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RENDERED: DECEMBER 17, 2019

KROGER

2019-SC-000264-WC

APPELLANT

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 2018-CA-000806

WORKERS’ COMPENSATION BOARD NO. 16-WC-65271

BETTY JO ROBINSON, THE WORKERS’ APPELLEES

COMPENSATION BOARD, AND

HONORABLE TANYA PULLIN,

ADMINISTRATIVE LAW JUDGE

MEMORANDUM OPINION OF THE COURT

REVERSING AND REINSTATING

The Workers Compensation Board (Board) affirmed the Administrative

Law Judge’s (ALJ) dismissal of Betty Jo Robinson’s claim for benefits for a

cumulative-trauma injury to her right wrist allegedly sustained while working

for Kroger. The Court of Appeals’ opinion vacated the Board’s opinion and

remanded the claim to the Board with directions to address whether repetitive

motion aroused a pre-existing, dormant condition into disabling reality.

Kroger argues here that the Court of Appeals improperly substituted its

interpretation of the evidence for that of the fact-finder, the ALJ, and that the

ALJ correctly dismissed Robinson’s claim because she did not meet her burden

of establishing that the injury to her wrist was caused by her work at Kroger.
After careful review, we agree with Kroger, reverse the opinion of the Court of

Appeals, and reinstate the opinion of the Board.

I. BACKGROUND.

Robinson began working for Kroger in 2013. For the first year and a half,

she worked part-time, performing duties such as preparing party trays, slicing

and shredding meats, and working in the bakery. After going full-time, she took

on the additional duty of working the chicken fryers. Robinson testified that on

October 1, 2016, she started to feel burning pain and numbness in her right

wrist and fingers.1 That same day, she saw Dr. Johnson at a Norton Immediate

Care, who placed her in a splint, prescribed ibuprofen, and took her off work

for one day. Robinson continued to suffer pain and numbness following the

incident on October 1, 2016. She followed up with her primary-care physician

and received treatment from several physicians, specialists and physical

therapists, including Louisville Arm and Hand, KORT Physical Therapy, Baptist

Health, and Norton Occupational Medicine. Diagnoses were “tendonitis,”

“overuse syndrome,” “carpal tunnel syndrome,” and finally, a degenerative tear,

referred to as a “TFCC” tear. 1

1 The parties disagree as to whether these adverse symptoms began while

Robinson was at work or at home. Robinson claims that while she had noticed some

tingling in her wrist in the days before the disputed event occurred on October 1,

2016, on that date she started experiencing tingling, numbness, and burning pain in

her wrist while she was preparing chicken at work. In response, Kroger points to the

report from Robinson’s first doctor’s visit on October 1 with Norton Immediate Care,

which indicated that Robinson reported that the injury occurred at “home.” However, a

report compiled by Norton Immediate Care during Robinson’s visit two weeks later

stated that Robinson reported the incident location as “work.” All later reports

compiled by Robinson’s physicians indicated that she reported that the pain in her

wrist began while she was frying chicken at work.

2
Despite undergoing several treatments with medication, physical

therapy, wearing a wrist brace, splints, and a cast, and otherwise restricting

use of her wrist, Robinson’s wrist pain continued. She reported her injury to

management at Kroger sometime during October of 2016, and Kroger sent her

to Dr. Jeri Reed at Norton’s Medical Center. Robinson did not work at Kroger

after October 12, 2016.

In December 2016, Dr. Antony Hazel of Louisville Arm and Hand

performed an MR arthrogram on Robinson, results of which suggested

Robinson “had degenerative changes of the central triangular fibrocartilage,

with partial thickness degenerative tear at the ulnar attachment and

degenerative fraying and full-thickness perforation tear of the membranous

portion of the scapholunate ligament.” Dr. Hazel reported that “given that

[Robinson] did not have previous wrist pain [before the incident on October 1,

2016], her symptoms may have been related to her activity at work. . .[but] the

exact causalities can be difficult to assign and central TFCC tears can be

associated with repetitive action and [Robinson’s] work can aggravate this

condition.” Robinson underwent right-wrist arthroscopy with debridement of

the TFCC tear and was referred for occupational therapy at her post-surgery

follow-up fifteen days later. Robinson’s movement restrictions were initially

relaxed a couple of months after surgery but were reinstated after symptoms

again worsened. As of August 2017, Robinson was still experiencing some pain

and was only allowed to perform “light duty.”

