the Daubert analysis is a “flexible” one designed to separate opinions reached by valid scientific methods from unsupported speculation: 

The subject of an expert's testimony must be scientific ... knowledge. The adjective “scientific” implies a ground in the methods and procedures of science. Similarly, the word “knowledge” connotes more than subjective belief or unsupported speculation... Of course, it would be unreasonable to conclude that the subject of scientific testimony must be “known” to a certainty; arguably, there are no certainties in science .... Indeed, scientists do not assert that they know what is immutably “true”—they are committed to searching for new, temporary, theories to explain, as best they can, phenomena ... Science is not an encyclopedic body of knowledge about the universe. Instead it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement ... But, in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation—i.e., “good grounds,” based on what is known.

 

Id. at 589-90.

 

          In this case, Dr. Stichter has been involved in mechanical engineering since 2000.  As noted above, he holds a bachelor’s degree, master’s degree, and doctoral degree in mechanical engineering from Drexel University.  Dr. Stichter explained the process he utilized, and the materials he reviewed in arriving at his determination.  Although Dr. Stichter testified this was the first time he had ever investigated a ball bearing explosion, he outlined his experience as an engineer, and his experience in working with bearings.  The ALJ considered the factors in Dr. Stichter’s analysis and appropriately exercised her discretion in finding his opinion is consistent with the requirements contained in KRE 702.  Therefore, we will not disturb the ALJ’s decision regarding the admissibility and reliance upon Dr. Stichter’s opinions.

          Finally, we acknowledge it is unrefuted Spalding sustained an injury to his left upper extremity on March 9, 2017 at ATI’s plant in Lebanon.  The ALJ determined Spalding bore the burden of proof regarding every element of his claim pursuant to Magic Coal Co. v. Fox, 19 S.W.2d 88 (Ky. 2000).  However, ATI bore the burden of proving its affirmative defenses based upon horseplay, and whether Spalding committed a safety violation pursuant to KRS 342.165(1).  See Teague v. South Central Bell, 585 S.W.2d 425 (Ky. App. 1979).

          In order to sustain that burden, the employer must go forward with substantial evidence sufficient to convince reasonable people. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).  “Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons. Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971); Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  

          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. 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). Although a party may note evidence supporting a different outcome than reached by an ALJ, such proof 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 the decision. Special Fund v. Francis, supra. 

          The function of the Board in reviewing an ALJ’s decision 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). 

          In this instance, the ALJ failed to specifically make a determination regarding whether Spalding’s injury occurred due to either horseplay or resulted from a violation of KRS 342.165(1).  She merely determined Spalding failed to satisfy his burden of proving he sustained an injury arising out of and in the course of his employment.  As noted above, Spalding sustained a left upper extremity injury on March 9, 2017.  He asserted this occurred as he was cleaning a ball bearing in the course and scope of his employment with ATI.  ATI refutes this, and asserted affirmative defenses regarding whether this incident occurred during the course and scope of his work duties.  It alleged he was engaged in horseplay at the time he was hurt, or in the alternative, he violated a safety rule pursuant to KRS 342.165(1).  In either event, the ALJ failed to address these affirmative defenses and make specific findings. 

          We therefore must vacate her determination regarding whether Spalding sustained a work-related left upper extremity injury.  On remand, the ALJ must specifically address the affirmative defenses raised by ATI.  The ALJ may determine Spalding sustained a compensable work-related injury, may apply a reduction in his benefits pursuant to KRS 342.165(1), or may dismiss the claim based upon horseplay as alleged by ATI.  We direct no particular result.  No matter which decision the ALJ reaches, she must set forth the appropriate analysis based upon the applicable burden of proof, and she must explain the basis for her decision.

          Accordingly, the January 31, 2018 Opinion and Order, and the February 22, 2018 order on reconsideration issued by Hon. Monica Rice-Smith, ALJ, are hereby AFFIRMED in part, VACATED in part.  The claim is REMANDED for additional determinations as outlined above.

          STIVERS, MEMBER, CONCURS.

 

          RECHTER, MEMBER, CONCURS IN PART, DISSENTS IN PART AND FILES A SEPARATE OPINION.

RECHTER, Member.   I concur that there is no reversible error in the ALJ’s refusal to admit the arbitration agreement after the claim had been taken under submission.  However, to the extent that the majority opinion implies the ALJ has no authority to admit evidence after the case has been taken under submission, I disagree.  The regulation prohibiting the admission of proof after the final hearing was removed in 1995, and the Kentucky Supreme Court interpreted that regulatory change as an indication “the ALJ may take proof after the final hearing.” Saint Joseph Hospital v. Frye, 415 S.W.3d 632, 634 (Ky. 2013).  The relevant inquiry of a reviewing body is whether the ALJ abused her discretion in doing so.  See T.J. Maxx v. Blagg, 274 S.W.3d 436 (Ky. 2008).  See also Hazard Community College v. Melton, 2018-WL-794735 (Ky. 2018).  I find no such abuse of the ALJ’s discretion in this claim, and would therefore affirm on this issue. 

     Furthermore, the majority’s analysis of whether the arbitration agreement is “newly discovered evidence” muddies the waters.  “Newly discovered evidence” is required to reopen a claim pursuant to KRS 342.125, or request a new trial pursuant to CR 59.01.  The ALJ may exercise her discretion to admit proof after the final hearing, but this opinion should not be read to require that proof be “newly discovered” within the meaning of KRS 342.125 or CR 59.01 in order to be eligible for admission.  See Kuhlman Electric Corp. v. Cunigan, 2014-WL-7238612 (Ky. 2014).  See also Turner v. Bluegrass Tire Co., 331 S.W.3d 605 (Ky. 2010).

     Finally, I disagree with the majority’s analysis of the ALJ’s conclusion that Spalding was acting outside the course and scope of his employment.  The majority has remanded this claim for a specific determination as to whether Spalding was engaged in horseplay, which is unnecessary. 

     Horseplay is simply one method by which an employee can veer from the course and scope of his employment.  See Hall Contracting of Ky., Inc. v. Huff, 481 S.W.3d 811 (Ky. App. 2015) (“Horseplay is defined as an action independent of and unconnected with work.”).  See also Haines v. BellSouth Telecommunications, Inc., 133 S.W.3d 497 (Ky. App. 2004) (It is an act “which is not within the scope of employment”); Kearns v. Brown, 627 S.W.2d 589 (Ky. App. 1982). 

     Here, the ALJ found Spalding’s version of events lacking in credibility.  Relying on Dr. Stichter’s expert opinion and Spalding’s history of “spinning bearings”, the ALJ concluded Spalding was likely spinning a bearing at the time of the injury.  She then reached the obvious and well-supported conclusion that this activity is not only dangerous and prohibited by company policy, but also outside the course and scope of Spalding’s employment.  The fact she did not use the magic word “horseplay” is of no consequence, as it is not necessary to characterize the exact route by which Spalding left the course and scope of his employment.  Her analysis was detailed and thorough, and satisfactorily supports the ultimate legal conclusion that Spalding was acting outside the course and scope of his employment by spinning the bearing.  I would affirm.  

COUNSEL FOR PETITIONER:

 

HON CHRISTOPHER P EVENSEN

6011 BROWNSBORO PARK BLVD, STE A

LOUISVILLE, KY 40207

 

COUNSEL FOR RESPONDENT:

 

HON KRISTIN M DOWNS

771 CORPORATE DR, STE 101

LEXINGTON, KY 40503

 

ADMINISTRATIVE LAW JUDGE:

 

HON MONICA RICE-SMITH

657 CHAMBERLIN AVE

FRANKFORT, KY 40601