IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: JANUARY 18, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0164-WC
JENNIFER WHISMAN APPELLANT
ON APPEAL FROM COURT OF APPEALS V. NO. 2022-CA-1318 WORKERS’ COMPENSATION NO. WC-21-00540
TOYOTA MOTOR MANUFACTURING APPELLEES KENTUCKY, INC.; GREG W. HARVEY, ADMINSTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Jennifer Whisman appeals from the opinion of the Kentucky Court of
Appeals 1 which affirmed the Workers’ Compensation Board (Board) opinion
affirming the determination of the Administrative Law Judge (ALJ). The ALJ
had determined that Whisman had failed to offer proof sufficient to show that
her chronic sinusitis was the result of occupational exposer to Pseudomonas 2
1 Whisman v. Toyota Motor Manufacturing Kentucky, Inc., 2022-CA-1318-WC,
2023 WL 2437499 (Ky. App. Mar. 10, 2023) (unpublished). 2 Pseudomonas is a type of bacteria (germ) that is commonly found in the
environment. It is a type of gram-negative bacteria and thrives in moist and warm environments such as commonly found in both soil and water. These bacteria can cause infections including chronic sinusitis. See Centers for Disease Control and Prevention, National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Pseudomonas aeruginosa in Healthcare Settings (Nov. 13, 2019), http://www.cdc.gov/ organisms/pseudomonas.html. bacteria as an employee at the Toyota Motor Manufacturing, Kentucky, Inc.
(Toyota) plant in Georgetown, Kentucky.
Having concluded that neither the ALJ nor the Board overlooked or
misconstrued controlling statutes or caselaw, or flagrantly erred in assessing
the evidence so as to cause gross injustice, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Whisman began working at Toyota’s Georgetown plant in 2011 and
testified that her sinus symptoms started in 2013, when she began
experiencing dizziness.
Whisman began seeing Dr. Ronald George Shashy in July 2014. Dr.
Shashy’s records reflected Whisman initially reporting problems with migraine
headaches, dizziness, fatigue, and facial swelling. Whisman reported she had
weight gain, vision loss, eye pain, ear drainage, and hearing loss. Dr. Shashy
diagnosed her with chronic sinusitis, mucus retention, chronic rhinitis, and
remnants of migraine, not otherwise specified. Dr. Shashy recommended nasal
irrigation with normal saline, endoscopic sinus surgery, and possibly a
septoplasty. Dr. Shashy proceeded with the septoplasty surgery that August
which included a partial resection of the inferior turbinate on both sides, a
total ethmoidectomy on both sides, a middle meatal antrostomy on both sides,
and a sphenoidotomy on both sides. In addition to his previous diagnoses, he
found Whisman to have a deviated septum. He saw Whisman again on August
26, 2014, when she presented for sinus debridement and noted Whisman had
tobacco use disorder and migraines. Dr. Shashy next saw Whisman on
2 September 9, 2014, when she continued to complain of dizziness and allergic
rhinitis.
Dr. Shashy’s notes reported that Whisman reported a history of exposure
to mold in her home but Whisman herself denied remembering making that
statement and denied ever having her prior residence inspected for mold. In the
later Workers’ Compensation hearing, Whisman filed a report from Ray Fouser,
a professional engineer, who performed testing at her then-current residence
on October 27, 2020. The report indicated a sample from the master bathroom
sink in her house tested negative for Pseudomonas.
On October 24, 2018, Whisman was seen by Dr. Leslieann Asbury of
Ear, Nose, and Throat Specialists of Central Kentucky. Dr. Asbury noted
Whisman’s history of sinus problems and Dr. Shashy’s prior surgery. At that
time, Whisman’s symptoms included excessive dizziness, ear pain and fullness,
pain and pressure in the right cheek area, and dental pain. Whisman reported
her symptoms never resolved after the previous surgery and had recently
increased after moving moldy furniture. Dr. Asbury diagnosed Whisman with
seasonal allergic rhinitis due to fungal spores, a history of sinus surgery, and
dizziness.
Beginning in December 2019, Whisman began missing “a great deal of
work” due to recurring sinus infections. She thereafter began treating with Dr.
Michael Cecil, a board-certified ENT, in February 2020. Testing performed by
Dr. Cecil showed the presence of Pseudomonas for which he prescribed
numerous courses of antibiotics. Dr. Cecil performed an endoscopic revision
3 surgery on Whisman’s sinuses in March 2020, in order to provide a more open
ventilation path. Dr. Cecil subsequently put Whisman under anesthesia four
more times to clean and irrigate her sinuses. In a January 2021 office note, Dr.
