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                                                   RENDERED: APRIL 27, 2017


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                             2016-SC 000368-WC
                                      0
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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

                                 .AFFIRMING

      An Administrative Law Judge (AW) 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) affirmed,

as did a divided panel of the Court of Appeals. On appeal to this Court,

Armstrong argues, as it did below; that the AW'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 schciol education and

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

a clothing factory, and as an underground coalminer. Approximately six
months after he started working for Armstrong, Attebury began to experience

headaches, dizziness, short-term me:mory loss, and confusion. His symptoms

progressively 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 tlJ.at 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 ne-µropathy 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 Attebucy used at work. Based on Attebucy's memory loss

and inability to perform multi-step tasks, Dr. Mayron assigned him a 49%

i~pairment 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 no,rmal" 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 cause.s dizziness, lightheadedness, and other

symptoms; and N-hexane, which causes neuropathyin 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 ih Krylon but

to Attebury's depression, which Dr. O'Keefe attributed to "claustrophobia

associated with" working in an underground coalmine.




                                         3
          Before the AW, 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 AW 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 rc,solve entirely when
      exposure to th,e 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
      Plaintiffs 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 Plaintiffs 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 AW, the

question on appeal is whether the AW's opinion was supported by substantial

evidence. Wolf 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 AW 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 AW'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.

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




                                        5
                                  III. ANALYSIS;

       Armstrong argues on appeal to this Court that the AW could not rely on

the opinion of Dr. Mayron because that opinion failed to meet the requirements

of Daubert v. Merrell Dow Phannaceuticals, 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 AW, 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 AW, 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 AW, 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 AW, 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:

                                        6
      (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 lmown 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 AW did not



                                        7
 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. Mayroh 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

articles 1 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 Med.scape
Reference: Drugs, Diseases & Procedures. We note that the Med.scape 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     ahistory that Attebury was repeatedly
exposed to toluene while performing his job in a confined space. Furthermore,

the AW 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 sufficient exposure to have caused a
plaintiff's 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.




                                            9
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 AW'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 lev.els 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.

      Ihitially, 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


      a Shalaby v. Bemzomatic, 281 F.R.D. 565, 570 (S.D.   ca1: 2012).
                                        10
  "[c]ourt can take judicial notice of MSDS4 sheets [sic]," Armstrong did not move

 the AW 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 AW 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 bµt such

 compliance is not dispositive as to causation or liability.




       • Material Safety Data Sheet.

                                         11
D.     Sufficiency of the ALJ's finding of reliability.

       Finally, Armstrong argues that the AW, 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 lool-!:ed to Dr.

Mayron's credentials rather than "the methodologies Dr. Mayron employed in

reaching his opinion." We disagree.

       In City of Owensboro, the AW 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 AW 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 Plaintiffs condition. I an:,. 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 qfthe Plaintiffs 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 AW 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 Plaintiffs
      neU:rologic 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 Plaintiffs 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.

      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 AW

herein is consistent with .the AW's opinion in City of Owensboro. Therefore, we

discern no deficiency in this AW'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