In December 2016, Robinson filed this injury claim against Kroger.

During the course of her claim, Robinson was examined by two independent

3
medical examiners, Dr. Jules Barefoot and Dr. Richard DuBou. The ALJ

summarized Dr. Barefoot’s and Dr. DuBou’s opinions as follows:

Dr. Jules Barefoot- [Robinson] filed into evidence the April 5,

2017 independent medical examination (hereinafter “IME”) of Dr.

Barefoot. Dr. Barefoot took a history, conducted a physical

examination, and reviewed medical records. Dr. Barefoot’s

impression was “right wrist arthroscopy with debridement of TFCC,

January 5, 2017.” He said, “It is more likely than not that these

work activities accelerated or hastened her underlying dormant

and asymptomatic condition into symptomatic painful disabling

reality.” He said the arthroscopy was due to her repetitive work

activities. He noted that [Robinson] reported that her work

activities required repetitive flexion and extension as well as

supination and pronation of her forearm. He said this would be the

type of activities that would be expected to cause injury to her

TFCC over time. He said, “By her medical history and the available

medical records, workplace activities were the cause of her initial

wrist pain for which she sought medical treatment.” Dr. Barefoot

said that he based his opinion on work-relatedness on [Robinson’s]

description of her work activities. Dr. Barefoot said [Robinson]

reported that she was required to lift baskets with six chicken

breasts in them and felt that this repetitive lifting was the etiology

of her wrist pain, which began in late September 2016.

Dr. Barfoot also completed a questionnaire dated April 5,

2017 wherein he gave a diagnosis of TFCC.

Dr. Richard DuBou- [Kroger] filed in evidence a June 6, 2017

report from Dr. Dubou wherein he opined that [Robinson’s] TFCC

injury was not related to work for [Kroger]. Dr. Dubou said “all

evidence pointing to a degenerative tear of the TFCC” made it

definitely more probable that this is a degenerative tear. He also

said that it was unlikely for it to occur in as little as two years. He

said a generative tear is far more likely. He said, “with her doing

mostly non-forceful movements and her two years of working at

Kroger, I believe these are degenerative, but not related to her work

at Kroger.” He had reviewed Dr. Barefoot’s report and said there

was no reason noted in Dr. Barefoot’s IME that explains why he

felt the TFCC injury was related to [Robinson’s] work.

[Kroger] also filed into evidence the April 4, 2017 IME report from

Dr. Dubou. He took a history from [Robinson], performed a

physical examination and reviewed medical records. He diagnosed

a tear in the TFCC on the right, not relate to her work for [Kroger].

He said that on physical examination, [Robinson] had no signs of

carpal tunnel, cubital tunnel, thoracic outlet compression or

4
decreased flow through the ulnar or radial arteries. He noted that

her grip strength was still significantly down and that she had had

surgery on January 5, 2017.

The ALJ dismissed Robinson’s claim, finding that based on the medical

evidence, paying particular attention to the opinion of Robinson’s treating

physician, Dr. Hazel, Robinson had not met her burden of proving that the

injury was work related. The ALJ found more persuasive the opinion of Dr.

Dubou, a specialist in hand surgery, who opined that Robinson’s injury was

not related to her work at Kroger and that it was “definitely more probable” to

be a degenerative tear. The ALJ found Dr. Dubou’s opinion more persuasive,

noting that Dr. Hazel’s treatment records and Robinson’s own testimony

supported Dr. Dubou’s opinion, especially because Robinson’s symptoms did

not improve even after nearly three months off work.