Cecil diagnosed Whisman with chronic sinusitis and stated that she remained
symptomatic despite normal endoscopy results. He also noted Whisman
smoked a half pack of cigarettes per day.
In Whisman’s Workers’ Compensation claim, Dr. Cecil testified by
deposition and noted that a CT-scan revealed evidence of chronic sinus
infection and, during his course of treatment, Pseudomonas has always been
present in Whisman’s cultures. Dr. Cecil testified that Whisman was
theoretically exposed to Pseudomonas at Toyota, although he did not
specifically research that issue, instead relying upon Whisman’s own narrative.
Dr. Cecil further stated Whisman has reached maximum medical improvement
(MMI) and recommended she use saline rinses and nasal steroid sprays. He
testified that it was reasonable for Whisman to return to work and when he last
saw her on October 25, 2021, her sinuses were normal, and her primary
complaints involved unrelated shortness of breath.
Most importantly, Dr. Cecil testified that he was unsure whether
Pseudomonas was merely present in her sinuses or was what was causing
Whisman’s symptoms, noting she had sinus problems for a long time.
In his deposition, Dr. Cecil was also questioned regarding an
Occupational Safety and Health Administration (OSHA) report that was
obtained by Whisman. At some point, Whisman contacted OSHA which had
4 tested certain machines at Toyota and found Pseudomonas present in a coolant
used in the manufacturing process. As both the Board and Court of Appeals
previously noted, the depositions of both Dr. Cecil and Dr. Owen referred to an
OSHA report which was not attached to their deposition transcripts. Other
than those references, there is no indication in the record that such a report
was ever filed into evidence. Therefore, we cannot independently examine it.
Dr. Cecil testified that although he reviewed the OSHA report and it
identified Pseudomonas in the plant, the report did not indicate workers’ levels
of exposure and he did not have the experience to know what that exposure
would mean. He likewise testified he had no idea whether Pseudomonas in
coolant within a machine would constitute a sufficient exposure to cause
Whisman’s condition(s).
When asked if he would say it was probable that Whisman’s work was
causing the growth of Pseudomonas in her nasal cavities, Dr. Cecil testified:
I think that that’s—I mean it’s—you know, I’m not an occupational hazard physician. But if there’s Pseudomonas in the potential air and she’s getting Pseudomonas in her respiratory system, you know, just putting two and two together it makes sense that that could be where this is coming from.
Dr. Cecil testified that his statement regarding how Whisman contracted
Pseudomonas was expressed within a reasonable degree of medical probability.
However, later in his deposition, Dr. Cecil stated, “Maybe probable is not the
right word not having known this, but I’m kind of putting two and two together
so I think it’s potentially a cause.” He also stated, “So, you know, I think it’s
probably more reasonable to put ‘possible.’ I don’t know that I’m the person to
5 be able to determine if it directly came from the coolant or where it came from.”
When asked if exposure to the coolant at Toyota caused Whisman’s sinus
problems, Dr. Cecil testified:
I definitely—well—I mean I don’t know about independently. I mean certainly I’ve operated on her before there’s been purulence in her sinus cavities that grew Pseudomonas so that was certainly a pathogenic organism that was in her sinuses and was causing it. I don’t know if that’s the only cause of it, but certainly that was part of it.
In May 2020, when workers returned to Toyota following the Covid
shutdown at the plant, it was believed that Whisman’s Pseudomonas infection
had been cleared and she also returned to work. However, her infection
returned in June and again in September 2020. Whisman submitted an
application for short-term disability in July 2020; Dr. Cecil completed a portion
of that application noting Whisman had chronic sinusitis and that she was
unable to work due to the, then, national Covid crisis. That application did not
reflect Whisman’s condition being work-related.
Whisman’s last day at work for Toyota was September 11, 2020, when
she went on medical leave and thereafter began receiving long-term disability
benefits through her employment with Toyota. Whisman was still receiving
long-term disability benefits as of the filing of this appeal. Cultures performed
by Dr. Cecil in both April and June 2021, again showed growths of
Pseudomonas.
