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RENDERED: APRIL 27, 2017
NOT TO BE PUBLISHED

§upreme Court of Beniuckg

2016-SC-000368-WC
ARMSTRONG COAL COMPANY, INC. APPELLANT

ON APPEAL FROM COURT OF APPEALS
CASE NO. 2015-CA-001545-WC
V. WORKERS’ COMPENSATION BOARD
NO. 14-WC-90179

NATHAN ATTEBURY; APPELLEES
HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE; AND
'WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIR.MING

An Adrninistrative Law Judge (ALJ) found that Nathan Attebury
developed toxic encephalopathy and is permanently totally disabled as a result
of exposure to toluene, a chemical in Krylon paint, while working for Armstrong
Coal Company, Inc. The Workers’ Compensation Board (the Board) aftirmed,
as did a divided panel of the Court of Appeals. On appeal to this Court,
Armstrong argues, as it did below, that the ALJ’s findings were not supported
by evidence of Substance. For the following reasons, we disagree and affirm.

I. BACKGROUND.
Attebury was born on June 8, 1981. He has a high school education and

his mine-foreman certification, and he has worked as a construction laborer, in

a clothing factory, and as an underground coalrniner. Approxirnately six

months after he started working for Armstrong, Attebury began to experience
headaches, dizziness, short-term memory loss, and confusion. His symptoms
progressiver worsened, and he stopped working in January 2014.

Attebury testified that he had previously suffered from seasonal affective
disorder, for which he took an anti-depressant, and from panic attacks,
anxiety, and headaches. Attebury also testified that he had been prescribed
Suboxone in order to wean himself from Lortab that he took following a neck
injury.

Attebury first sought treatment for his symptoms with Dr. Jayna Jones
in January 2014. Dr. Jones noted that Attebury complained of dizziness,
headaches, memory loss, social anxiety, occasional “blackout spells,” and
confusion. Attebury attributed his symptoms to the paint he was using at
work and stated that his symptoms improved when he was off work for any
length of time. Dr. Jones referred Attebury to Dr. Michael Mayron, a `
neurologist.

Dr. Mayron, who first treated Attebury on February 17, 2014, noted that
Attebury had neuropathy in his left arm and leg, tremors in both hands, and
severe memory impairment Following his examination and a review of medical
literature, Dr. Mayron made a diagnosis of toxic encephalopathy, which he
attributed to Attebury’s exposure to the chemical toluene, a component of the
Krylon spray paint Attebury used at work. Based on Attebury’s memory loss
and inability to perform multi-step tasks, Dr. Mayron assigned him a 49%

impairment rating. In his report and during his deposition, Dr. Mayron

2

referred to an article from the Annals of Neurology from June 1988 to support
his conclusions that Attebury’s condition was related to exposure to toluene.
During his deposition, Dr. Mayron stated that he had reviewed other articles,
which he did not have readily available. However, he supplied copies of those
articles to the court reporter after his deposition, We discuss the articles Dr.
Mayron relied on in more detail below.

Armstrong filed the report of Dr. Dennis O’Keefe, a neurologist who
performed an independent medical evaluation of Attebury at Armstrong’s
request. In his report, Dr. O’Keefe stated that Attebury complained of
depression, anxiety, headaches, and memory loss that became severe in
December 2013. Dr. O’Keefe’s examination revealed deficits in immediate
recall, attention, and calculation; an “essentially normal” ability to speak and
answer questions; and lightheadedness after two minutes of hyperventilation.
Dr. O’Keefe stated that two chemicals in Krylon paint could cause neurological
problems: xylene, which causes dizziness, lightheadedness, and other
symptoms; and N-hexane, which causes neuropathy in the extremities. He
noted that Attebury had no symptoms of extremity neuropathy and that
symptoms associated with xylene exposure generally resolve once exposure to
the chemical stops. Based on the preceding, Dr. O’Keefe concluded that
Attebury’s symptoms were not related to exposure to chemicals in Krylon but
to Attebury’s depression, which Dr. O’Keefe attributed to “claustrophobia

associated with” working in an underground coalmine.