On Robinson’s motion for reconsideration, she argued that the ALJ’s

finding that Robinson’s TFCC tear was a degenerative condition does not

resolve the issue as to whether Robinson’s injury was compensable under

McNutt Construction v. Scott as a work-related arousal of a pre-existing dormant

condition into disabling reality.2 Robinson further argued that the medical

evidence was “uncontroverted” that Robinson’s work for Kroger aggravated the

naturally occurring degenerative changes based upon Dr. Barefoot’s opinion.

She argued that Dr. Dubou’s report did not refute Dr. Barefoot’s assessment

2 McNutt Constr./First Gen. Servs. v. Scott, 40 S.W.3d 854, 859 (Ky. 2001) (“Where

work-related trauma causes a dormant degenerative condition to become disabling

and to result in a functional impairment, the trauma is the proximate cause of the

harmful change; hence, the harmful change come within the definition of an injury.”)

5
because it did not consider whether Robinson’s degenerative condition became

symptomatic sooner because of her work activities at Kroger.

The ALJ agreed on reconsideration that when a “work-related trauma

causes nonwork-related degenerative changes to be aroused into disability and

to result in impairment, that harmful change is compensable.”3 But the ALJ

rejected Robinson’s argument that Dr. Dubou’s medical opinion neglected to

consider this possibility. The ALJ reiterated that she found Dr. Dubou’s

opinion to be more persuasive, and relied heavily on the following portions of

Dr. Dubou’s letter accompanying his report:

In response to your questions, I do not see how Dr. Barefoot made

the determination that the TFCC injury was related to [Robinson’s]

work at Kroger. I left a note in my original report as to the

occasional causes of TFCC tear[s] and even over a shorter period of

two years or longer, the book notes that a combination of factors

and risks, force in repetition, force in posture have insufficient

evidence. Vibration, insufficient evidence. Highly repetitive work

alone or in combination with other factors, insufficient evidence.

Forceful work, insufficient evidence. Awkward posture, insufficient

evidence. Length of employment, insufficient evidence. [F]or

nonoccupational risk factors, age has very strong evidence.

Anatomy, very strong evidence. BMI, insufficient evidence. The

book does note that patients with ulnar negative variance had

fewer degenerative changes, but by contrast, tears on the

peripheral rim of the TFCC usually on the radial side are more

commonly traumatic in origin.

Please note again that there was no trauma involved when Ms.

Robinson felt pain in her wrist. It would be unlikely for this tear to

be traumatic since there was no ulnar variance and the tears are

mostly central.

At the present time[,] with all the evidence pointing to a

degenerative tear of the TFCC, I would state that it is definitely

3 Bright v. Am. Greetings Corp., 62 S.W.3d 381, 384 (Ky. 2001).

6
more probable that this is a degenerative tear. It would be unlikely

for it to occur in as little as two years. . . .

[The explanation of degenerative tear classifications in Green’s

Hand Book of Hand Surgery] does not give us a totally positive

diagnosis, but it does seem that a degenerative tear is far more

likely. With [Robinson] doing mostly nonforceful movements in her

two years of working at Kroger, I believe these are degenerative,

but not related to her work at Kroger. . . .

There is no reason noted in Dr. Barefoot’s IME that explains why

he feels that the TFCC injury was related to [Robinson’s] work. . . .

In reliance on Dr. Dubou’s analysis, the ALJ denied Robinson’s petition

for reconsideration based on the finding that there were no issues left

unresolved by her initial opinion. The ALJ stated that it was clear that Dr.

Dubou did consider whether Robinson’s work brought into disabling reality a

dormant condition because Dr. Dubou, after reviewing Dr. Barefoot’s report,

stated that he did not see how Dr. Barefoot concluded that Robinson’s injury

was related to her work and opined several times that Robinson’s injury was

not related to her work for Kroger. The ALJ also noted that it was important to

her previous opinion and continued reliance on Dr. Dubou’s opinion that Dr.

Dubou reviewed Robinson’s work activities and took those into account when

forming his medical opinion.

On Robinson’s appeal to the Board, she argued that the ALJ failed fully

to address causation and that the “uncontroverted” evidence supported a

finding of a work-related injury. The Board rejected Robinson’s argument that

the ALJ failed to make sufficient findings of fact, noting that the ALJ outlined

all relevant evidence in the initial opinion and order and provided an additional

five pages of findings in her order denying Robinson’s petition for

reconsideration. The Board also rejected Robinson’s argument that Dr.