Whisman filed her Application for Resolution of an Occupational Disease
Claim (Form 102) with the Kentucky Department of Workers’ Claims on April 1,
2021. She claimed her condition was caused by exposure to vapors and mists 6 at Toyota. She does not believe she can return to work at Toyota due to her
dizziness, blurred vision, breathing problems, and swelling. Whisman also has
varying symptoms including neck swelling, throat clearing, drainage, nose
blowing, swollen lymph nodes/glands, and facial pain.
Pursuant to Kentucky Revised Statutes (KRS) 342.315, Dr. Sanford
Archer, board-certified ENT with the University of Kentucky, evaluated
Whisman on June 22, 2021. Dr, Archer noted that Whisman complained of
migraine headaches, dizziness, atypical facial pain, and sinusitis beginning in
2013. In her evaluation, Whisman attributed all her symptoms to the work
environment. Dr. Archer diagnosed Whisman with atypical facial pain,
migraine headaches, no acute or chronic sinus disease, and non-otologic
dizziness. He determined Whisman was not entitled to an impairment rating
under the American Medical Association’s Guides to Evaluation of Permanent
Impairment, 5th Edition (AMA Guides) attributable to her complaints allegedly
caused by her work environment. Dr. Archer found neither Whisman’s
condition, nor her complaints, were caused by her work environment and
likewise determined she had no pulmonary impairment caused by the work
environment and she had the physical capacity to return to her previous work,
recommending no restrictions. Dr. Archer also noted Whisman had an eleven
pack-year 3 smoking history and continued to smoke.
3 A pack-year is smoking an average of one pack of cigarettes per day for one
year. For example, a person could have a 10 pack-year history by smoking one pack a day for 10 years, two packs a day for 5 years, or a half-pack a day for 20 years. See 7 Dr. Archer testified by deposition and stated that while Dr. Cecil was
respected in the medical community, he did not agree with everything Dr. Cecil
described. Dr. Archer agreed with Dr. Cecil that sinusitis can be caused by a
number of different factors and that Pseudomonas is a common bacteria found
in many different places in our everyday environments. When Dr. Archer
examined Whisman, she had no abnormal findings so there was no basis to
assess an impairment rating pursuant to the AMA Guides. He noted no
pathological findings were present except for those consistent with her previous
surgeries, meaning some bone structure had been removed. Dr. Archer did not
believe Whisman’s complaints were caused by chronic sinusitis, specifically
stating:
Chronic sinusitis is classically defined as chronic infection of the sinuses that have lasted three months or longer, persisted despite medical or surgical management. It can be caused by any number of things that can block the sinuses, including allergies, mass lesions, like polyps, anatomic variance like septal deviations and abnormal turbinate structures. It can be caused by bacteria, fungus. Viral inflammation can set it up as well. And when the sinuses get blocked, they can potentially stay blocked and give that chronic nature to an acute sinus infection.
Dr. Archer additionally testified:
[Whisman’s] symptoms were pretty much out of proportion to what her findings were. She had on my examination and on Dr. Saini’s previous examination two years prior complaints of atypical facial pain and neither his examination nor my examination identified any pathology on her in her sinuses. And because she’s had extensive sinus surgery, we actually have the opportunity of placing scopes into the sinus, not just into the nose, to examine those areas and the scans that were referred to at the time did not
Division of Cancer Prevention and Control, Centers for Disease Control and Prevention, Who Should be Screened for Lung Cancer (July 31, 2023), https://www.cdc.gov/cancer/lung/basic_info/screening.htm. 8 show any evidence of acute or chronic sinusitis either. And so, the atypical facial pain can come from many different regions, and we recommended that she see basically a orofacial pain clinic here for further evaluation of her complaints.
At the behest of her attorney, Whisman was evaluated by Dr. James
Owen in December 2021. Dr. Owen testified that Whisman had suffered from
“recalcitrant Pseudomonas” since 2018, and her condition had worsened.
Importantly, Dr. Owen testified that her condition was caused by
workplace exposure to engine coolant spray in her workplace and diagnosed
chronic sinusitis exacerbated by her returns to work. He found she had
reached MMI and assessed a 6% impairment rating based upon the AMA
Guides. Dr. Owen also testified that Whisman had no underlying conditions
prior to 2014, and that none of her impairment rating was due to pre-existing
active conditions. Finally, Dr. Owen stated Whisman did not have the physical
capacity to return to the type of work performed at the time of her injury.