Before the ALJ, Armstrong argued that Dr. Mayron’s opinion regarding
causation was not probative because he: had no history of Attebury’s prior
complaints of headaches; relied on literature that pertained “to a different type
of toluene exposure testing in a different type of injury;” and did not know how
much Krylon Attebury used, how he used it, how often he used it, or whether
Attebury had any other exposure to toluene. Armstrong also argued that the
amount of toluene Attebury was exposed to was below OSHA’s permissible
limits.

The ALJ disagreed with Armstrong and found as follows:

On the issue of causation both Dr. Mayron and Dr. O’Keefe have
provided an opinion. Both have independently researched the
effects of the Krylon paint used by the Plaintiff. Both have
concluded that the paint can cause neurological effects. From that
point their opinions diverge.

Dr. O’Keefe believes the paint can cause two different types of
neurological condition[s]. The first, primarily effecting the limbs,
the Plaintiff does not have. The second, according to Dr. O’Keefe,
is not permanent and its effects should resolve entirely when
exposure to the paint stops. Dr. O’Keefe affirmatively states the
Plaintiff does not have toxic encephalopathy, regardless of
causation. Dr. O’Keefe affirmatively states the Plaintiff has no
work-related condition.

Dr. Mayron states that one of the potential side effects of the
Krylon paint is toxic encephalopathy. This is the diagnosis he
makes for the Plaintiff. He states the toxic encephalopathy is
work-related. Dr. Mayron testified in his deposition that he
extensively reviewed the Krylon paint, particularly the toluene. It
can cause the toxic encephalopathy and it can cause all of the
Plaintiff"s neurologic symptoms. The damage is permanent. In
short, while I respect both physicians who provided an opinion
regarding causation I am more inclined to find the opinion of Dr.
Mayron persuasive. He is a treating physician with no known or
demonstrated bias. His is a very specific field and area of expertise
to which he devotes his practice, i.e. neurological conditions. He
has demonstrated the scholarly texts he relies upon. There is no

4

other known source of causation for the Plaintiff’s symptoms, as I
agree that the ADHD, anxiety or depression is not causing.them.

I am not persuaded by the Defendant’s argument that Dr. Mayron

had insufficient knowledge regarding the amount of toluene

exposure. The Plaintiff testified to me and related to Dr. Mayron

his exposure levels. That it was not measured in parts per milliliter

or some other scientifically exact amount is not decisive.

I find, based on the foregoing, that the Plaintiff does have toxic

encephalopathy and it is work-related.

Armstrong appealed to the Board specifically arguing for the first time
that Dr. Mayron’s opinion did not meet the requirements of Daubert and was
therefore unreliable. The Board affirmed, as did a divided panel of the Court of
Appeals.

II. STANDARD OF REVIEW.

If the party with the burden of proof is successful before the ALJ, the
question on appeal is whether the ALJ’s opinion was supported by substantial
evidence. Wo{f Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984);
Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). This Court will only
reverse the ALJ when he or she has overlooked or misconstrued controlling law
or so flagrantly erred in evaluating the evidence that it has caused gross
injustice. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). In
other words, the determinative question to be answered is Whether the ALJ's
finding “is so unreasonable under the evidence that it must be viewed as

erroneous as a matter of law.” Kentucky Revised Statute (KRS) 342.285; Ira A.

Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).

III. ANALYSIS.

Armstrong argues on appeal to this Court that the ALJ could not rely on
the opinion of Dr. Mayron because that opinion failed to meet the requirements
of Daubert v. Merrell Dow Pharrnaceuticals, 509 U.S. 579 (1993) as adopted and
applied in City of Owensboro v. Adams, 136 S.W.3d 446 (Ky. 2004). According
to Armstrong, “the ALJ, the Board, and the Court of Appeals each performed a
Daubert analysis, but each analysis focused on Dr. Mayron’s credentials rather
than on his methodologies,” and his methodologies are fatally flawed. We
disagree.

