Johnson v. Nobel, 071219 KYWC, 201792808

Docket Nº:201792808
Case Date:July 12, 2019
No. 201792808
Kentucky Workers Compensation
Commonwealth of Kentucky Workers’ Compensation Board
July 12, 2019
         APPEAL FROM HON. BRENT E. DYE, ADMINISTRATIVE LAW JUDGE.           DISTRIBUTION: PETITIONER/PRO SE: MS KIMBERLY JOHNSON           COUNSEL FOR RESPONDENT: HON RONALD POHL           BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.           OPINION & ORDER DISMISSING           HON. FRANKLIN A. STIVERS, MEMBER WORKERS’ COMPENSATION BOARD          Kimberly Johnson (“Johnson”), pro se, seeks review of the January 18, 2019, Opinion & Order of Hon. Brent E. Dye, Administrative Law Judge (“ALJ”) dismissing her claim against Dyno Nobel for an occupational disease and a related psychological injury. Johnson also appeals from the February 21, 2019, Order denying her petition for reconsideration and ordering various documents attached to her petition for reconsideration stricken from the record.[1]          On appeal, Johnson expresses her dissatisfaction with the ALJ’s decision asserting the decision is wrong and the record contains false testimony. In support of her assertion, in her brief and subsequent miscellaneous document filed on July 5, 2019, Johnson generally cites to facts which she contends cause the ALJ’s decision to be erroneous. Because Johnson failed to timely appeal from the ALJ’s decision, we sua sponte dismiss her appeal. However, we will attempt to address her concerns raised on appeal.          FACTUAL BACKGROUND          Johnson filed a Form 102 alleging she developed Rocky Mountain spotted fever (“RMSF”) as a result of a tick bite on July 21, 2016, while working for Dyno Nobel. Johnson subsequently amended her claim to assert the occupational disease she contracted as a result of the tick bite caused a psychological injury. By order dated August 17, 2018, the ALJ granted Johnson’s motion to amend.          Johnson testified at a July 30, 2018, deposition and at the September 26, 2018, deposition which the parties agreed would be conducted with the ALJ present in lieu of a hearing.[2] Johnson testified she had been an employee of Dyno Nobel since January 24, 2001. On the date she was bitten by the tick, she had been assigned to another building “running extruder #3.” She testified that because she felt something in her head she reached into her hair and pulled out a tick. Johnson burned the tick and reported the incident to her supervisor. She also reported it to another employee who told her ticks were everywhere in the building. After the co-worker said this, she turned and saw several ticks on the door behind her. Johnson continued to work after she was bitten. Sometime after experiencing the tick bite, her legs turned purple from the waist down. She also developed sinus problems, body aches, general fatigue, and her “kidneys quit putting out.” She testified the RMSF reoccurs every three months. As a result of her physical symptoms, Johnson maintained she developed anxiety and Attention Deficit Disorder (“ADD”). She also “swelled forty pounds.” The test for RMSF was positive, but the test for Lyme disease was negative.          Donna Wellborn (“Wellborn”), a nurse practitioner initially treated Johnson with Doxycycline, which caused her to throw up. Johnson was treated by several doctors including Dr. Jeffrey Reeves, an infectious disease physician. She takes Valium for panic attacks and Adderall for ADD. Because of the recurring RMSF, her fingers are weak and function poorly, her toes are purple, and she has developed vasculitis. Johnson is unable to lift or engage in any type of physical activity. She believes the vasculitis “kicked in” due to the RMSF. The vasculitis manifests in the form of blisters on her arm, face, ear, hands, and feet. The blisters eventually pop. Although Wellborn’s medical records reveal Johnson experienced subsequent tick bites, she denied the accuracy of the record as she insisted she has only experienced one tick bite in her life. She also denied ticks were near her house as the house, the areas around the house, and her body have all been sprayed.          Johnson submitted numerous reports from Dr. David Changaris. Dyno Nobel submitted the records of Dr. Reeves, Baptist Health Medical Group Family Medicine, and the medical reports and the deposition of Dr. Ellen Ballard.          In the January 18, 2019, Opinion & Order, the ALJ provided the following findings of fact and legal conclusions:
Johnson is asserting a work-related tick bite caused her to contract RMSF. The ALJ must determine whether the alleged acute exposure/trauma (the tick bite) is work-related, and, if so, whether it caused a permanent harmful change. After reviewing the medical evidence, as well as the testimony, the ALJ finds Johnson did not meet her burden. Johnson did not prove the acute exposure/trauma (the tick bite) was work-related and occurred in her employment’s course and scope.
The ALJ finds Johnson did not experience an occupational disease injury, including a temporary one, and prejudicially dismisses her claim. The evidence’s totality supports this finding. Dyno Nobel does not have any liability.
The initial inquiry is not whether the tick bite occurred on Dyno Nobel’s premises, or while Johnson performed her job duties, but, rather, whether the tick that bit Johnson came from her Dyno Nobel employment. It is moot whether the actual bite occurred on Dyno Nobel’s premises, or at Johnson’s personal residence, as long as Johnson’s job caused tick exposure and this exposure produced the bite. Therefore, Johnson’s RMSF is compensable, even if the actual tick bite occurred off Dyno Nobel’s premises, as long as the tick came from Dyno Nobel.
As a preliminary matter, the ALJ, pursuant to KRE 201, is taking judicial notice that ticks are prevalent outdoors throughout Kentucky. This is an adjudicative fact that, pursuant to KRE 201(b)(1)-(2), is: “(1) [g]enerally known within…the county in which the venue of the action is fixed; or (2) [c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonable be questions.” The ALJ is not relying on his personal knowledge or experience. See Commonwealth. v. Howlett, 328 S.W.3d 191, 193 (Ky. 2010); KRE 201.
         The ALJ is also inferring this fact, because Johnson lives in Kentucky, testified she had not recently traveled outside the state immediately before July 21, 2016, and Dr. Ballard opined Johnson’s tick bite and exposure did not occur from her Dyno Nobel employment. Dr...

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