In addition to noting a lack of a proven nexus between any Pseudomonas
at the plant and Whisman’s own injuries, Toyota noted that Whisman’s
sinusitis began no later than July 2014, but she did not begin working in the
area of the T-2 block line (also referred to as the “machine power train line”)
until 2017 and, even then, no Pseudomonas was found in any coolant there
until 2020. Thusly, Toyota argued that there was no evidence that Whisman
had been exposed to Pseudomonas at work in 2014, when her condition began,
and there was no evidence Pseudomonas was in any coolant in 2017, when
Whisman began working in the area, or at any point prior to 2020. Finally,
9 there was no proof offered that any workers were actually exposed to the
Pseudomonus found in the coolant system.
Following a final hearing and post-hearing briefs, the ALJ rendered his
opinion on May 31, 2020, dismissing Whisman’s claim on the basis that she
had not submitted sufficient proof on the element of causation. Specifically, the
ALJ concluded:
There is no doubt Whisman has chronic sinusitis. The evidence on the cause of that condition is murky. It may be that Whisman was exposed to Pseudomonas at work but the exposure itself and any link between it and the onset of her symptoms is questionable. Dr. Archer’s opinion on the question of causation is what is most important to the ALJ. He did not find a link between Whisman’s alleged work-related exposure and her chronic sinusitis. In truth, the ALJ also interprets Dr. Cecil’s testimony as being less than clear on the question of causation. He did not have any expertise as to the level of exposure or what would be required to cause the onset of chronic sinusitis. In light of the foregoing, the ALJ finds Whisman has failed to persuade the ALJ her chronic sinusitis is the result of occupational exposure to Pseudomonas. For that reason, her claim is dismissed.
Whisman petitioned the Board to reverse the ALJ’s dismissal, arguing
that the ALJ should not have afforded the University Evaluator, Dr. Archer,
presumptive weight or relied on his opinions because they were based on an
allegedly inaccurate or largely incomplete history, and therefore should have
been discounted. The Board affirmed.
Whisman next appealed to the Court of Appeals arguing that the ALJ
erred by relying on medical opinions which were based upon a corrupt history.
Specifically, Whisman contended that Dr. Archer did not review the entirety of
the medical record, was not provided with the OSHA report, and therefore
could not competently provide a determination. Whisman argued that Dr. 10 Archer’s conclusions were so flawed and corrupt they could not constitute
substantial evidence and therefore could not be relied upon and should have
been excluded based upon the holding in Cepero v. Fabricated Metals
Corporation, 132 S.W.3d 839 (Ky. 2014).
The Court of Appeals affirmed and Whisman now seeks review by this
Court arguing that she met her burden of proving that Pseudomonas “could
have” independently caused her injuries and the ALJ improperly relied upon
Dr. Archer’s opinions.
II. LEGAL ANALYSIS
Pursuant to KRS 342.285, the ALJ is the sole finder of fact in workers’
compensation claims. As correctly noted by Whisman, this Court has read this
authority to mean the ALJ has the sole discretion to determine the quality,
character, weight, credibility and substance of the evidence and to draw
reasonable inferences from that evidence. Paramount Foods, Inc. v. Burkhardt,
695 S.W.2d 418, 419 (Ky. 1985). Furthermore, the ALJ has sole discretion to
decide whom and what to believe and may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of whether it comes from
the same witness or the same adversary party's total proof. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
On review, neither the Board nor an appellate court can substitute its
judgment for that of the ALJ as to the weight of evidence on questions of fact.
Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App.
1982).
11 When, as here, the ALJ finds against the party having the burden of
proof, the appellant must “show that the ALJ misapplied the law or that the
evidence in [his] favor was so overwhelming that it compelled a favorable
finding.” Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005). Our role is “to
correct the Board only where . . . the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice.” ViWin Tech Windows & Doors,
Inc. v. Ivey, 621 S.W.3d 153, 157 (Ky. 2021) (emphasis added) (quoting W.
Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).
A. Did Whisman meet her burden of proof?
KRS 342.0011(3) states:
An occupational disease as defined in this chapter shall be deemed to arise out of the employment if there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident to the work as a result of the exposure occasioned by the nature of the employment and which can be fairly traced to the employment as the proximate cause.
