Below, please find the most recent Workers’ Compensation Board, Court of Appeals, and the Supreme Court decisions.  We hope you find these summaries helpful and please don't hesitate to let us know if you have any questions.

 

Case Name, Citation, Author:  Jennifer L. Patton v. Ford Motor Co.; WCB No. 201601126; Stivers; Entered 9/22/2017
Facts: There was no factual dispute that Patton fell at work in March, 2016, and, she immediately went to Ford medical for the injuries. She had sustained previous injuries for which restrictions were imposed.
The day following the injury Ford sent her to Jewish E/R, where she was taken off work, and remained off work when she saw Dr. Sylvia Cole. Patton alleges she injured the right shoulder, neck and low back in the fall. Records from Dr. Doss reveal that some 4 years prior there was evidence of DDD in the neck and back.
Ford introduced various medical records, including the IME of Dr. Thomas Loeb, who indicated that Patton had nothing more than a transient hip contusion and cervical strain., and, who indicated that he watched Patton leaving his building carrying her cane instead of using it. She had well documented pre-existing and he assigned her 0%.
Patton introduced Dr. James Barefoot, whom the ALJ found to be not persuasive: his record of the facts of the injury were sketchy, he did not explain any previous injury, and did not firmly state the arousal of a previous condition
The CALJ agreed with Dr. Loeb, and the medical records from Ford which showed only minor injuries reported, and found only a temporary condition existed.
Procedural History: Patton seeks review of an award of TTD benefits only, but no PPD and no permanent medical benefits, as those claims were dismissed, for work-related lumbar and cervical injuries.
Issues: Were the medical records submitted, including Dr. Loeb’s report, found to be substantial evidence?
Holding: Yes
Reasoning: The ALJ simply chose to rely on Dr. Loeb, and found Dr. Barefoot’s report and records not convincing, stating “The ALJ is not impressed with Patton’s medical proof. As fact finder, this was within his rights.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  First Class Services, Inc. v. Gural W. Hensley; No. 2016-CA-001367-WC; LAMBERT, J.; To Be Published; Rendered 10/13/2017
Facts: We brought you this previously as a WCB case.
Hensley was an over the road truck driver who kept his truck at home. While dispatched he became ill, and was told to take his trailer to a location in Louisville. He did, and then proceeded to drive the truck to his home in Lewisport, Kentucky, and, while in route, had an accident.
Hensley kept his truck at home to reduce fuel costs, wear and tear on the truck, and maintenance costs, all of which the employer acknowledged.
Procedural History: First Class seeks review of the WCB decision affirming in part, vacating in part, and remanding the ALJ decision finding that Hensley was entitled to the “service to the employer” and “travelling employee” exceptions to the “going and coming” rule.
Issues: Did the WCB properly rule in Hensley’s favor in its determination that Hensley was providing a service to First Class and was entitled to traveling employee status at the time of the accident?
Holding: Yes
Reasoning: First Class failed to meet its burden of demonstrating “overwhelming favorable evidence” in support of its position that Hensley was not providing a service to it or that Hensley was not a traveling employee. He had been employed there since 1998, and had always taken his truck home. Because Hensley’s route began and ended at home, returning home early because of illness did not introduce a significant departure from that routine.
Disposition: Affirmed
ALJ: Hon. Otto Daniel Wolff
COA Panel: Dixon, J. Lambert, and Stumbo

