BRIEFS FOR APPELLANT/CROSS- APPELLEE, KENTUCKY RIVER REGIONAL JAIL: Ralph D. Carter Hazard, Kentucky BRIEF FOR APPELLEE/CROSS- APPELLANT, DILLION: Timothy J. Wilson Lexington, Kentucky
NOT TO BE PUBLISHED
CROSS-PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-01507
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-01507
BEFORE: CLAYTON, NICKELL, AND THOMPSON, JUDGES. NICKELL, JUDGE: Kentucky River Regional Jail (KRRJ) petitions for review of an opinion of the Workers' Compensation Board affirming the opinion and order of the Administrative Law Judge (ALJ), as well as subsequent denial of cross-petitions for reconsideration. Finding Richard Dillion suffered an injurious exposure to secondhand smoke while employed as a deputy jailer at the KRRJ that caused no permanent impairment, the ALJ awarded medical benefits but disallowed permanent indemnity benefits. KRRJ argues the evidence did not support a finding of an injurious exposure. Dillion has filed a cross-petition, arguing he retained a permanent impairment.
Dillion was employed as a deputy jailer from 1996 to 2010. Although a smoking ban went into effect at the jail in January 2006, the evidence was uncontroverted that indoor smoking by inmates continued. Dillion claims he contracted COPD (chronic obstructive pulmonary disease) due to his exposure to this secondhand smoke. Dillion himself never smoked, but he was exposed to cigarette smoke as a child.
The ALJ found Dillion suffered an injurious exposure to secondhand smoke at KRRJ and awarded him medical expenses. The ALJ further found, however, that Dillion suffered no permanent impairment, and consequently did not award any permanent disability benefits. Cross-petitions for reconsideration were filed by KRRJ and Dillion; both were denied. On review, the Board affirmed the opinion and order of the ALJ. This appeal and cross-appeal followed.
The function of further review of the WCB [Workers' Compensation Board] in the Court of Appeals is to correct the Board only where the Court perceives 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.
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
KRRJ argues the evidence in the record does not support the finding that Dillion's workplace exposure to secondhand smoke could have independently caused his COPD. Under KRS 342.0011(4), "injurious exposure" is defined as "exposure to occupational hazard which would, independently of any other cause whatsoever, produce or cause the disease for which the claim is made[.]" KRRJ points to various pieces of evidence it claims undermine the ALJ's conclusion. For instance, although Dr. Glen Baker attributed Dillion's COPD to secondhand smoke, he never expressly testified it was secondhand smoke in the workplace, and Dillion himself testified he was exposed to secondhand smoke as a child. Dr. Steven Kraman, the university evaluator, attributed any pulmonary impairment, in whole or in part, to occupational exposure to secondhand smoke in the work environment, but did not diagnose COPD. Dr. Kraman also noted the degree of impairment described by Dillion was "very much out of proportion to the minor pulmonary function abnormality noted."
Kentucky Revised Statutes.
Under KRS 342.285, "the fact-finder, rather than the reviewing court, has the sole discretion to determine the quality, character, and substance of evidence . . . ; that an ALJ, as fact-finder, may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it came from the same witness or the same adversary party's total proof[.]" Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999) (internal citations omitted). Furthermore, there is "no controlling statute or case that requires a finding of causation to be based solely on a physician's opinion or that deprives an ALJ of the authority to infer causation from properly admitted evidence." Dravo Lime Co., Inc. v. Eakins, 156 S.W.3d 283, 289 (Ky. 2005).
As the Board noted, KRS 342.0011(4) requires only a finding that the exposure "would" independently cause the disease, not that the exposure did in fact independently cause the disease. "[T]he basic question . . . is whether the exposure . . . would have produced or caused his disease in and of itself regardless of any other exposure." Mills v. Blake, 734 S.W.2d 494, 496 (Ky. App. 1987).
