RENDERED: MAY 20, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky
Court of Appeals

NO. 2021

- CA

- 0393

- WC

DOW SILICONES CORPORATION APPELLANT

v. PETITION FOR REVIEW OF A DECISION

OF THE WORKERS ’ COMPENSATION BOARD

ACTION NO. WC

- 18

- 00355

RICHARD CARTER (DEC ’ D); ERICA CARTER AS CUSTODIAL PARENT AND/OR LEGAL GUARDIAN OF E ’ RIYAH CARTER; PATIENCE MILLER

- CARTER

, ADMINISTRA TR IX AND INDIVIDUALLY AS WIDOW OF RICHARD CARTER AND CUSTODIAL PARENT OF CA DEN CE CARTER; HONORABLE TONYA M

. CLEMONS

, A DMINISTRATIVE LAW JUDGE ; AND WORKERS ’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

**   **  **

BEFORE: LAMBERT, M C NEILL, AND TAYLOR, JUDGES.- 2

-

M C NEILL, JUDGE: An application for Resolution of Claim

- Occupational

Disease was filed on behalf on the decedent, Richard Carter ( Mr. Carter ), by his

wife, Patience Miller

- Carter (Ms. Carter), on March 6, 2018. The claim alleged

that Mr. Carter was entitled to workers’ compensation benefits having contracted

adenocarcinoma ( lung cancer) as a result of his exposure to chemical s while in the

course and scope of his employment with his former employer, Appellant, Dow

Silicone s Corporation (Dow). Part of Mr. Carter’s job duties included clea ning tall

chemical vats. The stated last date of injurious exposure was February 11, 2017.

Mr. Carter passed away on May 11, 2017. He was survived by his wife and two

children. A post

- m ortem examination report and Mr. Carter’s official death

certificate reflected that his cause of death w as adenocarcinoma of the lung.

The administrative law judge (ALJ) issued a fourteen

- paged opinion

and order on December 17, 2020 , awarding benefits to Mr. Carter’s estate, widow,

and children

. Dow petitioned the ALJ for reconsideration

, which was denied

.

Dow then appealed to the Workers’ Compensation Board (Board), which

unanimously affirmed the ALJ’s determination. Dow now appeals to thi s Court as
a matter of right . For the following reasons, we affirm.

STANDARD OF REVIEW

The ALJ has “the sole discretion to determine the quality, character,

weight, credibility, and substance of the evidence, and to draw reasonable- 3

-

inferences from the evidence.” Bowerman v. Black Equipment Co.

, 297 S.W.3d

858, 866 (Ky. App. 2009) (citation omitted). Therefore, “ a ppellate courts may not

second

- guess or disturb discretionary decisions of an ALJ unless those decisions

amount to an abuse of discretion.” Id

. (citing Medley v. Bd. of Educ., Shelby

County

, 168 S.W.3d 398, 406 (Ky. App. 2004) ). “If the reviewing court

concludes the rule of law was correctly applied to facts supported by substantial

evidence, the final order of the agency mu st be affirmed.” Kentucky

Unemployment Ins. Comm ’ n v. Cecil

, 381 S.W.3d 238, 246 (Ky.

2012) (citing Brown Hotel Co. v. Edwards

, 365 S.W.2d 299

, 302 (Ky. 1962) ).

“ Substantial evidence means evidence of substance and relevant consequence

having the fitness to induce conviction in the minds of reasonable men.” Smyzer v.

B.F. Goodrich Chem ical Co.

, 474 S.W.2d 367, 369 ( Ky. 1971) (citation omitted).

“ However, a reviewing court is entitled to substitute its judgment for that of the

agency where the agency ’ s ruling is based on an incorrect view of the law.”

Fresenius Medical Care Holdings, Inc. v. Mitchell , 507 S.W.3d 15, 19 (Ky. App.

2016) (internal qu otation marks and citation omitted). With these standards in

mind, we now turn to the merits of the present case.

ANALYSIS

Dow argues that the reports of experts, Dr . George Nichols and Dr.

Robert Sklaroff

, do not constitute substantial evidence that chemical exposure- 4

-

caused Mr. Carter’s death. In support of its defense, Dow submitted a report

issued by Dr. Theron Blickenstaff. T he ALJ addressed the evidence presented by

these experts in its opinion and order

, and most succinctly in its order denying

Dow’s petition for reconsideration as follows:

Consistent with the Kentucky Supreme Court’s decision in Miller v. Tema Isenmann, Inc ., 542 S.W.3d 265 (Ky. 2018), the Opinion identifies the evidence relied upon that demonstrated a causal connection between the conditions under which Mr. Carter’s work as a maintenance worker was performed in an environment with m e thyl chloride releases and the occupational disease. The evidence including Material Safety Data Sheet, I ARC Classification Definitions, data on chemicals at Defendant’s plant, and medical records/ reports led to the finding that the opinions of Dr. Nichols and Dr. Sklaroff were the most credible and persuasive.

The Opinion sets out the reasoning behind th e finding that Plaintiff met her burden of proof to establish that Mr. Carter’s exposure to chemicals such as methyl chloride in his employment with Defendant caused the occupational disease under relevant and applicable law.

In its opinion affirmin g , the Board provided the following:

The ALJ was confronted with conflicting evidence and found that the evidence of Ms. Carter, Dr. Nichols, and Dr. Sklaroff were more persuasive than the testimony of Dr. Blickenstaff. This was her prerogative as the fin der of fact. In making her determination, the ALJ noted it is undisputed Carter worked in the Utilities Department for Dow until February 11, 2017. It is undisputed that he died from cancer of the lungs as evidenced by the post

mortem autopsy and death certificate. The record contains a list of chemicals present in the Dow plant at which Carter worked. A myriad of t he chemicals either- 5

- are known to cause or are suspected of causing cancer in humans. Carter’s job duties included cleaning vats of chemicals. While he may have worn [personal protective equipment] , there is no indication this prevented any exposure to th e chemicals in the plant. Dr. Nichols reviewed the list of chemicals in the plant and their carcinogenic ratings and opined Carter suffered an injurious exposure to an occupational source, and his fatal lung cancer can be traced to that source at his work place. Dr. Sklaroff concurred with his opinion.

As a result of the foregoing proof, the ALJ determined that, pursuant to the mandates of [Kentucky Revised Statute] 342.0011, Carter met his burden of proving a causal connection between the conditions under which the work is performed and the occupational disease, which she determined followed as a natural incident to the work as a result of the employment, and which can be fairly traced to the employment as the proximate cause. We believe the evidence from Ms. Carter, Dr

. Sklaroff, and Dr. Nichols constitute substantial evidence supporting the ALJ’s ultimate decision. Therefore, t he decision will not be disturbed on appeal.

We agree that the ALJ ’s opinion was based on substantial evidence ; i.e.
, “ evidence

of substance and relevant consequence having the fitness to induce conviction in

the minds of reasonable men.” Smyzer

, 474 S.W.2d at 369 (citation omitted).

Therefore, h aving reviewed the record and the law, we cannot say that the ALJ

abused its discretion here

.

CONCLUSION

For the foregoing reasons, we hereby affirm the Board, affirming the

decision of the ALJ.- 6

- ALL CONCUR

.

BRIEF FOR APPELLANT:

John S. Harrison Louisville, Kentucky BRIEF FOR APPELLEE:

Alan S. Rubin Louisville, Kentucky