RENDERED: NOVEMBER 13, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0619-WC

DARRESHIA HAYES APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NOS. WC-16-62347 AND WC-16-83591 

FIRST TRANSIT; 

HON. JOHN H. MCCRACKEN, 

ADMINISTRATIVE LAW JUDGE; 

AND WORKERS’ COMPENSATION 

BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, DIXON, AND TAYLOR, JUDGES.

COMBS, JUDGE: Appellant, Darreshia Hayes, appeals from an opinion of the 

Workers’ Compensation Board (the Board) affirming a decision of the 

Administrative Law Judge (ALJ), who found that Hayes’s injuries were only 

temporary in duration and that treatment for her ganglion cysts was not 

compensable. After our review, we affirm.
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Hayes worked as a driver for Appellee, First Transit, Inc. She alleged 

two injuries that were similar in nature. On May 12, 2016, and on October 27, 

2016, she felt a “pop” in her right wrist while strapping in or securing a passenger 

who was in a wheelchair. On March 3, 2017, Hayes underwent surgery for 

excision of ganglion cysts in her right dorsal wrist by Dr. Tate. Causation of the 

ganglion cysts was in dispute. There was also conflicting evidence whether or not 

Hayes had any permanent impairment. The parties submitted evidence from 

multiple medical providers, which we shall discuss as relevant to the issues before 

us.

On September 13, 2019, the ALJ rendered an opinion, award, and 

order. The ALJ relied upon “Hayes, Dr. Tien, Dr. Bilkey and Dr. Nicoson to find 

that Hayes sustained a right wrist strain while working for Defendant on May 12, 

2016.” The ALJ relied upon “Hayes and Dr. Nicoson to find that Hayes sustained 

a work-related right wrist injury on October 27, 2016.” 

However, the ALJ concluded that Hayes did not sustain a permanent 

injury on either date. Noting that the evidence was in conflict and that medical 

records were inconsistent, the ALJ relied upon “Dr. Wolens, Dr. Tien and Dr. 

Nicoson to find that both the May 12, 2016 and October 27, 2016 work injuries 

were temporary, not permanent injuries.” 
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The ALJ found that the ganglion cysts were not related to either of 

Hayes’s work injuries. Consequently, the ALJ found that no temporary total 

disability (TTD) was warranted following surgery on March 6, 2017, and that 

medical treatment for the ganglion cysts, including the surgery, was not 

compensable. 

The ALJ dismissed Hayes’s claim for TTD and permanent partial 

disability (PPD) benefits. The ALJ awarded medical expenses as might reasonably 

be required for the cure and relief of the effects of the May 12, 2016, injury from 

May 12, 2016, through August 19, 2016. The ALJ also awarded medical expenses 

as might reasonably be required for cure and relief of the effects of the October 27, 

2016, injury from October 27, 2016, through January 25, 2017. 

Hayes filed a petition for reconsideration, which the ALJ denied by an 

order entered on October 17, 2019. Hayes then appealed to the Board. By an 

opinion rendered on March 27, 2020, the Board affirmed as follows in relevant 

part:

On appeal, Hayes argues she is entitled to TTD 

benefits during the time she was off work due to the 

March 2017 surgery, which she contends was a 

misdiagnosis. Hayes asserts the misdiagnosis entailed 

the belief by Dr. Tate that her right wrist symptoms were 

due to the cyst. Hayes argues the Kentucky Supreme 

Court held that an injured worker is entitled to benefits 

from the time he or she is kept off work for a negligently 

diagnosed treatment of a work injury in Elizabethtown 

Sportswear v. Stice, [720 S.W.2d 732 (Ky. App. 1996)]. 
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According to Hayes, it makes no difference whether Dr. 

Tate committed malpractice by diagnosing the cyst as the 

cause of Hayes’ right wrist problems. 

Hayes further argues she is entitled to recover 

benefits for a permanent right wrist injury. Hayes points 

out Dr. Tate agreed she has permanent restrictions. 