Case Name, Citation, Author:  William Ramey v. J & M Trucking; WCB No. 199793367; Alvey; Entered 9/20/2017.
Facts: This appeal is filed by Ramey after an order entered by ALJ Davis joining Ameritox as a party to the action, and allowing Ameritox 45 days to file evidence or a brief, and removing the claim from abeyance.
Procedural History: Pro Se Ramey appeals a claim currently pending before ALJ Davis.
Issues: Was this an appeal from a final order?
Holding: No
Reasoning: The ALJ had not yet rendered an opinion regarding the issues pending before him. The order of the ALJ was not final and appealable.
Disposition: Opinion and Order Dismissing
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Maria Cristina-Rodriguez v. Military Deli and bakery Services; WCB No. 201690404; Rechter; Entered 9/22/2017
Facts: Rodriguez worked as a baker which required her to lift boxes of ingredients onto shelves.
Rodriguez reported pain from lifting and sought medical treatment at Hardin Memorial Hospital in March, 2016, the month of her injury. Those records showed that complaints of pain had started several months previous. A CT scan revealed a new ventral hernia in the pelvis. She saw Dr. Matthew Benns who repaired the hernia on 6/10/2016. He opined the ventral hernia “was possibly caused by and would certainly be exacerbated by heavy lifting that occurred prior to her surgery.”
Dr. Warren Bilkey performed an IME for the Plaintiff. He diagnosed an abdominal wall hernia, status post-surgical repair with residual chronic pain. He attributed everything to the work injury and all was work-related. He assigned a 9% with no pre-existing.
Dr. Gregory Snider performed an IME diagnosing status post abdominal hernia repair. Neither the records nor the history matched with an occupationally induced hernia. He also assigned a 0% rating.
The ALJ was persuaded by Dr. Snider’s opinion, and dismissed the claim.
Procedural History: Rodriguez appeals from the order dismissing her claim which held that she failed to establish that her abdominal hernia was work-related. 
Issues: Was Dr. Snider’s opinion substantial evidence upon which the ALJ could rely in dismissing the claim?
Holding: Yes
Reasoning: Dr. Snider reviewed all the records and found the medical records were not consistent with an occupational cause for the injury. Likewise Dr. Benns only stated the hernia was “possibly” caused by his work.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  CDR Minerals v. Randy Richie; No. 2016-CA-001333-WC; Taylor; Rendered 10/6/2017; Not To Be Published
Facts: Richie’s claim was for injuries to lower back, right hip, and right leg due to cumulative trauma. The ALJ, relying on Dr. Arthur Hughes, found Richie at PTD. Following appeals to WCB and COA, the case was remanded for additional findings of fact.
On remand, the WCB affirmed the ALJ’s finding of PTD. The facts of the case were not discussed in any detail.
Procedural History: CDR requested review of the WCB decision affirming the ALJ who found Richie PTD. The case had previously been appealed to the COA, who affirmed a WCB decision reversing and remanding to the ALJ for additional findings of fact detailing the work-related injuries to Richie.
Issues: Were there sufficient findings and substantial evidence to uphold the ALJ’s finding of PTD?
Holding: Yes
Reasoning: The ALJ fully discussed and detailed the medical evidence of Dr. Hughes. In addition, there was a full discussion of why this 58 year old heavy equipment operator with a high school education could not return to work.
Disposition: Affirming
ALJ: Hon. Jeanie Owen Miller; William Rudloff
COA Panel: Maze, Taylor, and Thompson

Case Name, Citation, Author:  Ford Motor Company v. Jeffrey Rogers; No. 2016-CA-000975-WC; Thompson; Not To Be Published; Rendered 10/13/2017
Facts: On 9/25/2012 Rogers suffered a torn rotator cuff injury to his left shoulder which required 2 surgeries. Following the injury, Rogers changed jobs from being a standup forklift operator to a sit-down forklift truck operator. Following the second surgery he continued with pain raising the arm above his shoulder, and continued to have decreased strength.
The standup position did require Rogers to use his arms and shoulders for driving, and also to maintain his balance, which put pressure on the arm. The sit-down was easier, with no pressure on the arm.
Dr. James Farrange did an IME, and assigned 5% WPI, with restrictions, including no return to his previous job.
Dr. Sallay performed both surgeries and assigned 2%, having assigned 5 % after the first surgery, but did not state it was under the Guides. No lifting or reaching above shoulder level.
Dr. Ellen Ballard performed an IME and assigned 3% WPI, no overhead, but he could return to his former work. She thought Sallay’s 5% was correct, and was not substantively different from Dr. Farrange.
The ALJ used the 5%, and found that Rogers could not do the work of a standup driver, and that the preinjury wage was greater than the post injury wage and awarded the 3 multiplier.
Procedural History: FMC appeals from a portion of the WCB opinion affirming in part, vacating in part, and remanding the ALJ award finding Rogers suffered a 5% whole person impairment and was entitled to the 3 multiplier. 
Issues: 1.) Was there sufficient evidence for the ALJ to rely on in awarding the 5%?
2.) Was the 3 multiplier properly applied?
Holding: 1.) Yes
2.) Yes
Reasoning: 1.) The ALJ’s decision was supported by substantial evidence. Dr. Ballard, even though she had stated 3%, agreed with the other doctors on the 5%. Rogers’ testimony also supported this conclusion.
2.) The ALJ considered the relevant factors and found that Rogers could not return to his pre-injury job. Further, the parties had stipulated that Rogers was not earning a wage equal to his pre-injury wage.
ALJ: Hon. Jane Rice Williams
COA Panel: Combs, Stumbo, Thompson

