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# ACTION.RENDERED: MARCH 26, 2020

2018-SC-000686-WC

APPELLANT DINA WOOD

ON APPEAL FROM COURT OF APPEALS

V. CASE NO. 201 7-CA-00 1694

WORKERS ’ COMPENSATION BOARD NO. 10-WC-84731

METALSA AUTOMOTIVE USA; DANA APPELLEES

CORPORATION; HON. ROBERT L.

SWISHER, FORMER CHIEF

ADMINISTRATIVE LAW JUDGE; HON.

DOUGLAS W. GOTT, CHIEF

ADMINISTRATIVE LAW JUDGE

AND WORKERS ’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Dina Wood appeals the Court of Appeals ’ decision affirming the dismissal

of her complaint against her current employer, Metalsa. Dana Corporation,

Wood ’ s former employer, was also a defendant in this case when filed in this

Court. Subsequent to the filing of Wood ’ s appellant brief, Wood and Dana

reached a settlement and Dana was dismissed from further proceedings. Thus,

we will only review the single issue of whether the Administrative Law Judge ’ s

( “ AU ” ) dismissal of Metalsa was supported by substantial evidence. We find

no error in the AU ’ s decision and affirm Metalsa ’ s dismissal.

I. Factual and Procedural Background.

1Wood began employment with Dana in 1996. She worked on the

assembly line as a welder until 2005. 1 Wood began experiencing symptoms in

her hands, arms, and neck in 2003. She originally reported her injury to Dana

and was paid benefits on the claim. In 2006, Wood began a new job in the

store room, and her symptoms improved. However, in 2008, she returned to

her job on the assembly line and her symptoms returned. In March 2010,

Metalsa purchased the plant where Wood worked. While her symptoms never

increased, they also never quite went away, and on October 22, 2012, Wood

had surgery. Wood ’ s surgery was successful, and she returned to work with no

restrictions in 2013. She has had no further surgery and stopped receiving

additional treatment in 2014. Wood subsequently filed a claim for benefits

against both Dana and Metalsa listing, in pertinent part, October 22, 2012, as

a date an “ injury ” occurred.

On March 30, 2017, the ALJ dismissed Wood ’ s application for benefits.

The ALJ relied upon the examination conducted by Dr. Thomas Gabriel, who

determined that the October 22, 2012, date was merely the date of Wood ’ s

surgery, not the date of an injury. As it relates to Wood ’ s claims against

Metalsa, the Board affirmed the ALJ ’ s decision regarding the alleged October

22, 2012, “ injury. ” Wood appealed, and the Court of Appeals affirmed. Wood

next appealed the decision to this Court and filed her appellant brief. The

appeal was abated in April 2019, pending consideration of a settlement

agreement between Dana and Wood. Dana filed a motion for dismissal which

1 Most of the extensive factual background in Wood ’ s brief relates to the two

issues no longer before this Court due to Dana ’ s dismissal. Thus, we discuss the facts

solely surrounding Wood ’ s claim that her October 22, 2012, surgery constitutes an

“ injury ” and entitles her to benefits paid by Metalsa.

2was unopposed, and Dana was dismissed in July 2019. Metalsa subsequently

filed its appellee brief contesting the single issue remaining: whether Wood ’ s

October 22, 2012, surgery constituted an injury, thus establishing liability

upon Metalsa.

H. Standard of Review.

In Active Care Chiropractic, Inc. v. Rudd, 556 S.W.3d 561 (Ky. 2018), we

reiterated the proper standard of review for workers ’ compensation decisions.

We review statutory interpretation de novo. The well-established

standard for reviewing a workers ’ compensation decision 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. Finally, review by this Court is 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.

Id. at 564 (internal quotations and citations omitted).

m. Analysis.

While difficult at times to understand Wood ’ s argument against

Metalsa

— an issue referred to by both the Court of Appeals and the Board

—

Wood appears to argue that the ALJ erred in concluding that no injury

occurred on October 22, 2012.

An injured worker bears the burden of proof and risk of non

persuasion with regard to every element of a claim. KRS

342.285(1) provides that the ALJ ’ s decision is “ conclusive and

binding as to all questions of fact, ” which gives the ALJ the sole

discretion to determine the quality, character, and substance of

evidence. An ALJ may reject any testimony and believe or

disbelieve various parts of the evidence, regardless of whether it

comes from the same witness or the same adversary party ’ s total

proof. The mere existence of evidence that would have supported a

different decision is an inadequate ground for reversal on appeal.

3Am. Greetings Corp. v. Bunch, 331 S.W.3d 600, 602 (Ky. 2010) (internal

footnotes omitted).

Wood must prove that an injury occurred on October 22, 2012. If Wood

had a manifestation of an injury on that date, she may be entitled to benefits

paid by Metalsa, as she was working for Metalsa at the time. The ALJ relied on

the examination of Dr. Gabriel, who determined that Wood ’ s injuries were

caused sometime between 1996 and March 2010, while she was working for

Dana and “ no additional harmful change ” occurred following the purchase of

the plant by Metalsa. The only alleged action that occurred on October 22,

2012, was Wood ’ s successful surgery. Wood makes no effort to explain why a

successful surgery should be considered an “ injury ” which would start a new

two-year statute of limitations for filing workers ’ compensation benefits.

Instead, Wood argues that surgery was a “ further manifestation ” of her injury

which required follow-up treatment. In support of her argument, she

summarily lists two cases and states that under those cases, “ [claimant

unequivocally proved that there was some disability that occurred between

October 22, 2012, the manifestation date, and September 9, 2014 when the

Form 101 was found. ”

While Wood may be correct that she received treatment post-surgery, she

does not cite to, and this Court is unaware of, any case holding that a

successful surgery constitutes an injury. Furthermore, Wood ’ s surgery resulted

from her work at Dana, and had been a treatment option since 2005. If a

successful surgery constituted an “ injury ” under our Workers ’ Compensation

Act, employers would have no incentive to assist their employees in obtaining

surgery as a course of treatment because a successful surgery would only serve

4to establish further liability upon the employer. Thus, we do not elect to create

new precedent giving credence to this novel argument.

IV. Conclusion.

The ALJ relied on Dr. Gabriel ’ s assessment that no additional harmful

change or injury occurred while Wood was employed by Metalsa. This

constituted substantial evidence supporting dismissal of Metalsa. Accordingly,

we affirm.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Wayne C. Daub

COUNSEL FOR APPELLEE,

METALSA AUTOMOTIVE USA:

Michael P. Neal

Zachary Chase Richards

SEWELL & NEAL PLLC

COUNSEL FOR APPELLEE,

DANA CORPORATION:

Stanley Shields Dawson

FULTON & DEVLIN LLC

COUNSEL FOR APPELLEE, WORKERS ’ COMPENSATION

BOARD:

Michael Alvey

COUNSEL FOR APPELLEE, HON. ROBERT L. SWISHER,

FORMER CHIEF ADMINISTRATIVE LAW JUDGE:

Not Represented by Counsel

5COUNSEL FOR APPELLEE, HON. DOUGLAS W. GOTT,

CHIEF ADMINISTRATIVE LAW JUDGE:

Not Represented by Counsel

6