RENDERED: MAY 26, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1027-WC

BLUELINX APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-19-64871

ESTATE OF DAVID WILLIAMS; 

TRACEY BURNS, EXECUTRIX; 

ELIJAH WILLIAMS, MINOR CHILD; 

HONORABLE W. GREG HARVEY, 

ADMINISTRATIVE LAW JUDGE; 

AND THE KENTUCKY WORKERS’

COMPENSATION BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, DIXON, AND TAYLOR, JUDGES.

DIXON, JUDGE: Bluelinx petitions for review of a Workers’ Compensation 

Board (Board) decision affirming and remanding the Opinion, Award, and Order
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rendered January 18, 2022, by the Administrative Law Judge (ALJ). After careful 

review of the briefs, record, and law, we affirm. 

BACKGROUND FACTS AND PROCEDURAL HISTORY

On February 18, 2021, Tracey Burns, Executrix, filed the underlying 

Application for Resolution of a Claim – Injury seeking workers’ compensation 

benefits, pursuant to KRS1 342.750, from Bluelinx on behalf of the Estate of David 

Williams and his minor son.

The following facts are undisputed. Williams, an employee of 

Bluelinx, suffered a work-related injury to his left ankle that necessitated surgery. 

His pre-operative cardiac exam was normal, and out-patient surgery was performed 

on October 25, 2019, without complications. Unfortunately, on October 27, 2019,

2

he returned to the hospital by ambulance and subsequently died. The death 

certificate cited complications of congestive heart failure (CHF) as the immediate 

cause of death. At the time of his death, Williams was 50 years old with an 

extensive medical history, including diagnoses of diabetes, obesity, CHF, 

hypertension, hyperlipidemia, and deep venous thrombosis (DVT). 

1

 Kentucky Revised Statutes. 

2

 We note that Bluelinx’s brief records Williams’ date of death as October 28, 2019; however, 

this appears to be in error as it is refuted by the medical records, both experts’ statements, the 

testimony of Burns, and Bluelinx’s pleadings before the ALJ. 
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On the issue of causation, Dr. Steven S. Wunder, a physiatrist retained 

by the estate, initially opined that “Williams’ cardiac condition did not pose an 

immediate threat of death prior to [surgery and, g]iven the well-documented stable 

condition of [Williams’ CHF], it is unlikely he would have succumbed to [CHF] 

on October 27, 2019, or a reasonable time thereafter, if he had not undergone the 

work-related surgery[.]” Dr. Wunder also noted that “[t]he rate of death doubles in 

the perioperative time frame in those with a history of [CHF] and subsequent 

noncardiac surgery.” 

Bluelinx’s medical expert, Dr. John D. Corl, a practicing

interventional cardiologist, disputed that Williams had CHF, though he 

acknowledged that Williams had been diagnosed with the condition during a 2014 

hospitalization. Dr. Corl’s objection was based on his review of the 

echocardiogram performed in 2014, the lack of confirmation by means of 

catheterization following Williams’ subsequent diagnosis of liver abscesses, and 

the fact that Williams, who was not being treated for the condition, had no 

recurrent symptoms in the ensuing five years. Instead, concluding that there was 

no direct causal relationship between the death and the surgery, Dr. Corl opined 

that Williams suffered a sudden cardiac death caused by his known and 

uncontrolled comorbid conditions – diabetes, hypertension, and obesity – as well 

as probable sleep apnea. 
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In response, Dr. Wunder submitted the following rebuttal opinion: 

I am surprised by the statements of Dr. Corl, as it is 

irrefutable that cardiac complications occur in those 

undergoing major, noncardiac surgery. In fact, cardiac 

complications are common after noncardiac surgery, and 

include sudden cardiac death. The single largest cause of 

perioperative patients death, I would agree with Dr. Corl, 

would be major adverse cardiac events. The number of 

patients undergoing noncardiac surgery is wide and is 

growing, and annually, 500,000 to 900,000 of these 

patients experience perioperative cardiac death, nonfatal 

myocardial infarction, or nonfatal cardiac arrest. 

Noncardiac surgery is associated with significant cardiac 

morbidity, mortality, and cost. 

[]

Patients undergoing noncardiac surgery are at risk for 

major perioperative cardiac events. Perioperative 

myocardial infarction occurs primarily during the first 

three days after surgery, as was noted here. Some 

theorize that patients are receiving narcotic therapy and 

may not experience cardiac symptoms during a 

myocardial infarction. On studies which have examined 

perioperative cardiac death, authors attributed the cause 

to myocardial infarction in 66[%] of the cases and to 

arrhythmia or heart failure in 34[%] of the cases. It is felt 

that surgery with associated trauma, anesthesia, 

analgesia, intubation, extubation, pain, bleeding, and 

anemia all initiate inflammatory, hypercoagulable stress 

and hypoxic states, that are associated with perioperative 

elevations in troponin levels and mortality. 