We agree with the Board—Dillion's testimony regarding the pervasive presence of secondhand smoke at the KRRJ, the opinion of Dr. Kraman that Dillion suffered from pulmonary impairment due to secondhand smoke exposure, and the opinion of Dr. Baker that the pulmonary impairment was due solely to secondhand smoke exposure—constitutes sufficient evidence to support the ALJ's decision and may not be reversed. The fact that KRRJ was able to identify conflicting evidence is unpersuasive. "Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).
Next, KRRJ argues the ALJ did not find COPD is an occupational disease as alleged by Dillion. "Occupational disease" is defined as "a disease arising out of and in the course of the employment[.]" KRS 342.0011(2). The statute further provides that
[a]n 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. The occupational disease shall be incidental to the character of the business and not independent of the relationship of employer and employee. An occupational disease need not have been foreseen or expected but, after its contraction, it must appear to be related to a risk connected with the employment and to have flowed from that source as a rational consequence[.]
KRRJ argues there is no evidence connecting COPD to any distinctive feature of Dillion's job as a deputy jailer which would be common to all deputy jailers. In interpreting an earlier statutory definition of occupational disease, Kentucky's highest court refused
to make compensable only those diseases which arise out of the occupational environment and which a member of the public could not contract outside such an environment. There is probably no movement of the human body required in the performance of a job which cannot be duplicated in the discharge of household chores or in the pursuit of recreation and yet any of these might produce a disease such as we have here. Similarly there are few, if any, compensable diseases induced by germs or inhalation of impurities which could not at some time be contracted by a member of the general public.
National Stores, Inc. v. Hester, 393 S.W.2d 603, 604 (Ky. 1965). Thus, the fact that members of the general public who are not employed as jailers could contract COPD from the inhalation of secondhand smoke does not mean it is not compensable.
KRRJ argues there is no evidence COPD is "incidental to the character of the business" or "related to risk connected with the employment." However, Dillion did not need to prove all jailers are exposed to secondhand smoke as a feature peculiar to their employment. As the Board stressed, the focus is on the particular circumstances of the employment, not the occupation itself. "[T]he test . . . is not whether the disease is literally peculiar to the occupation but whether there exists a recognizable link between the disease and some distinctive feature of the claimant's job, common to all jobs of that sort." Id. at 605. Jailers spend their working hours in a highly-restricted facility in close proximity to inmates; if secondhand smoke is present, they are unable to avoid it. Thus, the secondhand smoke and the resulting COPD were risks connected with Dillion's employment and flowed from that employment as a rational consequence.
In his cross-petition, Dillion argues the ALJ erred in assigning a 0% impairment rating in reliance on Dr. Kraman's opinion. Dr. Kraman's pulmonary function studies found a FVC result of 69% and a FEV1 result of 65%. Dillion argues that when these figures are analyzed using the pertinent tables of the AMA Guides to the Evaluation of Permanent Impairment ("Guides") an impairment rating of 10% to 25% must result. But Dr. Kraman did not believe the pulmonary function test results were valid because Dillion was not putting forth a full effort. This conclusion is confirmed by the deposition testimony of Dr. Baker. When Dr. Baker was asked whether Dr. Kraman's pulmonary function study results, strictly using the Guides, would result in any impairment, he replied that they would if the values were accurate. Dr. Baker was then asked, "But they were not valid, is that correct?" He replied: "Dr. Kraman felt they were not." Thus, Dillion's argument that Dr. Kraman's test results compelled an impairment rating under the Guides is not borne out by the testimony of Dr. Kraman or Dr. Baker. Thus, the Board did not err in affirming the ALJ's finding that Dillion did not retain a permanent impairment.
A calculated ratio used in the diagnosis of obstructive and restrictive lung disease. It shows the proportion of a person's vital capacity he is able to expel in the first second of expiration. Normal values are approximately 80%.
For the foregoing reasons, the opinion and order of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT/CROSS-
RIVER REGIONAL JAIL:
Ralph D. Carter
BRIEF FOR APPELLEE/CROSS-
Timothy J. Wilson