IMPOR 'ANT NOTICE NOT TO BE PUBLISHED OPINION

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1 IMPOR 'ANT NOTICE NOT TO BE PUBLISHED OPINION THIS OPINIONIS DESIGNA TED "NOT TO BE PUBLISHED. " PURSUANT TO THE RULES OF CIVIL PROCEDUREPROMULGATEDBY THE SUPREME COURT, CR (4) (c), THIS OPINION IS NOT TO BE PUBLISHEDAND SHALL NOTBE CITED OR USED ASAUTHORITYINANY OTHER CASE INANY COURTOF THIS STA TE.

2 RENDERED : March 17, 2005 NOT TO BE PUBLISHED,$uPreme Caurf of itvk 2004-SC-0399-WC LARRY SHOCKEY APPELLANT V APPEAL FROM COURT OF APPEALS 2003-CA-2720-WC WORKERS' COMPENSATION BOARD NOS & INCO ALLOYS ; SPECIAL METALS ; HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD APPELLEES MEMORANDUM OPINION OF THE COURT AFFIRMING An Administrative Law Judge (ALJ) determined that the claimant failed to prove that he suffered from asbestosis and dismissed his application for workers' compensation benefits. The Workers' Compensation Board (Board) and the Court of Appeals affirmed. Appealing, the claimant continues to assert that the ALJ erred by failing to consider what he maintains was uncontradicted medical evidence that his lymphosarcoma was caused, at least in part, by his exposure to asbestos. We affirm. The claimant was born in After serving in the military, he worked as a laborer in a coke plant for about two years and was exposed to coal and other dusts. In 1972, he began working as a laborer for Inco Alloys. Later, he worked for its successor, Special Metals. He testified that he held a number of different jobs over the years and that he was exposed to asbestos and other respirable dusts on a daily basis, although the nature of the exposure varied with each job. He retired in December, 2000, due to

3 pain from a 1980 lower back injury. He stated that he had smoked 1 '/2 packs of cigarettes daily for 40 years. On August 26, 2002, the claimant filed an application for benefits in which he alleged an occupational lung disease due to his exposure to "asbestos, various metals and compounds, and/or other noxious dusts, fumes, and/or irritants." The claimant introduced a medical report from Dr. Myers, who examined him on July 15, 2002, and diagnosed "ASBESTOSIS, PARENCHYMAL 1/2 t/q all zones ;" "LYMPHOSARCOMA RIGHT CERVICAL NODE,? related to asbestosis ;" and "COPD, Class I." Pulmonary testing revealed a greatest FVC value of 98% of the predicted normal and a FEV1 value of 85% of the predicted normal. Dr. Myers indicated that an unspecified "disease or condition" was related to the claimant's work environment and noted that the combination of asbestos exposure and cigarette use is highly carcinogenic. The claimant also introduced a report from Dr. Powell, who reviewed an x-ray taken on February 11, Dr. Powell found parenchymal abnormalities that were consistent with category 1/1 pneumoconiosis. He also found parenchymal and hilar calcification from a previous infection. On October 21, 2002, Drs. Joyce and Mallampalli performed the university evaluation. The claimant gave a history of working in a metal fabrication plant since 1972, stating that his work involved checking and analyzing metals. He described using sheets of asbestos to wrap hot ingots and stated that he was around the material most of the time that he worked for the company. He described heavy dust exposure and stated that it frequently contained asbestos fibers. He stated that he was not required to wear any type of respirator and that he was not aware of the exposure until the final two

4 years of his work. The claimant also gave a history of chewing tobacco and of smoking about 1 '/2 packs of cigarettes daily for 35 years before quitting in 2002, when he was diagnosed with cancer in a cervical lymph node. Dr. Mallampalli noted that the report of a previous disability evaluation indicated that the type of cancer was lymphosarcoma and that the claimant underwent post-operative radiation therapy. The claimant's chest x-ray was evaluated by Dr. Joyce, a B-reader. She found it to contain no parenchymal abnormalities that were consistent with pneumoconiosis and classified it as category 0/0. She noted bilateral calcified hilar lymph nodes, scattered calcified granuloma, and a calcified nodule in the left upper lobe. Pulmonary function studies yielded a greatest FVC value of 93.7% of the predicted normal and FEV1 value of 80.7% of the predicted normal. They revealed a mild to moderate obstructive ventilatory defect with air trapping. Listing the diagnoses, Dr. Mallampalli noted that there was no evidence of asbestos-related lung disease, based on a 13-reader's report. Dr. Mallampalli diagnosed chronic obstructive pulmonary disease and noted "History of?lymphoid malignancy." Dr. Mallampalli thought that the claimant's condition was not the result of exposure in his work environment based upon the information that was available. The doctor noted, however, that asbestos exposure and cigarette smoking were known to increase the risk of certain lung malignancies and that a causal relationship with his cancer could not be excluded entirely. Likewise, Dr. Mallampalli stated that the claimant's pulmonary impairment was not caused in part by factors in his work environment. Dr. Mallampalli explained that the type of pulmonary abnormalities that were seen were more likely due to the claimant's years of cigarette smoking ; however, his prolonged exposure to dusty conditions in the workplace could not be excluded as a