We begin by noting that Daubert applies to workers’ compensation
proceedings. Id. at 450. An ALJ, like a trial judge conducting a bench trial,
functions as both gatekeeper, admitting and excluding evidence as appropriate,
and as fact finder. Id. When applied in a jury trial, the Daubert analysis acts
as a guide for the judge to make decisions on whether to exclude from the
jury’s consideration evidence that is scientifically unreliable. ,Id. However,
when acting as both gatekeeper and fact finder, the ALJ, like the trial judge in
a bench trial, has greater discretion and may admit evidence that would be
excluded from a jury trial but then disregard that evidence when making a final
determination. Id. at 451. That discretion is not limitless and an ALJ, like a
trial judge, cannot completely abdicate his / her responsibility to make a
reliability determination. Id.

The list of factors an ALJ may consider when judging the reliability of an

expert opinion includes:

(1) whether the theory or technique can be and has been tested;

(2) whether the theory or technique has been subjected to peer
review and publication;

(3) the known or potential rate of error in using a particular
scientific technique and the existence and maintenance of
standards controlling the technique's operation; and

(4) whether the theory or technique has been generally accepted in
the particular field.

Toyota Motor Corp. v. Gregory, 136 S.W.3d 35, 39-40 (Ky. 2004), as amended
(June 14, 2004). However, the preceding list is neither exhaustive nor rigid.
“[A] court may consider one or more or all of the factors mentioned in Daubert,
or even other relevant factors, in determining the admissibility of expert
testimony. The test of reliability is flexible and the Daubert factors neither
necessarily nor exclusively apply to all experts in every case.” Johnson v.
Commonwealth, 12 S.W.3d 258, 264 (Ky. 2000).

It appears that Armstrong’s attack on Dr. Mayron’s opinion is four-fold.
First, Armstrong argues that the primary learned treatise Dr. Mayron relied on
relates toxic encephalopathy to exposure to toluene and that treatise is
irrelevant because it does not address occupational exposure. Second,
Armstrong argues that Dr. Mayron did not have a sufficient understanding of
Attebury’s exposure in order to make a causal connection. Third, Armstrong
argues that, when given the opportunity to supplement the record, Dr. Mayron
did so with documentation that indicates Attebury’s exposure to toluene was

within acceptable OSHA limits. Finally, Armstrong argues that the ALJ did not

set forth sufficient findings regarding the reliability of Dr. Mayron’s opinion.
We address each argument in turn below.

A. Dr. Mayron produced sufficient documentation to support his
opinion.

Armstrong is correct that the article from the Annals of Neurology which
Dr. Mayron referenced in his initial report and in his deposition only addresses
the effect that toluene has on toluene abusers. Furthermore, Armstrong is
correct that the article refers to observable changes in brain white matter
among those abusers, changes that Attebury does not have. However, other
articles1 relied on by Dr. Mayron indicate that chronic non-intentional
exposure to toluene can occur in workers in the painting industry.
Furthermore, the articles indicate that exposure at less than 200 ppm is
associated with headache, fatigue, and nausea, while exposure at 200 to 500
ppm is associated with loss of coordination, memory loss, and loss of appetite.
While Dr. Mayron may have referred only to the Annals of Neurology article in
his written report, he testified that he relied on a number of other articles and
provided those articles for review. Therefore, Armstrong’s argument that Dr.
Mayron’s opinion was not supported by sufficient documentation is not

persuasive.

 

1 The articles are from The Agency for Toxic Substances and Disease Registry, a
division of the U.S. Department of Health and Human Services; and Medscape
Reference: Drugs, Diseases & Procedures. We note that the Medscape articles, which
are fairly short, contain citations to numerous research articles and learned treatises.

8

B. Dr. Mayron’s understanding of Attebury’s exposure to toluene, while
not complete, was adequate.

Armstrong argues that Dr. Mayron’s opinion was unreliable because he
did not have a complete understanding of Attebury’s exposure to toluene. In
particular, Armstrong focuses on Dr. Mayron’s inability to set forth the “dose-
response relationship (that is, the relationship in which a change in amount,
intensity, or duration of exposure to a chemical is associated with a change in
risk of disease).”