[]

It is irrefutable that general anesthesia can initiate 

inflammatory and hypercoagulable states, and a sudden 

cardiac death syndrome. The stress of surgery also 

involves increased levels of catecholamines and 
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increased stress hormone levels. Perioperative hypoxia 

can also lead to myocardial ischemia. It is felt that 75[%] 

of deaths after noncardiac surgery are due to 

cardiovascular complications, as outlined by Dr. Corl, 

and I am certain he must be aware of this. I have 

enclosed a review article from the New England Journal 

of Medicine [entitled Cardiac Complications in Patients 

undergoing Major Noncardiac Surgery (hereinafter “the 

Journal article”)] supporting that noncardiac surgery can 

precipitate complications such as death from cardiac 

causes, myocardial infarction or injury, cardiac arrest, or 

[CHF]. The number of patients receiving noncardiac 

surgery is increasing worldwide. More than 10 million 

adults worldwide have a major cardiac complication in 

the first 30 days after noncardiac surgery. As the 

[Journal] article points out, if perioperative death were 

considered as a separate category, it would rank as the 

third leading cause of death in the United States. I am 

surprised that Dr. Corl was not aware of that. Surgery 

initiates an inflammatory response, stress, 

hypercoagulability, activation of sympathetic nervous 

system, and hemodynamic compromise, all of which can 

trigger cardiac complications. 

I am really confused as to what point Dr. Corl is trying to 

make. He seems to be arguing that [Williams] did not 

have [CHF]. He points out that no autopsy was done, 

and the cause of death was speculation. In addition to 

cardiac complications, sudden death can also be 

associated with [DVT] and pulmonary emboli, and 

[Williams] had a history of DVT already. Whichever 

complication his cause of death is attributed to, ([CHF] 

or pulmonary embolism), they occur at an increased 

frequency in the perioperative state. There is no way that 

Dr. Corl can make the statement that there was no direct 

causal relationship between [Williams’] noncardiac, left 

ankle surgery on October 25, 2019, and his death on 

October 27, 2019. Sudden cardiac death is a known 

complication of noncardiac surgery. 
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On January 18, 2022, the ALJ returned an opinion examining the 

merits of the experts’ competing opinions. 

A reading of the totality of the evidence is 

important. The [ALJ] interprets Dr. Wunder’s opinion to 

be that Williams’ surgery resulted in a cardiac event that 

caused his death. Dr. Corl also opines a cardiac event 

occurred that caused Williams[’] death. However, he is 

of the opinion that the surgery did not result in or cause 

the cardiac event. Dr. Corl reasoned that events occur to 

all persons who die from sudden cardiac death but that 

does not mean that those events are causative. 

Here, the ALJ acknowledges Dr. Corl’s superior 

qualifications on cardiac issues. However, Dr. Wunder 

has responded to Dr. Corl’s opinion and cited evidence 

from the [Journal article]. The question is whether the 

surgery proximately caused the sudden cardiac death. 

Dr. Corl testified about statistical probability based on 

the comorbid factors. Williams had the same comorbid 

factors for years prior to the surgical procedure. Two 

days after being placed under general anesthesia he was 

found unresponsive and died. 

[]

The ALJ agrees with Dr. Corl that Williams did not have 

[CHF] and that he suffered sudden cardiac death. 

However, the ALJ finds Dr. Wunder’s opinion that 

surgery caused the sudden cardiac event persuasive. This 

is true in light of the facts that Williams was not treating 

for [CHF], did not have pre-operative cardiac concerns or 

red flags. It is possible Williams might have had a 

sudden cardiac event on October 27, 2019, if he had not 

had surgery. It is also possible he could have had sudden 

cardiac [death] at any point for the years he carried the 

same comorbidities described by Dr. Corl. However, 

Williams did not have a sudden cardiac death until two 

days after surgery. Dr. Wunder has offered sufficient 
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evidence that noncardiac surgery is a known cause of 

sudden cardiac death. The facts coupled with Dr. 

Wunder’s opinion are persuasive to the ALJ and cause 

the ALJ to conclude Williams’ death by a sudden cardiac 

event was proximately caused by the work-related 

surgical procedure. 

Accordingly, the ALJ awarded death, dependent, and total disability 

benefits. After its Petition for Reconsideration was denied, Bluelinx appealed; the 

Board affirmed, though it remanded for an additional award of medical benefits; 

and this action followed. We will introduce further facts as they become relevant. 

STANDARD OF REVIEW

Workers’ compensation is governed by KRS Chapter 342. Disputes 

over benefits are resolved by ALJs and reviewed on appeal by the Board. KRS 

342.275; KRS 342.285. Our review of the Board’s opinion is limited. “When 

reviewing the Board’s decision, we reverse only where it has overlooked or 

misconstrued controlling law or so flagrantly erred in evaluating the evidence that 

it has caused gross injustice.” GSI Commerce v. Thompson, 409 S.W.3d 361, 364 

(Ky. App. 2012) (citing W. Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992)). 