7
Barefoot’s report indicating that Robinson’s TFCC tear was a degenerative

condition that became symptomatic because of her work at Kroger was

“uncontroverted.” The Board, in reliance on the letter attached to Dr. Dubou’s

report, found that Dr. Dubou’s opinion constitutes substantial evidence in

support of the ALJ’s determination and the other evidence presented did not

compel a different result requiring reversal of the ALJ’s dismissal. Accordingly,

the Board affirmed the ALJ’s opinion and order dismissing Robinson’s claims

because she did not sustain her burden of showing that she sustained a workrelated injury.

The Court of Appeals agreed with Robinson that the medical evidence

compelled the conclusion that, as Dr. Barefoot opined, Robinson’s underlying

degenerative condition was brought into disabling reality by the physical

requirements of her job at Kroger. The Court of Appeals found that Dr. Dubou’s

opinion did not specifically address whether Robinson’s underlying

degenerative condition was aroused by her work activities. Instead, Dr.

Dubou’s opinion only addressed whether Robinson had sustained a traumatic

injury. In contrast, the Court of Appeals found that Dr. Barefoot’s opinion did

specifically address this issue and found that such work activities did arouse

Robinson’s underlying condition. Because Dr. Barefoot’s finding was

uncontroverted by the medical evidence presented to the ALJ, the Court of

Appeals found that the evidence compelled a finding that Robinson sustained a

compensable injury under the standard established in McNutt Construction.4 So

4 McNutt Constr., 40 S.W.3d at 859 (“Where work-related trauma causes a dormant

degenerative condition to become disabling and to result in a functional impairment,

8
the Court of Appeals vacated the Board’s opinion and remanded the case to the

Board to address whether Robinson’s repetitive work aroused a pre-existing,

dormant condition into disabling reality. Kroger appealed to this Court solely

on the issue of whether Robinson met the threshold burden of proving that she

sustained a work-related injury under KRS 342.0011(1).5

II. ANALYSIS.

A. Standard of Review.

“When reviewing an ALJ’s decision, this Court will reverse only if the ALJ

overlooked or misconstrued controlling law or so flagrantly erred in evaluating

the evidence that it has caused gross injustice.”6 “The ALJ, as the finder of fact,

and not the reviewing court, has the sole authority to determine the quality,

character, and substance of evidence. Where, as here, the medical evidence is

conflicting, the question of which evidence to believe is the exclusive province

of the ALJ.”7 On appellate review, the issue is whether “substantial evidence”

supports the ALJ’s decision.8 “However, we review the ALJ’s application of the

law de novo.”9 “On appeal, our standard of review of a decision of the Workers’

the trauma is the proximate cause of the harmful change; hence, the harmful change

come within the definition of an injury.”).

5 Kentucky Revised Statutes.

6 U.S. Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014) (citing

Western. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).

7 Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citing Paramount Foods, Inc.

v. Burkhardt, 695 S.W.2d 418 (Ky. 1985); and Pruitt v. Bugg Bros., 547 S.W.2d 123

(Ky. 1977)).

8 Wetherby v. Amazon.com, 580 S.W.3d 521, 526 (Ky. 2019) (citing Whittaker v.

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

9 Schrecker, 455 S.W.3d at 384 (citing Finley v. DBM Techs., 217 S.W.3d 261, 264 (Ky.

App. 2007)).

9
Compensation Board ‘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.’”10

B. The Court of Appeals erred in vacating the opinion of the Board.

The only issue raised before this Court is whether the ALJ erred in

finding that Robinson failed to satisfy her burden of showing that she

sustained a work-related injury as the term is defined in KRS 342.0011(1). This

Court finds no error by the ALJ’s dismissal.

