IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED; SEPTEMBER 27, 2018 NOT TO BE PUBLISHED
U U 2018-SC-000119-WC
BRIAN STROZZO APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2017-CA-001191-WC WORKERS’ COMPENSATION BOARD NO. 16-WC-00540
CESA CONTRACTORS; APPELLEES HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Factual and Procedural Background
Appellant, Brian Strozzo, worked as a laborer/carpenter’s helper for
Appellee, CESA Contractors, Inc. (“CESA”), a general contracting construction
company in Calvert City whose workers perform an assortment of construction
services and maintenance repair work. Strozzo’s duties at CESA consisted of
pouring and finishing concrete utilizing a variety of tools. He worked for CESA
from September 28, 2015 until December 18, 2015, when he was laid off due to
lack of work. Strozzo’s medical concerns first arose in the summer of 2013 while he
was working for American Contractors (“American”) as a laborer, primarily
operating a jackhammer. During the three months he worked for American, he
began to notice a tingling numbness in three of his fingers. Strozzo gave
deposition testimony that, after he was laid off by American, “[his fingers] woke
up . . . They came back to normal . . . [and] [w]orked fine.” (Strozzo Dep. at
29). On August 5, 2014, Strozzo informed his primary physician. Dr. Melissa
Purvis, of a painful sore on the tip of his right index finger, which he believed
was the result of concrete poisoning. His right index finger healed with
antibiotic treatment.
From April 14 to August 4, 2015, Strozzo poured concrete as a laborer
for Morsey Construction (“Morsey”). He primarily used a hand trowel and bull
float, but also used a vibratory tool at times. While working for Morsey, Strozzo
sought treatment on two occasions from Dr. Purvis for painful swelling in his
fingers: once on July 27 and again in early August. Dr. Purvis’ office notes
from July 27 listed Strozzo’s ailment as “concrete poisoning,” along with
diagnosing him with low back pain and abrasions. He was treated with a
steroid pack and Bactrim.
On September 28, Strozzo began working for CESA, using vibratory
tools—such as a 90-pound pneumatic jackhammer and a hammer drill—about
fifty percent of the workday, according to his deposition testimony. (Strozzo
Dep. at 43). During his time working for CESA, Strozzo continued to suffer
pain in his fingers. On December 8, 2015, Strozzo again visited Dr. Purvis; he was still
suffering painful swelling in his fingers, along with cracked skin on his
fingertips that would not heal. His fingertips were red, white and blue, with
yellow, discolored nails that were very tender to the touch. Dr. Purvis
diagnosed him with finger lesions and referred him to Dr. Scott Sanders, a
vascular surgeon, for a circulatory evaluation.
In January of 2016, Dr. Sanders took arteriograms of Strozzo’s hands,
which revealed occlusions in the ulnar arteries of both of his wrists.
Accordingly, Dr. Sanders diagnosed him with “classic hypothenar hammer
syndrome” (“HHS”) and referred Strozzo to Dr. Scott Earner at Kleinert Kutz
Hand Surgery Clinic. Dr. Earner agreed with Dr. Sanders’ diagnosis and
recommended left ulnar artery reconstruction at the wrist. The surgical
procedure was performed on April 6, 2016. Thereafter, on July 14, 2016, ulnar
artery reconstruction surgery was performed on Strozzo’s right wrist and palm.
Eollowing his surgeries. Dr. Earner restricted Strozzo from using
vibratory tools, hammering, or working in cold temperatures, but returned him
to regular duty labor with a nitro paste prescription. On October 4, 2016,
Strozzo returned to Dr. Earner with pain and a non-healing wound. He was
directed to continue using the nitro paste and was released for alternative duty
with no vibratory tool use.
In March of 2016, Strozzo filed a Eorm 101 for permanent occupational
disability benefits, alleging he suffered a cumulative trauma work-related
injury to his hands in the course of his employment with CESA as a result of using a jackhammer and other vibratory tools. On August 15, 2016, CESA
sent Strozzo to Dr. Thomas Gabriel for an independent medical exam. Dr.
Gabriel concurred with the HHS diagnosis. Thereafter, Strozzo’s medical
records from all of the aforementioned physicians were introduced by the
parties.