Armstrong is correct that Dr. Mayron did not have a complete
understanding of the exact amount of toluene to which Attebury was exposed.
Armstrong is also correct that Dr. Mayron did not state with specificity what
the dose-response relationship to toluene exposure and toxic encephalopathy
is. However, “the test of reliability is flexible and the Daubert factors neither
necessarily nor exclusively apply to all experts in every case.” Johnson, 12
S.W.3d at 264.2

Here, Dr. Mayron did have a history that Attebury was repeatedly
exposed to toluene while performing his job in a confined space. Furthermore,
the ALJ found that Attebury “testified . . . and related to Dr. Mayron his

exposure,” a finding that Armstrong did not challenge via a petition for

 

2 We note that Armstrong relies, in part, on Adams v. Cooper Industries, Inc.,
CIVA 03-476 JBC, 2007 WL 2219212 (E.D. Ky. July 30, 2007) for the proposition that
an expert’s opinion must include evidence of suiiicient exposure to have caused a
plaintiffs condition, or a dose-response relationship. However, we note that the
federal district court also stated that “‘precise’ or ‘exact’ information concerning dosage
or the dose-response relationship” is not necessary. Id. at *7.

reconsideration. Finally, as noted above, documentation attached to Dr.
Mayron’s deposition indicates that chronic toluene exposure can result in
headache, fatigue, nausea, and loss of coordination, memory, and appetite.
Thus, the record contains sufficient evidence to support the ALJ’s finding that
Dr. Mayron had an adequate understanding of Attebury’s exposure to toluene
and the impact of that exposure.

C. Implications of OSHA Regulations.

Armstrong argues that Dr. Mayron’s opinion was unreliable because
documents attached to his deposition indicate that OSHA has set a permissible
exposure limit of 200 ppm averaged over an eight-hour day. According to
Armstrong, Attebury’s “failure to present any evidence that he was exposed to
toluene at levels above the OSHA [permissible exposure limit], and his failure to
produce any evidence that occupational exposure to toluene within the OSHA
[permissible exposure limit] can cause toxic encephalopathy” is fatal to
Attebury’s claim. We disagree for three reasons.

Initially, we note that Armstrong states that a can of Krylon paint
contains “20 ppm of toluene” per can and cites to its post-hearing brief as
authority for that assertion. Armstrong’s post-hearing brief does cite to a web
page containing information about the contents of Krylon paint. However,
Armstrong did not enter that information into the record; did not move to
extend proof time past the hearing; and, although Armstrong cited to a federal

district court case from the Southern District of California3 indicating that a

 

3 Shalaby v. Bemzomatic, 281 F.R.D. 565, 570 (S.D. Cal. 2012).
10

“[c]ourt can take judicial notice of MSDS4 sheets [sic],” Armstrong did not move
the ALJ to take judicial notice of the web page’s contents. Thus, Armstrong’s
argument that, if Attebury had used four cans of Krylon paint per shift he
would have been exposed to only a “maximum of 80 ppm” of toluene per shift,
lacks an evidentiary basis.

Second, Armstrong argues that there is no evidence indicating that
exposure to less than the permissible exposure limit can cause toxic
encephalopathy. However, Dr. Mayron testified that Attebury has toxic
encephalopathy and that condition is related to Attebury’s exposure to toluene.
Thus, while Armstrong may not believe that evidence is reliable, there is
evidence of the connection.

Third, Armstrong argues that because Attebury’s exposure to toluene
was allegedly below OSHA permissible exposure limits, Dr. Mayron’s opinion
must be discredited. Certainly the ALJ could have discounted Dr. Mayron’s
opinion and found for Armstrong because of the absence of such evidence, but
he was not compelled to do so. Furthermore, Armstrong has cited us to no
case law that frees an employer from workers’ compensation liability because
the employer complied with OSHA regulations Compliance with OSHA
' regulations may have significant relevance in a safety violation claim but such

compliance is not dispositive as to causation or liability.