KRS 342.0011(1) provides the following:

“Injury” means any work-related traumatic event or series of

traumatic events, including cumulative trauma, arising out of and

in the course of employment which is the proximate cause

producing a harmful change in the human organism evidenced by

objective medical findings. “Injury” does not include the effects of

the natural aging process and does not include any communicable

disease unless the risk of contracting the disease is increased by

the nature of the employment. “Injury” when used generally,

unless the context indicates otherwise, shall include an

occupational disease and damage to a prosthetic appliance, but

shall not include a psychological, psychiatric, or stress-related

change in the human organism, unless it is a direct result of a

physical injury[.]

Kroger argues that the ALJ did not err when she dismissed Robinson’s

claim for failing to meet her burden of establishing that the injury to her wrist

was caused by her work at Kroger. Furthermore, Kroger argues that the Court

of Appeals improperly substituted its judgment and interpretation of the

evidence for that of the ALJ by impermissibly rejecting a reasonable

10 Pike County Bd. ofEduc. v. Mills, 260 S.W.3d 366, 368 (Ky. 2008) (quoting Western

Baptist Hosp., 827 S.W.2d at 687-88).

10
interpretation by the ALJ of Dr. Dubou’s report. Kroger argues that while the

Court of Appeals’ interpretation of Dr. Dubou’s report might also be

reasonable, it is solely the role of the ALJ to reject any testimony and to believe

or disbelieve various parts of evidence, regardless of whether it comes from the

same witness or the same adverse party’s total proof.11

In response, Robinson responds that the Court of Appeals was correct in

finding that Dr. Dubou’s report and attached letter did not consider whether

her degenerative injury became symptomatic because of her work at Kroger.

Instead, Robinson asserts that the Court of Appeals was correct that Dr.

Dubou’s report only considered whether the injury was a result of trauma or an

underlying condition. Robinson argues that because the report by Dr. Barefoot,

which concluded that Robinson’s TFCC tear was a degenerative condition that

became symptomatic as a result of her work at Kroger, was thus

“uncontroverted” by Dr Dubou’s opinion, the ALJ was not free to reject this

evidence without reasonably explaining the basis for such determination.12

Furthermore, Robinson continues to rely on this Court’s opinion in McNutt

Construction v. Scott to support her argument that the ALJ erred in dismissing

her claim because she has a compensable injury as defined in KRS

342.0011(1).

In McNutt Construction, this Court interpreted the definition of “injury” as

provided in KRS 342.0011(1). In that case, the claimant, a carpenter, filed a

11 Whittaker, 998 S.W.2d at 482.

12 Commonwealth v. Workers’ Comp. Bd., 697 S.W.2d 540, 541 (Ky. App. 1985); Collins

v. Castleton Farms, Inc., 560 S.W.2d 830, 831 (Ky. App. 1977).

11
disability claim for a work-related injury sustained to his back when he fell

through the floor of a house while working for the defendant employer.13 The

claimant’s surgeon testified that fifty percent (50%) of the claimant’s

impairment rating could be attributable to the trauma’s arousal of a preexisting condition or to the natural aging process.14 The ALJ found, and the

Board and the Court of Appeals affirmed, that the claimant was permanently

and totally occupationally disabled and rejected the employer’s argument that

there should be an exclusion from the award for the natural aging process,

noting that the surgeon specifically stated that the accident itself caused the

back problems.15 On appeal to this Court, the employer continued to argue

that disability that results from the arousal of a prior, degenerative condition

should not be considered a compensable “injury” because the condition is due

to the natural aging process.16 The employer pointed to the part of the

surgeon’s testimony stating that “half of the functional impairment to

claimant’s spine was due to the arousal of a prior, dormant degenerative

condition.”17

This Court agreed with the lower courts that the claimant in that case

suffered a compensable injury as defined by KRS Chapter 342.18 In considering

KRS 342.0011(1), this Court provided the following analysis:

