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ACTION.RENDERED; SEPTEMBER 27, 2018

NOT TO BE PUBLISHED



### U 

### U

2018-SC-000119-WC



## ,

BRIAN STROZZO

V. APPELLANT

ON APPEAL FROM COURT OF APPEALS

CASE NO. 2017-CA-001191-WC

WORKERS ’ COMPENSATION BOARD

NO. 16-WC-00540

CESA CONTRACTORS;

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE; AND

WORKERS ’ COMPENSATION BOARD APPELLEES

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 ofusing 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 motioninjury 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. ” LKLPCAC 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 determinefrom 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.

7COUNSEL FOR APPELLANT:

Craig Housman

HOUSMAN 86 ASSOCIATES

COUNSEL FOR APPELLEE, CESA CONTRACTORS:

Samuel J. Bach

BACH 86 ARMSTRONG, LLP

8