Case Name, Citation, Author:  Laurel Creek Health Care Center v. Ailene Fryman; No. 2017-CA-000529-WC; Combs; Rendered 10/6/2017; Not To Be Published
Facts: The facts listed are very sketchy. The claimant alleged injury to the lumbar spine and bladder while lifting a patient. The employer stipulated the lumbar injury, but no others.
The ALJ rejected the uterine prolapse as not work-related, and awarded TTD, PPD (enhanced) based on Dr. Ellen Ballard’s 5 %, and medical benefits for the lumbar.
Procedural History: Laurel Creek appeals this decision of the WCB affirming the ALJ’s award of TTD, PPD enhanced by 3, and medical benefits.
Issues: Was there sufficient evidence for the ALJ to award TTD and PPD, and was the evidence sufficient for the ALJ to separate the injuries for assessing the Plaintiff’s pain?
Holding: Yes
Reasoning: The ALJ thoroughly reviewed the evidence. The Claimant’s testimony was competent evidence concerning her condition and ability to work. Both prongs of the test for TTD were met.
Disposition: Affirmed
ALJ: Hon. Stephanie Kinney
COA Panel: Combs, Johnson, D. Lambert

Case Name, Citation, Author:  George Grace v. Excel Mining, LLC; WCB No. 201700152; Entered 9/8/2017
Facts: Grace was an underground coal miner with Excel whose last date of employment at Excel was April 5, 2007. Thereafter he worked for various companies outside Kentucky. His last date of injurious exposure occurred in West Virginia on May 22, 2013 He filed a claim for CWP on January 14, 2017, and identified the date of manifestation as September 4, 2014, also the date he was diagnosed with CWP.
The ALJ dismissed the claim, determining that Grace had not filed his claim within 3 years of his last exposure as required by KRS 342.316 (4) (a). Again, citing this statute, the ALJ determined Grace filed his claim more than 5 years after his last exposure for the employer in the state of Kentucky.
Grace acknowledges the statute, but argues that it there is nothing requiring that last injurious exposure to be in Kentucky.
Procedural History: Grace appealed from the ALJ Order dismissing his claim against Excel Mining as being time barred.
Issues: Did the ALJ properly dismiss the claim as time barred? 
Holding: Yes
Reasoning: The fact that Grace was last exposed to coal dust in West Virginia does not, in and of itself, insulate Excel from liability. However, Grace’s claim must be otherwise valid. His last exposure in Kentucky was 2007.  He filed his claim in 2017.  This was outside the 3 and 5 year statutes of limitation set forth in KRS 342. 316 (4) (a).
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: ITT Technical v. Hall; WCB No. 201466966; Alvey; Entered 9/8/2017.  
Facts: Hall’s original injury was on 9/22/2014 to her back, left leg, left foot, neck, both wrists and head as a result of a trip and fall. In a settlement agreement, she reserved her right to future medicals. ITT filed a MFD relative to Dr. David’s treatment, filing a U/R report of Dr. Kevin Anderson, D.C. stating the additional 8 treatments requested were not supported by the ODG.
ITT also filed a MFD challenging the L5-S1 Ct scan recommended by Dr. Djurasovic, submitting the U/R of Dr. Glenn Babus, D.O., who also stated the request was not supported by the ODG.
Dr. Djurasovic requested the testing to determine whether or not to perform an anterior fusion. Both treating physicians testified that the requests were for work-related injuries and were reasonable and necessary.
Dr. Ellen Ballard, for the employer, indicated the chiropractic treatment was not necessary.
The ALJ ruled for the Plaintiff finding the treating docs both explained their opinions adequately.
Procedural History: ITT appeals from this MFD in which the ALJ approved chiropractic treatment requested by Dr. Christopher David, and testing as recommended by Dr. Mladen Djurosavic.
Issues: Did the evidence compel a different result?
Holding: No
Reasoning: The ALJ cited her reasons for finding the treatment reasonable and necessary. The records of the physicians confirmed work-relatedness.
Disposition: Affirming and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author:  Kevin Story v. Kelly Services; WCB No. 201459633; Alvey; Entered 9/15/2017
Facts: Story filed his claim alleging he injured his neck, both arms and both hands while working for Kelly Services at the Toyota plant on 10/24/2014.
He said he was “in an awkward position” at the time of his injury, and as he drove home his fingers began cramping and clamping. When he woke the next morning he could not open them, and was unable to work.
He originally treated at Kleinert and Kutz, and by Dr. Martin Favetto who performed carpal tunnel releases on both the left and right wrists. He continues with pain, and states his arms go numb.
Dr. Favetto stated Story had not seen a spine surgeon, nor had he undergone treatment for the neck. If a spine-surgeon finds the neck is not work-related, then Story is at MMI.
Story filed Dr. Thomas Gabriel who diagnosed bilateral CTS.
Story also filed Dr. Anthony McEldowney who stated Story was status post left and right CTS releases. He diagnosed a cervical strain versus a cervical disc abnormality. He recommended restrictions.
Kelly filed Dr. Michael Best, who after reviewing tests and performing an examination did not believe Story had sustained a cervical injury. He found no cervical radiculopathy on exam, and no cervical symptoms.
Kelly filed Dr. Ellen Ballard who found no evidence of cervical radiculopathy.
Kelly filed Dr. Richard Dubou who found Story post bilateral CTS surgery, and assessed 6%, and assigned restrictions. 
In his award, ALJ Case awarded TTD, PPD, and medicals for the carpal tunnel, and determined that Story did not sustain a work-related cervical injury, awarding no benefits for the alleged cervical injury.
Procedural History: Story appeals from an award of PPD benefits based on a 6% impairment rating for bilateral CTS, enhanced, and medical benefits, but dismissing his claim for a cervical injury. Story argues on appeal that the findings regarding his cervical spine are not based on substantial evidence.
Issues: Was there substantial evidence to support the ALJ’s decision to dismiss the claim for a cervical injury?
Holding: Yes
Reasoning: The WCB found the ALJ accurately summarized the evidence and had a complete understanding of the issues before him. Both Drs. Ballard and Best opined Story had no cervical radiculopathy. Story introduced evidence that could have supported a decision by the ALJ, however, this does not compel a contrary result.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Rickey Thacker v. Sidney Coal Company; WCB No. 201602553; Rechter; Entered 9/8/2017
Facts: There was no discussion of the facts as it pertained to the work performed by Thacker.
Thacker filed the IME of Dr. Anbu Nadar who diagnosed chronic cervical and lumbosacral strains, degenerative disc disease, and bilateral patellofemoral arthrosis citing sustained repetitive injuries over Thacker’s employment history. He assigned 5% for the cervical, 5% for the lumbar, and 2% for each knee, for a combined 14%.
Sidney submitted the report of Dr. Michael Best, who found no indication of cumulative trauma. There was mild DDD, and insufficient evidence to support a rating.
The ALJ found Thacker’s alleged injuries manifested sometime in 2008, and notice was not given until 11/21/2016.
Procedural History: Thacker appeals from an award for hearing loss medical benefits, but dismissing his claim for cumulative trauma injuries to the neck, back, and knees.
Issues: Were the opinions of Dr. Best, relied upon by the ALJ, considered substantial evidence?
Holding: Yes
Reasoning: Dr. Best noted that the problems were part of the natural aging process, and fully explained his opinions. The ALJ explained why he did not find the opinions of Dr. Nadar persuasive.
Disposition: Affirmed
ALJ: Hon. Brent Dye