Whisman begins her argument by noting that KRS 342.0011(4) defines
an “injurious exposure” as “that exposure to occupational hazard which would,
independently of any other cause whatsoever, produce or cause the disease for
which the claim is made[.]” Whisman goes on to argue that she only needed to
prove that exposure could have independently caused her disease, citing to
Childers v. Hackney’s Creek Coal Co., 337 S.W.2d 680, 683 (Ky. 1960), and
Letcher County Board of Education v. Hall, 576 S.W.3d 123 (Ky. 2019). Even
12 under the standard as it is stated in Childers and Hall, this Court cannot be
convinced that the ALJ was wrong in his determination.
To begin, Whisman’s argument assumes that she proved actual
Pseudomonas exposure in her workplace and that such exposure at work, and
nowhere else, was the cause of her initial infection, later infections, or
reinfections thereafter. This argument also discounts the myriad sinus issues
which affected, and still affect, Whisman in addition to prior Pseudomonas
infections. Whisman’s almost intractable sinus issues contain elements of both
structural, allergic, and infectious issues. None of her structural problems
relate to any work injury and there was no proof that her infection-related
issues (even if all such infections and resultant injuries had been proven to
have been either directly caused by workplace exposure which they were not)
produce[d] or cause[d] the disease independently of any other cause. KRS
342.0011(4).
Finally, even Whisman’s own treating physician could not testify that the
manifestations of her illness(es) were caused by Pseudomonas even at the times
it was found in her sinuses.
Both Childers and Hall, each of which are inhalation cases like
Whisman’s claim, are distinguishable. In Childers, we reversed the Board in a
silicosis case where the claimant was exposed to silica dust at work and stated
the standard as follows:
In such cases . . . this Court held that where the employee was shown to have silicosis, and had worked for a substantial period of years for the employer from whom he sought compensation,
13 scientific proof of the presence of silica dust in injurious quantity was not required. In the Peabody and Hooks cases the employe was engaged in the same type of work as was Childers in the instant case, namely, the operation of a mine motor car which used sand for traction purposes.
In the instant case Childers admittedly had silicosis. According to the medical testimony he had it in some degree when he began work for his last employer. However, it had not advanced to a disabling stage. He worked for his last employer for 23 months, operating the mine motor car. There was testimony that he was exposed several hours a day to dust from the sand used for traction and to rock and coal dust. At the end of the 23 months the silicosis had progressed to a disabling stage. Under these circumstances we think the board would have been entitled to find that there was injurious exposure within the meaning of the statute, without requiring scientific proof of the presence of silica dust in sufficient quantity to be capable of causing silicosis.
Childers, 337 S.W.2d at 683 (citations omitted).
In Hall, medical records indicated that the claimant was exposed to
asbestos which was present in both insulation and floor tiles and the medical
report also noted that Hall gave “a very convincing history of being exposed to
asbestos while working at Letcher high school and there is an appropriate lag
time.” Hall, 576 S.W.3d at 126-27. The report concluded that asbestos
containing materials at the school were causally related to Hall’s condition. Id.
In these cases, it was readily recognized that silica dust exposure causes
silicosis in humans and asbestos exposure causes mesothelioma. Neither
disease is possibly caused by common allergens or bacteria found outside the
workplace. Furthermore, both conditions are known presumptively as
incurable and permanent. In Whisman’s case it would have been unreasonable
14 for the ALJ to assume, or determine, that being exposed to Pseudomonas in
unknown levels, at unknown times, possibly in the workplace, was the
causative agent of each or any of the injuries of which Whisman complains.
B. Did the ALJ err in relying on, or being persuaded by, Dr. Archer’s opinions?
Whisman, as she has previously, contends that the ALJ should have
disregarded Dr. Archer’s report because he did not review all her prior medical
records and failed to correctly diagnose her as suffering from chronic sinusitis,
citing to Cepero, 132 S.W.3d at 843-44, where this Court determined that a
medical opinion was ineffective as substantial evidence when the physician’s
opinion was based upon substantially inaccurate or a largely incomplete
history. We are not persuaded by that argument here.
In Cepero, the ALJ ruled in favor of a claimant for an allegedly work-
related knee injury based upon evidence from two doctors who indicated that
his knee condition was related to a work injury. Id. at 842. However, neither
doctor had been informed that claimant had suffered a severe knee injury
several years prior. Id. at 842. The Board reversed the ALJ’s finding that the
doctors’ opinions were based upon substantial evidence. Id at 842. This Court
affirmed, quoting the Board’s own holding:
[I]n cases such as this, where it is irrefutable that a physician’s history regarding work-related causation is corrupt due to it being substantially inaccurate or largely incomplete, any opinion generated by that physician on the issue of causation cannot constitute substantial evidence. Medical opinion predicated upon such erroneous or deficient information that is completely unsupported by any other credible evidence can never, in our view, be reasonably probable.