Hayes also asserts the ALJ erred in finding the opinions 

of Dr. Bilkey not persuasive. Hayes argues the ALJ did 

not provide adequate findings of fact supporting his 

decision to not rely on Dr. Bilkey’s opinions or to 

consider the fact Dr. Tate’s opinions expressed in the 

August 11, 2017 and October 27, 2017 questionnaire.

. . .

We determine substantial evidence supports the 

ALJ’s determination Hayes sustained temporary right 

wrist injuries on May 12, 2016 and October 27, 2016, 

and a contrary result is not compelled. Hayes was 

consistently diagnosed with a right wrist sprain following 

the May 12, 2016 work incident. Dr. Wolens opined 

Hayes attained MMI from the strain of the radioulnar 

ligament three to six weeks after the occurrence of that 

event. Dr. Nicoson opined Hayes sustained right wrist 

sprains on May 12, 2016 and on October 27, 2016. He

noted wrist sprains typically resolve within six to twelve 

weeks. Dr. Nicoson found permanent restrictions 

unnecessary. He stated the right wrist sprains should 

have resolved no more than twelve weeks after the work 

incidents. He found Hayes had attained MMI, required 

no further treatment, had fully recovered from her right 

wrist injuries, and was fully capable of returning to work. 

The above evidence constitutes substantial evidence 

supporting the ALJ’s determination Hayes sustained 

temporary right wrist injuries due to the work incidents, 

and a contrary result is not compelled. 
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The Board concluded that more detailed findings of fact were not 

required and that the ALJ had accurately recited the evidence and set forth his 

reasoning, including why he did not find Dr. Bilkey’s opinion persuasive. The 

Board also found that substantial evidence supported the ALJ’s determination that 

Hayes’s right wrist ganglions were not caused by or aggravated by work -- namely,

the opinions of Dr. Wolens and of Dr. Nicoson, who agreed with Dr. Tien that the 

cysts seen on MRI were not related to the incidents at work. Therefore, a contrary 

result was not compelled. The Board also concluded that Hayes’s reliance upon 

Stice was misplaced because in this case, “the ALJ determined that the ganglion 

cysts were not work-related. Therefore, any alleged negligence or malpractice 

stemming from the treatment of those conditions, including surgery, is not 

compensable.”

On appeal to this Court, Hayes’s first argument is that she is “entitled 

to TTD benefits and reimbursement for medical expenses for the surgery on her 

cysts -- albeit on a misdiagnosis -- in an effort to provide her with treatment and a 

cure for her work injuries.” (Original emphasis deleted). We disagree.

Hayes again relies on Stice, supra. Stice held that a widower was 

entitled to death benefits where his wife died due to an allergic reaction to dye used 

in a myelogram for treatment of her work-related back injury. We agree with the 

Board that Hayes’s reliance on Stice is misplaced. 
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Hayes also relies upon Ford Motor Company v. Jobe, 544 S.W.3d 628 

(Ky. 2018). But Jobe does not dictate a different result here. In Jobe, our 

Supreme Court explained that causation is a matter to be determined by the ALJ. 

“We will not disturb the ALJ’s finding unless its basis lacks substantial evidence in 

the record. . . . The fact that an opposite conclusion could have also been 

supported by substantial evidence makes no difference in our analysis.” Id. at 634.

Hayes asserts that “it is not fair or equitable” for a party not to be 

compensated for “all of the treatment for the accident,” including unsuccessful 

treatment or treatment based upon a misdiagnosis. However, treatment for Hayes’s

ganglion cysts was denied in this case because it was not treatment resulting from 

the accident. By report dated August 4, 2016, Dr. Wolens opined that Hayes’s

ganglion cysts were not work-related and that if surgery were recommended, it 

would not be considered work-related.1 

On March 26, 2019, Hayes testified that she tried to get the surgery 

approved by “Workers’ Comp.” But they denied it. She did not appeal or file a 

medical dispute over the denial, and she proceeded with the surgery. She further 

 

1 Hayes argues that Dr. Wolens’s opinion cannot constitute substantial evidence because it 

predates the second injury. However, as First Transit states at page 10 of its Brief, “the fact the 

ganglion surgery was already discussed prior to the second injury only strengthens Dr. Wolens’ 

opinion regarding a non work-related cause.” We agree. 
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testified that the bills for Dr. Tate and the surgery were paid by health insurance. 