 

4 Material Safety Data Sheet.

11

D. Sufficiency of the ALJ’s finding of reliability.

Finally, Armstrong argues that the ALJ, the Board, and the majority of
the Court of Appeals focused on the wrong factors in evaluating the reliability
of Dr. Mayron’s opinion. According to Armstrong, all three looked to Dr.
Mayron’s credentials rather than “the methodologies Dr. Mayron employed in
reaching his opinion.” We disagree.

In City of Owensboro, the ALJ found that Adams was totally disabled as a
result of bilateral trigeminal neuralgia that Adams developed following
exposure to methane. 136 S.W.3d at 448. As Armstrong does here, the City of
Owensboro challenged the reliability of the opinion of causation by Adams’s
physician. In his opinion, the ALJ stated as follows:

In this instance, the vitae of Dr. Van Loveren [sic] was introduced
through his testimony. His qualification leaves no doubt that he is
an experienced and recognized expert in the treatment of _
trigeminal neuralgia. Additionally, he testified that he had treated
over 1000 cases in his career. He further explained that the
situation presented by Mr. Adams was indeed unique. By reviewing
diagnostic testing, he eliminated other potential causes, including
the most common, multiple sclerosis, as a cause of Mr. Adams'
condition. He further testified that Mr. Adams was exposed to a
toxic substance, methane, which was also toxic to nerves. Having
eliminated other potential causes of the condition and noting the
onset of the preliminary stages of the condition following the 1987
injury and exposure, Dr. Van Loveren [sic] concluded that it was a
probable cause of the Plaintiff s condition. I am persuaded by his
expertise and analysis, in conjunction with the scientific testing done
to eliminate other potential causes, that the exposure to methane in
1987 was the cause of the Plaintiff"s trigeminal neuralgia and that
Dr. Van Loveren's [sic] opinion comports with the requirements of
KRE 702.

Id. at 453 (emphasis in original).

12

Here, the ALJ found as follows:

Dr. Mayron states that one of the potential side effects of the
Krylon paint is toxic encephalopathy. This is the diagnosis he
makes for the Plaintiff. He states the toxic encephalopathy is work-
related. Dr. Mayron testified in his deposition that he extensively

. reviewed the Krylon paint, particularly the toluene. It can cause
the toxic encephalopathy and it can cause all of the Plaintiff’s
neurologic symptoms. The damage is permanent. In short, while I
respect both physicians who provided an opinion regarding
causation I am more inclined to find the opinion of Dr. Mayron
persuasive. He is a treating physician with no known or
demonstrated bias. His is a very specific field and area of expertise
to which he devotes his practice, i.e. neurological conditions. He
has demonstrated the scholarly texts he relies upon. There is no
other known source of causation for the Plaintiff's symptoms, as I
agree that the ADHD, anxiety or depression is not causing them.

l am not persuaded by the Defendant’s argument that Dr. Mayron
had insufficient knowledge regarding the amount of toluene
exposure, The Plaintiff testified to me and related to Dr. Mayron
his exposure levels. That it was not measured in parts per milliliter
or some other scientifically exact amount is not decisive.

I find, based on the foregoing, that the Plaintiff does have toxic
encephalopathy and it is work-related.

With the exception that he did not specifically state that Dr. Mayron’s

opinion complied with Kentucky Rule of Evidence 702, the opinion of the ALJ

herein is consistent with the ALJ’s opinion in City of Owensboro. Therefore, we

discern no deficiency in this ALJ’s opinion or award.

IV. CONCLUSION.

Having reviewed the record and the arguments of the parties, we affirm

the Court of Appeals.

All sitting. Minton, C.J.; Cunningham, Hughes, Keller, Venters and

Wright, JJ., concur. VanMeter, J., concurs in result only.

13

COUNSEL FOR APPELLANT:

William Messer
Miller Wells PLLC

COUNSEL FOR APPELLEE:

Jerry P. Rhoads
Rhoads & Rhoads, P.S.C.

14