15 Id. We applied this same reasoning in the later opinion in Eddie’s Service
Center v. Thomas, 503 S.W.3d 881 (Ky. 2016), and held that an ALJ has the
discretion to reject a medical report based on a substantially inaccurate
understanding of the facts and medical history and because of several internal
consistencies within the report, along with the doctor’s inaccurate
understanding of the facts, the report could not constitute substantial
evidence. Id. at 887-89. “Evidence is substantial if it is of ‘relevant consequence
having the fitness to induce conviction in the minds of reasonable men.’” Id. at
887 (quoting Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d 367, 369 (Ky.
1971)).
In GSI Commerce v. Thompson, 409 S.W.3d 361 (Ky. App. 2012), the
Court of Appeals held that an ALJ was not required to disregard a medical
report that was “not ‘unsupported by other credible evidence.’” Id. at 365. In
that case, an employer contended that a physician’s report could not be
considered because it did not mention a prior relevant injury; however, the
doctor explained during deposition that he was aware of the claimant’s past
injury. Id. The Court of Appeals distinguished between the facts in GSI
Commerce and Cepero, stating “[i]n Cepero, there was a complete omission of a
significant and clearly relevant past injury . . . the medical opinion described in
Cepero was completely unsupported by any other credible evidence” and
explained that, in GSI Commerce, the physician making the report was aware of
16 the prior injury and there was other evidence before the court corroborating the
physician’s opinion. GSI Commerce, 409 S.W.3d at 364-65.
The Court of Appeals was correct in this matter when it determined that
the facts here most closely resemble those of GSI Commerce. Dr. Archer’s Form
107 report showed that he had an accurate understanding of Whisman’s prior
medical history, even if he did not have access to all her prior medical records.
He specifically indicated in the report that Whisman’s sinus complaints dated
back to 2013 and that she attributed those problems to her work.
Most importantly, Dr. Archer conducted his own examination of
Whisman and explained in his deposition that he did not see any pathologic
abnormalities at the time he examined her sinus cavities. While Dr. Archer did
not report a diagnosis of chronic sinusitis in his report, he did conclude that
while Whisman had sinusitis at one time, she was not actively experiencing
“chronic sinusitis” at the time of his examination, explaining:
[B]ecause she’s had extensive sinus surgery, we actually have the opportunity of placing scopes into the sinus, not just into the nose, to examine those areas and the scans that were referred to at the time did not show any evidence of acute or chronic sinusitis either.
The operative question in this case on review has always been whether
the evidence was so overwhelming that it compelled a favorable finding. Even
though Dr. Cecil had previously diagnosed Whisman with chronic sinusitis, he
clarified in his deposition that he was unable to conclude within a reasonable
medical probability that Whisman’s condition was caused by any exposure in
her workplace.
17 The ALJ properly considered all the evidence, much of which cast doubt
on Whisman’s theory of causation. As correctly noted by the ALJ, Whisman’s
nasal and sinus issues predated her assignment to the machine area at Toyota
and showed itself at times when she was not working in that area. Sinusitis
can be caused by several different factors. Pseudomonas is a common bacteria
found in our living environment. Dr. Cecil testified that Pseudomonas could
cause sinusitis, but he was unable to offer an opinion on actual exposure or
exposure levels such as whether bacterial levels present in any coolant could
migrate into vapor and then enter an employee’s sinuses in sufficient
concentrations to have potentially, or independently, caused Whisman’s
injuries. Even Dr. Owen’s report, while indicating that working at Toyota
exacerbates and is “associated with” Whisman’s sinusitis, does not allege that
Whisman’s work independently caused her issues.
III. CONCLUSION
For the foregoing reasons, the opinion of the Court of Appeals and order
of the Workers’ Compensation Board are affirmed.
All sitting. All concur.
18 COUNSEL FOR APPELLANT:
Charles W. Gorham
COUNSEL FOR APPELLEE:
Kenneth J. Dietz Lucas & Dietz, PLLC
ADMINISTRATIVE LAW JUDGE: Hon. Greg W. Harvey
WORKERS’ COMPENSATION BOARD: Hon. Michael Wayne Alvey, Chairman