13 McNutt Constr., 40 S.W.3d at 856.

14 Id. at 857.

15 Id. at 857-58.

16 Id. at 859.

17 Id.

18 Id. 12
As we construe the definition of “injury,” the critical question

is one of causation. Although KRS 342.0011(1) clearly indicates

that the effects of the natural aging process are not considered to

be an “injury,” it also clearly indicates that work-related trauma

“which is the proximate cause producing a harmful change in the

human organism” is an “injury.” When the two provisions are

considered in concert, it appears that their purpose is to

emphasize that only those harmful changes which are proximately

caused by work-related trauma are compensable pursuant to

Chapter 342. Where work-related trauma causes a dormant

degenerative condition to become disabling and to result in a

functional impairment, the trauma is the proximate cause of the

harmful change; hence, the harmful change comes within the

definition of an injury.19

Accordingly, this Court affirmed the decision of the Court of Appeals, finding

that the ALJ’s conclusion that the claimant’s impairment rating was wholly

attributable to the injury sustained because of his work for the defendant

employer was not unreasonable or erroneous as a matter of law.20

Here, we agree with the ALJ and the Board that while McNutt

Construction does allow for compensation when a degenerative injury is

brought into disabling reality because of the claimant’s work for the defendant

employer, the ALJ did not err by concluding that Robinson failed to satisfy her

burden of showing that the worsening of her degenerative TCFF tear was

caused by her work at Kroger. Unlike in McNutt Construction where the

claimant’s surgeon testified that the claimant’s degenerative back injury was

caused by the work-related trauma, Dr. Dubou’s report and accompanying

letter states multiple times that Robinson’s degenerative wrist injury was not

caused by her work at Kroger. It was within the sole purview of the ALJ to

19 Id.

20 Id. at 861.

13
believe or disbelieve various parts of evidence.21 So the Court of Appeals erred

by substituting its own assessment of Dr. Dubou’s report for that of the ALJ

and by concluding, contrary to the ALJ, that Dr. Barefoot’s opinion was

“uncontroverted” by Dr. Dubou’s opinion, compelling a different result than

that reached by the ALJ.

Furthermore, Dr. Barefoot’s report does use similar language to that

used by this Court in McNutt Construction to indicate that Robinson suffered a

compensable injury,22 and Dr. Dubou’s report and letter does not. However,

this does not render unreasonable the ALJ’s inference that Dr. Dubou’s report

considered whether Robinson’s injury was aroused by her work at Kroger and

rejected this theory. We agree with the Board that the ALJ’s findings were

supported by substantial evidence because it is clear from the record Dr.

Dubou did consider whether Robinson’s work brought into disabling reality a

dormant condition. Dr. Dubou, after reviewing Dr. Barefoot’s report, stated

that he did not see how Dr. Barefoot concluded that Robinson’s injury was

work-related, opined several times that her injury was not related to her work

for Kroger, and reviewed her work activities and took those into account when

forming his medical opinion.

21 Whittaker, 998 S.W.2d at 482.

22 Dr. Barefoot’s report stated that, “It is more likely than not that these work activities

accelerated or hastened her underlying dormant and asymptomatic condition into

symptomatic painful disabling reality.” (emphasis added). This language is very

similar to the language used by this Court in McNutt Construction to explain why the

claimant’s injury in that case was compensable under KRS 342.0011(1). McNutt

Constr, 40 S.W.3d at 859 (“Where work-related trauma causes a dormant

degenerative condition to become disabling and to result in a functional

impairment, the trauma is the proximate cause of the harmful change; hence, the

harmful change comes within the definition of an injury[.]”).

14
III. CONCLUSION.

Having concluded that the Court of Appeals erroneously substituted its

interpretation of disputed evidenced for that of the ALJ, we reverse the opinion

of the Court of Appeals and reinstate the opinion of the Board affirming the

ALJ’s dismissal of Robinson’s claim.

Minton, CJ, Hughes, Keller, Lambert, VanMeter and Wright, JJ., sitting.

Nickell, J., not sitting. All concur.

COUNSEL FOR APPELLANT:

Kroger

James Burke Cooper

Boehl, Stopher & Graves, LLP

COUNSEL FOR APPELLEE BETTY JO ROBINSON:

Charles E. Jennings

Udell Barry Levy

Jennings Law Office

COUNSEL FOR APPELLEE WORKERS COMPENSATION BOARD:

Michael W. Alvey

Honorable Tanya Gaye Pullin, Administrative Law Judge

15