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NOT TO BE PUBLISHED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,

ADMINISTRATRIX AND 

INDIVIDUALLY AS WIDOW OF 

RICHARD CARTER AND 

CUSTODIAL PARENT OF CADENCE 

CARTER; HONORABLE TONYA M.

CLEMONS, ADMINISTRATIVE

LAW JUDGE; AND WORKERS’ 

COMPENSATION BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
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MCNEILL, 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 chemicals while in the 

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

Silicones Corporation (Dow). Part of Mr. Carter’s job duties included cleaning 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-mortem examination report and Mr. Carter’s official death 

certificate reflected that his cause of death was 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 this 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 
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inferences from the evidence.” Bowerman v. Black Equipment Co., 297 S.W.3d

858, 866 (Ky. App. 2009) (citation omitted). Therefore, “appellate 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 must 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 Chemical 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 quotation 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 
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caused Mr. Carter’s death. In support of its defense, Dow submitted a report 

issued by Dr. Theron Blickenstaff. The 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 methyl chloride releases and the occupational 

disease. The evidence including Material Safety Data 

Sheet, IARC 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 the 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 affirming, 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 finder 

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 postmortem autopsy and death certificate. The record 

contains a list of chemicals present in the Dow plant at 

which Carter worked. A myriad of the chemicals either 
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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 the 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, the 

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, having 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.
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ALL CONCUR.

BRIEF FOR APPELLANT:

John S. Harrison 

Louisville, Kentucky 

BRIEF FOR APPELLEE:

Alan S. Rubin

Louisville, Kentucky