Dr. Sanders stated in deposition testimony taken as proof in the case:
“Mr. Strozzo has hypothenar hammer syndrome and it’s likely work related,”
which could have resulted from a single traumatic incident, “but mostly it’s
kind of a slow, gradual, repetitive thing.” (Dr. Sanders Dep. at 5, 9). In
pertinent part. Dr. Gabriel noted in his evaluation that, because Strozzo’s
medical history of hand problems dated back to 2013 prior to his employment
with CESA, “I would therefore not find causation with regard to Mr. Strozzo’s
hand symptoms and his employment with CESA Contractors, but rather note
that[,] coincidentally, the symptoms reached a level of disability coincident with
his employment at CESA Contractors.” (Dr. Gabriel Report at 4).
Following the formal hearing held on October 18, 2016, the
Administrative Law Judge (“ALJ”) found in CESA’s favor and dismissed
Strozzo’s claim, finding that his symptoms predated his work for CESA and,
therefore, he had not proven his injury was causally-related to his work for
CESA. Strozzo filed a motion for reconsideration. On February 13, 2017, the
ALJ’s Order on Reconsideration reaffirming dismissal of Strozzo’s case cited
Hale V. CDR Operations, Inc., 474 S.W.3d 129 (Ky. 2015), for the proposition
that “the employer responsible for a cumulative trauma or repetitive motion injury is that employment where the worker’s injury became manifest.” (ALJ’s
Order on Pet. for Reconsideration at 1). The ALJ held that Strozzo’s injury had
become manifest prior to his employment by CESA. Strozzo appealed the ALJ’s
decision.
The Workers’ Compensation Board (“the Board”) upheld the ALJ’s order,
concluding that, although Strozzo presented proof that could support a finding
that his work for CESA may have aggravated his pre-existing condition, the
ALJ’s conclusion that Strozzo had failed to demonstrate a work-related injury
claim against CESA was sufficiently supported by the evidence. Strozzo
appealed to the Kentucky Court of Appeals pursuant to Section 111 of the
Kentucky Constitution and KRS
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IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED; SEPTEMBER 27, 2018 NOT TO BE PUBLISHED
U U 2018-SC-000119-WC
BRIAN STROZZO APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2017-CA-001191-WC WORKERS’ COMPENSATION BOARD NO. 16-WC-00540
CESA CONTRACTORS; APPELLEES HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Factual and Procedural Background
Appellant, Brian Strozzo, worked as a laborer/carpenter’s helper for
Appellee, CESA Contractors, Inc. (“CESA”), a general contracting construction
company in Calvert City whose workers perform an assortment of construction
services and maintenance repair work. Strozzo’s duties at CESA consisted of
pouring and finishing concrete utilizing a variety of tools. He worked for CESA
from September 28, 2015 until December 18, 2015, when he was laid off due to
lack of work. Strozzo’s medical concerns first arose in the summer of 2013 while he
was working for American Contractors (“American”) as a laborer, primarily
operating a jackhammer. During the three months he worked for American, he
began to notice a tingling numbness in three of his fingers. Strozzo gave
deposition testimony that, after he was laid off by American, “[his fingers] woke
up . . . They came back to normal . . . [and] [w]orked fine.” (Strozzo Dep. at
29). On August 5, 2014, Strozzo informed his primary physician. Dr. Melissa
Purvis, of a painful sore on the tip of his right index finger, which he believed
was the result of concrete poisoning. His right index finger healed with
antibiotic treatment.
From April 14 to August 4, 2015, Strozzo poured concrete as a laborer
for Morsey Construction (“Morsey”). He primarily used a hand trowel and bull
float, but also used a vibratory tool at times. While working for Morsey, Strozzo
sought treatment on two occasions from Dr. Purvis for painful swelling in his
fingers: once on July 27 and again in early August. Dr. Purvis’ office notes
from July 27 listed Strozzo’s ailment as “concrete poisoning,” along with
diagnosing him with low back pain and abrasions. He was treated with a
steroid pack and Bactrim.