5 factor contributing to his chronic cough and sputum production. He should avoid continued dust exposure because that could be expected to exacerbate his condition. Although noting that Drs. Myers and Powell had good reputations, the AU determined that there was no specific reason to disregard the clinical findings and opinions of the university evaluators. Based on their opinions, the AU concluded that the claimant failed to prove that he suffered from asbestosis. In a petition for reconsideration, the claimant maintained that the record contained uncontradicted evidence that his injurious exposure was the cause of his disease. The petition was overruled, after which the claimant appealed. The claimant's argument on appeal is that uncontradicted medical evidence establishes that his cancer was caused, at least in part, by his occupational dust exposure. He asserts that Dr. Myers attributed his cancer to his occupational dust exposure and that Dr. Mallampalli could not rule out asbestos exposure as a cause of his "lung cancer." On that basis, he maintains that a finding in his favor was compelled. The burden was on the claimant to prove every element of his claim, including the fact that his cancer probably was caused by his work environment. See Markwell & Hartz, Inc. v. Pigman, 473 S.W.2d 842 (Ky. 1971). Having failed to convince the ALJ, his burden on appeal was to establish that the decision was unreasonable in view of the overwhelming evidence in his favor. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). It is apparent that the claimant failed to meet that burden. Dr. Myers testified that the claimant suffered from asbestosis, that lymphosarcoma was found in one of his cervical lymph nodes and was questionably related to the asbestosis, that an unspecified "disease or condition" was related to his work environment, that the combination of asbestos exposure and cigarette use was

6 highly carcinogenic, and that his pulmonary impairment was caused by his work environment. However, KRS (2) provides that the university evaluator's clinical findings and opinions "shall be afforded presumptive weight" and that the burden is on the opponent to overcome such findings and opinions. Testifying as the university evaluator, Dr. Mallampalli determined that there was "[n]o radiographic evidence of asbestos-related lung disease" and that the claimant's pulmonary impairment was probably due to cigarette smoking rather than his work environment. Dr. Mallampalli acknowledged that asbestos exposure and cigarette smoking were known to increase the risk of certain lung malignancies and also that a causal relationship between the claimant's asbestos exposure and the cancer found in his cervical lymph node could not be excluded entirely. The claimant alleged an occupational lung disease. Asbestosis and lung cancer are different conditions. No physician testified to a diagnosis of lung cancer. Dr. Myers diagnosed asbestosis and questioned whether the lymphosarcoma found in the claimant's cervical lymph node might be due to his exposure to asbestos. Later in the report, he stated that an unspecified "disease or condition" was work-related. Although Dr. Mallampalli acknowledged that a causal relationship could not be excluded entirely, no physician testified that such a relationship was probable. Therefore, despite Dr. Myers' testimony that a combined exposure to asbestos and cigarette smoking was highly carcinogenic and despite Dr. Mallampalli's testimony that such a combined exposure was known to increase the risk of certain lung malignancies, the evidence would not have supported much less compelled a finding that the claimant had a lung malignancy, a finding that the cancer found in his lymph node resulted from such a

7 malignancy, or a finding that the cancer found in his lymph node was caused by his work environment.. The decision of the Court of Appeals is affirmed. All concur. COUNSEL FOR APPELLANT : Leonard Joseph Stayton P.O. Box 1386 Inez, KY COUNSEL FOR APPELLEE, INCO ALLOYS : William Bryan Hubbard Clark Ward World Trade Center 333 W. Vine Street, Ste Lexington, KY COUNSEL FOR APPELLEE, SPECIAL METALS : Sherri Porter Brown Ferreri & Fogle 203 Speed Building 333 Guthrie Green Louisville, KY 40202

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