(Record on Appeal (ROA), pp. 457, 461). 

At the July 23, 2019, hearing, Hayes testified as follows on crossexamination:

Q. Ms. Hayes, I have just a few follow-up questions for 

you. Earlier you testified that they thought you had a cyst, 

but you didn’t?

A. Yes.

Q. That’s the way I understood it, but that’s not entirely 

accurate. I mean you did have a cyst, correct?

A. Yes.

Q. I mean, they removed the cyst?

A. They said I had a cyst that they removed, yeah.

Q. Okay. And that was the purpose of the surgery was to 

remove the cyst? That’s what they did in the surgery?

A. Yes.

Q. Okay. And your wrist pain didn’t – wasn’t relieved 

from the surgery, correct?

A. Correct.

Q. And again, before you had that surgery, it was denied 

by workers’ compensation, correct?

A. Correct. 

Q. And you didn’t file any sort of appeal or medical 

dispute from that. You went ahead and had the surgery?
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A. Yeah.

(ROA, pp. 647-48) (emphases original). The evidence does not compel a finding 

that Hayes is entitled to an award of TTD or reimbursement of medical expenses 

related to treatment/surgery for her ganglion cysts.

Next, Hayes argues that the ALJ’s decision is not based upon 

substantial evidence because the physicians upon whom the ALJ relied based their 

opinions upon an incorrect history. Again, we do not agree. This case is readily 

distinguishable on its facts from both Cepero v. Fabricated Metals Corp., 132 

S.W.3d 839, 840 (Ky. 2004), and Eddie’s Service Center v. Thomas, 503 S.W.3d 

881, 882 (Ky. 2016), both of which Hayes cites. 

Hayes argues that the case should be remanded to the ALJ for further 

findings and conclusions of law -- particularly with respect to the ALJ’s 

determination that Hayes suffered no permanent impairment. Hayes contends that 

the ALJ did not sufficiently explain why he did not rely upon Dr. Bilkey. We do 

not agree.

The ALJ made detailed factual findings summarizing Dr. Bilkey’s 

examinations and reports. As was his prerogative, the ALJ concluded that “Dr. 

Bilkey’s opinions regarding Hayes[’s] injuries and their permanence are not as 

credible of those of Dr. Tien, Dr. Wolens, or Dr. Nicoson. Dr. Bilkey simply has 

too many inconsistencies.” The ALJ has the sole authority to judge the weight, 
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credibility, substance, and inferences to be drawn from the evidence and may 

believe or disbelieve parts of the evidence from the total proof -- regardless of the 

party offering it. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 

1985); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). We 

agree with the Board that “[t]he ALJ accurately recited the evidence and 

adequately set forth the reasoning behind his ultimate decision. In addition, he 

more than adequately explained why he did not find Dr. Bilkey’s opinion 

persuasive.”

Hayes’s final argument is that the Court of Appeals should render an 

“independent interpretation” of the statute. However, the precedent governing our 

review is clear and binding.

The well-established standard of review for the 

appellate courts of a workers’ compensation decision “is 

to correct the [Workers’ Compensation] 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.” 

Tryon Trucking, Inc. v. Medlin, 586 S.W.3d 233, 237-38 (Ky. 2019) (citing 

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

no such error in the case before us.

Accordingly, we affirm the opinion of the Workers’ Compensation 

Board.
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ALL CONCUR.

BRIEF FOR APPELLANT:

Eric M. Lamb

Louisville, Kentucky

BRIEF FOR APPELLEE FIRST 

TRANSIT:

Douglas A. U’Sellis 

Louisville, Kentucky