On September 28, Strozzo began working for CESA, using vibratory
tools—such as a 90-pound pneumatic jackhammer and a hammer drill—about
fifty percent of the workday, according to his deposition testimony. (Strozzo
Dep. at 43). During his time working for CESA, Strozzo continued to suffer
pain in his fingers. On December 8, 2015, Strozzo again visited Dr. Purvis; he was still
suffering painful swelling in his fingers, along with cracked skin on his
fingertips that would not heal. His fingertips were red, white and blue, with
yellow, discolored nails that were very tender to the touch. Dr. Purvis
diagnosed him with finger lesions and referred him to Dr. Scott Sanders, a
vascular surgeon, for a circulatory evaluation.
In January of 2016, Dr. Sanders took arteriograms of Strozzo’s hands,
which revealed occlusions in the ulnar arteries of both of his wrists.
Accordingly, Dr. Sanders diagnosed him with “classic hypothenar hammer
syndrome” (“HHS”) and referred Strozzo to Dr. Scott Earner at Kleinert Kutz
Hand Surgery Clinic. Dr. Earner agreed with Dr. Sanders’ diagnosis and
recommended left ulnar artery reconstruction at the wrist. The surgical
procedure was performed on April 6, 2016. Thereafter, on July 14, 2016, ulnar
artery reconstruction surgery was performed on Strozzo’s right wrist and palm.
Eollowing his surgeries. Dr. Earner restricted Strozzo from using
vibratory tools, hammering, or working in cold temperatures, but returned him
to regular duty labor with a nitro paste prescription. On October 4, 2016,
Strozzo returned to Dr. Earner with pain and a non-healing wound. He was
directed to continue using the nitro paste and was released for alternative duty
with no vibratory tool use.
In March of 2016, Strozzo filed a Eorm 101 for permanent occupational
disability benefits, alleging he suffered a cumulative trauma work-related
injury to his hands in the course of his employment with CESA as a result of using a jackhammer and other vibratory tools. On August 15, 2016, CESA
sent Strozzo to Dr. Thomas Gabriel for an independent medical exam. Dr.
Gabriel concurred with the HHS diagnosis. Thereafter, Strozzo’s medical
records from all of the aforementioned physicians were introduced by the
parties.
Dr. Sanders stated in deposition testimony taken as proof in the case:
“Mr. Strozzo has hypothenar hammer syndrome and it’s likely work related,”
which could have resulted from a single traumatic incident, “but mostly it’s
kind of a slow, gradual, repetitive thing.” (Dr. Sanders Dep. at 5, 9). In
pertinent part. Dr. Gabriel noted in his evaluation that, because Strozzo’s
medical history of hand problems dated back to 2013 prior to his employment
with CESA, “I would therefore not find causation with regard to Mr. Strozzo’s
hand symptoms and his employment with CESA Contractors, but rather note
that[,] coincidentally, the symptoms reached a level of disability coincident with
his employment at CESA Contractors.” (Dr. Gabriel Report at 4).
Following the formal hearing held on October 18, 2016, the
Administrative Law Judge (“ALJ”) found in CESA’s favor and dismissed
Strozzo’s claim, finding that his symptoms predated his work for CESA and,
therefore, he had not proven his injury was causally-related to his work for
CESA. Strozzo filed a motion for reconsideration. On February 13, 2017, the
ALJ’s Order on Reconsideration reaffirming dismissal of Strozzo’s case cited
Hale V. CDR Operations, Inc., 474 S.W.3d 129 (Ky. 2015), for the proposition
that “the employer responsible for a cumulative trauma or repetitive motion injury is that employment where the worker’s injury became manifest.” (ALJ’s
Order on Pet. for Reconsideration at 1). The ALJ held that Strozzo’s injury had
become manifest prior to his employment by CESA. Strozzo appealed the ALJ’s
decision.
The Workers’ Compensation Board (“the Board”) upheld the ALJ’s order,
concluding that, although Strozzo presented proof that could support a finding
that his work for CESA may have aggravated his pre-existing condition, the
ALJ’s conclusion that Strozzo had failed to demonstrate a work-related injury
claim against CESA was sufficiently supported by the evidence. Strozzo
appealed to the Kentucky Court of Appeals pursuant to Section 111 of the
Kentucky Constitution and KRS 342.290, which affirmed the Board’s decision.