LEGAL ANALYSIS

Bluelinx argues the Board erroneously concluded the ALJ’s judgment

was supported by substantial evidence when the basis thereof – Dr. Wunder’s 

causation opinion and the Journal article upon which he relied – are devoid of any

probative value. In support, Bluelinx asserts that the facts espoused by Dr. 
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Wunder are unsupported, and thus unreliable, or are gleaned from the Journal 

article which Bluelinx contends is wholly irrelevant to the matter at hand. We are 

not convinced the Board erred. 

To the extent Bluelinx claims that the ALJ was not permitted to rely 

on Dr. Wunder’s rebuttal opinion or the Journal article, it is notable that Bluelinx 

neither challenged the admissibility of this evidence in the proceedings before the 

ALJ nor raised the Board’s refusal to rule on the unpreserved claim in the matter at 

bar. As a general rule, “when the question is one properly within the province of 

medical experts, the [ALJ] is not justified in disregarding the medical evidence.” 

Kingery v. Sumitomo Elec. Wiring, 481 S.W.3d 492, 496 (Ky. 2015) (quoting 

Mengel v. Hawaiian-Tropic N.W. and Cent. Distribs., Inc., 618 S.W.2d 184, 187 

(Ky. App. 1981)). Exceptions exist in cases involving observable causation, or if 

the medical opinion is the result of the claimant providing an inaccurate or 

misleading medical history. Id.; Cepero v Fabricated Metals Corp., 132 S.W.3d 

839 (Ky. 2004). This Court is unaware of a similar exception based solely on the 

expert’s failure to source his opinion, and Bluelinx has cited no relevant authority

in support. Here, whether the surgery was the proximate cause of Williams’ death 

two days later is clearly an issue to be resolved by medical experts, and there is no 

contention that Dr. Wunder was not aware of the precise surgical procedure 

Williams underwent or his relevant medical history. Accordingly, the ALJ was 
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not, as Bluelinx asserts would be proper, permitted to wholly disregard Dr. 

Wunder’s opinion and accept Dr. Corl’s by default. Rather, the ALJ was required 

to weigh the evidence. 

As the Kentucky Supreme Court explained in Whittaker v. Rowland, 

998 S.W.2d 479, 481-82 (Ky. 1999): 

[T]his Court has construed KRS 342.285 to mean that 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[;] and that where the party with the burden of proof 

was successful before the ALJ, the issue on appeal is 

whether substantial evidence supported the ALJ’s 

conclusion[.] Substantial evidence has been defined as 

some evidence of substance and relevant consequence, 

having the fitness to induce conviction in the minds of 

reasonable men. 

(Citations omitted.) 

In its opinion affirming, the Board concluded that Dr. Wunder’s 

opinion, which was given in terms of reasonable medical probability, satisfied this 

requirement. In so deciding, the Board noted consistent testimony from Dr. Corl’s 

deposition that no surgical procedure using anesthesia is without risk; that a fatality 

could occur even from a low-risk ankle surgery; and that survival following 

surgery does not eliminate surgery as the potential cause of a patient’s death 

occurring in the subsequent 24 to 48 hours (though Dr. Corl stated that this risk is 
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lower in an elective outpatient procedure than a more taxing procedure, such as a 

bypass). The Board additionally rejected Bluelinx’s claim that the Journal article 

was irrelevant, concluding its applicability was an issue reserved for a medical 

expert, and held that the ALJ was free to conclude that it was germane to the case. 

We perceive no error. Bluelinx’s issue with the sourcing of Dr. 

Wunder’s opinion is a matter of weight and credibility reserved for the ALJ, and it 

is not this Court’s function to reweigh the evidence on a question of fact. See id. at

482. As for Bluelinx’s challenges to the Journal article’s relevance, Dr. Wunder’s 

citation thereto, as well as his repeated quotation of its salient points, demonstrates 

his conclusion as an expert that it was relevant to his medical opinion regarding 

Williams’ death. We also note that “ALJs are not permitted to rely on lay 

testimony, personal experience, [or] inference to make findings that directly 

conflict with the medical evidence[.]” Kingery, 481 S.W.3d at 496 (quoting

Mengel, 618 S.W.2d at 187). Additionally, while Bluelinx would have this Court 

evaluate the applicability of the source material cited by the Journal article and 

then, without affording Williams the opportunity to explain or respond, conclude 

it – and by extension Dr. Wunder’s opinion – did not constitute sufficient evidence, 

we are not permitted to consider matters not disclosed by the record. Montgomery 

v. Koch, 251 S.W.2d 235, 237 (Ky. 1952). Finally, we are unconvinced the 

evidence is insufficient to support the judgment merely because in one section of 
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the Journal article, which is a review of several different studies on the topic of 

cardiac complications following noncardiac surgery, the scope of a particular study 

is defined to the exclusion of the procedure at issue herein. Having reviewed the 

evidence, we cannot say that the Board’s assessment is patently unreasonable or 

flagrantly implausible. 

CONCLUSION

Therefore, and for the foregoing reasons, the decision of the Board is 

AFFIRMED. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Mark R. Bush

Samantha Steelman

Ft. Mitchell, Kentucky 

BRIEF FOR APPELLEES:

Haley S. Stamm

Ft. Mitchell, Kentucky