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NOTTDBEPUBLISHED-OPINION

THISOPINIONISDESIGNATED "NOTTOBE
PUBLISHED. " PURSUANTTO THERULES OF

CITIIL PROCEDUREPROHULGATEDBYTHE SUPREMECOURT, CR 76.28 (4) (c), THIS OPINION ISNOTTOBEPUBLISHEDANDSHALLNOTBE CIIED OR USEDAS AUTHORITYINANYOTHER CASE-INANYCOURTOFTHISSTATE.
RENDERED: NOVEMBER22, 2006 NOTTO BE PUBLISHED
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2006-SC-000132-WC
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JAMES E. TUSSEY, DECEASED,
BILLY TUSSEY, ADMINISTRATOR APPELLANT

APPEAL FROM COURT OFAPPEALS
V. 2005-CA-000846-WC
WORKERS' COMPENSATION NO. 04-WC-00139

COOK FAMILYFOODS, LTD., AND HONORABLE JAMES L. KERR, ADMINISTRATIVE LAW JUDGE, APPELLEES
MEMORANDUM OPINION OF THE COURT AFFIRMING
KRS 342.035(3) prohibits compensation for a worker's death if it is caused by an unreasonable failure to follow competent medical advice. An Administrative Law Judge (ALJ) dismissed a claim for death benefits afterfinding that James Tussey failed to follow competent medical advice, that his behavior was unreasonable, and that it caused his death. The Workers' Compensation Board (Board) and the Court of Appeals affirmed. Nonetheless, the administrator of his estate continues to assert that there was no substantial evidence of an unreasonable failure to follow competent
medical advice and no substantial evidence that such a failure caused Tussey's death. Convinced that the ALJ's decision was reasonable and adequately supported by the evidence, we affirm.
Tussey twisted his right knee on December 21, 2001, while working, and sought treatment from Dr. T. Robert Love, an orthopedic surgeon. Dr. Love recommended arthroscopic surgery, and Tussey underwent the procedure on January 8, 2002. On January 14, 2002, he died at King's Daughters' Medical Center. His death certificate listed a pulmonary embolism as being the cause of death. The administrator of Tussey's estate filed an application for death benefits, asserting that his death resulted from the work-related injury. The employer defended the claim on the ground that Tussey's death resulted from his unreasonable failure to follow competent medical advice.
The employer submitted a deposition and affidavit from Wilda McDaniel, a registered nurse and office manager for Dr. Love's practice; a deposition and affidavit from Nanci Davis, a medical assistant in the practice; and a deposition and medical records from Dr. Love. The administrator cross-examined the employer's witnesses and submitted some medical records from Dr. Love.
Ms. McDaniel testified that an "op consent" form listed the risks and potential complications of Tussey's procedure, among which were the risk of a blood clot forming and death. Before he underwent the procedure, Dr. Love discussed it with him, and they signed the form. Dr. Love then had her review the form with Tussey. After he read it, she asked if he understood the risks and potential complications. When he confirmed that he did, she had him initial the form and then initialed and dated it herself.
It was sent to King's Daughters' with his chart. She explained that another set of initials appearing on the form with the date and time "1/8/02 12:40" indicated that a nurse at the hospital had reviewed the form with him again before the surgery.
Ms. Davis's testimony and notes in Tussey's medical records indicated that on
January 11, 2002, she had a telephone conversation with a woman who reported that
Tussey was experiencing calf pain. She advised both the caller and Tussey, himself,
that the situation was serious; explained the danger that a blood clot had formed and
would travel to the heart and lungs or brain, causing him to die; and advised them that
he should undergo an ultrasound exam immediately. She put the call on hold and
arranged forthe test to be performed at Our Lady of Bellefonte Hospital as soon as
Tussey arrived. He indicated that he would arrange for a ride to the hospital.
On January 14, 2002, a representative of Our Lady of Bellefonte Hospital
informed Ms. McDaniel that Tussey had been brought to the hospital that morning and
had died of a pulmonary embolism. She testified that she inquired .about the outcome
of the ultrasound and was informed that hospital records did not indicate that he
appeared for the test.
Dr. Love confirmed Ms. McDaniel's testimony regarding the procedure that he follows with every patient for discussing the risks and benefits of a proposed surgery and obtaining the patient's consent. He testified that calf tenderness is "a cardinal sign of a blood clot." Because such complaints are very serious, his office always arranges for an emergency ultrasound. Dr. Love testified that had Tussey appeared forthe test and been diagnosed with a blood clot in his leg, he would have admitted him to the hospital and prescribed medication that would have significantly decreased the risk of a pulmonary embolism. Although he acknowledged that the medication would not have eliminated the possibility of an embolism altogether, he stated that he had never had a patient die from an embolism due to a post-surgical blood clot in 17 years of practice. Healso stated that he had referred dozens of patients for ultrasound based on
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