Analysis
Appellate review of Board rulings strictly concerns whether the Board’s
final order was: (1) based on a correct interpretation of the law, and (2)
reasonable under the evidence. Fortney v. Airtran Airways, Inc., 319 S.W.3d
325, 328 (Ky. 2010). Appellate courts will only disturb a Board decision that is
reasonable under the evidence “to address new or novel questions of statutory
construction, or to reconsider precedent when such appears necessary, or to
review a question of constitutional magnitude.” W. Baptist Hosp. v. Kelly, 827
S.W.2d 685, 688 (Ky. 1992).
“The ALJ as fact finder has the sole authority to judge the weight,
credibility, substance, and inferences to be drawn from the evidence.” LKLP CAC Inc. V. Fleming, 520 S.W.Sd 382, 386 (Ky. 2017) (citing Paramount Foods,
Inc. V. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985)).
“When the decision of the fact-finder favors the person with the burden
of proof, his only burden on appeal is to show that there was some evidence of
substance to support the finding, meaning evidence which would permit a fact
finder to reasonably find as it did.” Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986). In order to reverse the ALJ’s finding, “the claimant, who has
the burden of proof, must present evidence that is so overwhelming as to
compel a finding in his favor.” Howard D. Sturgill & Sons v. Fairchild, 647
S.W.2d 796, 798 (Ky. 1983) (citing Old Republic Ins. Co. v. McCarty, 599 S.W.2d
163 (Ky. 1980)).
A compensable “injury” under the Workers’ Compensation Act “means
any work-related traumatic event or series of traumatic events, including
cumulative trauma, arising out of and in the course of employment. . . .” KRS
342.0011(1). As stated previously, Strozzo’s hand problems manifested in the
summer of 2013 and persisted throughout his work histoiy until culminating
in the need for left and right ulnar artery reconstruction surgeries in the
summer of 2016. Notably, the medical experts provided that HHS is commonly
caused by repetitive use of vibratory tools and sudden-impact tools. Strozzo
was a laborer who used his hands for rough manual labor during his entire
career and was a jackhammer operator in 2013 when his symptoms first arose.
Therefore, sufficient evidence exists that Strozzo’s employment with
CESA was not “where, [his] injury became manifest.” It is difficult to determine from the record under whose employment Strozzo’s injuries first became
manifest. But it was not CESA.
Although “[i]t is well-established that the work-related arousal of a pre
existing dormant condition into disabling reality is compensable,” Finley v. DBM
Techs., 217 S.W.3d 261, 265 (Ky. App. 2007) (citing McNutt Constr./First Gen.
Serus. V. Scott, 40 S.W.Sd 854 (Ky. 2001)) (emphasis added), Strozzo’s medical
condition was apparent prior to his work for CESA. Even in such cases, ALJs
have only found the employer responsible for medical treatment relating to the
previously-dormant condition, not permanent partial or temporary total
disability benefits. See, e.g., Landmark Media Publ’g, LLC v. Mark Branham,
No. 2017-SC-000209-WC, 2018 WL 896898, at *2 (Ky. Feb. 15, 2018).
Here, substantial evidence supports the ALJ’s finding that Strozzo’s
injuries were not a work-related occurrence “arising out of and in the course of
[his] employment” with CESA. KRS 342.0011(1). Therefore, the reviewing
court was bound by the record. Paramount Foods, Inc., 695 S.W.2d at 419.
Accordingly, the Court of Appeals properly deferred to the ALJ’s findings,
authorized by the Board’s final order, which were based upon evidence of
substance. Finding no legal error, the Court of Appeals appropriately affirmed
the Board’s final order.
Conclusion
For the reasons stated herein, we hereby affirm the decision of the Court
of Appeals.
All sitting. All concur.
7 COUNSEL FOR APPELLANT:
Craig Housman HOUSMAN 86 ASSOCIATES
COUNSEL FOR APPELLEE, CESA CONTRACTORS:
Samuel J. Bach BACH 86 ARMSTRONG, LLP