Case Name, Citation, Author:  Judy Construction v. Shawn Smith; WCB No. 201559605; Alvey; Entered 8/18/2017
Facts: Smith alleged injuries when he fell 40 feet from a bridge while working as a general laborer for Judy. Judy denied the claim, and asserted a safety violation by Smith alleging he failed to “tie off” when working on a surface more than 15 feet above level. He was not wearing a safety harness at the time of the fall, and, it was made available to him.
Smith testified he wore the harness daily, but it had to be removed to use the restroom. Near the end of his shift, he had to use the restroom, and he removed his harness. The supervisor told the workers to take down the last form and they could go home. So he jumped back, and was struck by a bar, knocking him to the ground. The boss had not ordered him to put the harness back on.
The ALJ awarded 17%, applied the 3 multiplier, and awarded medical benefits. He declined to find the 15% safety violation applicable, finding that there was no evidence that the Plaintiff consciously disregarded or willfully ignored using his safety harness.
Procedural History: Judy appeals from the award of TTD, PPD (enhanced by 3), and medical benefits for multiple injuries sustained on 12/2/2015.
The sole issue is whether the ALJ erred in declining to decrease Smith’s award of benefits by 15% pursuant to KRS 342.165 (1).
Issues: Was the ALJ correct when he declined to find the 15% safety violation applicable?
Holding: Yes
Reasoning: The application of the safety penalty requires: 1.) proof of a violation of a specific safety violation; 2.) evidence of “intent” to violate a specific safety provision; and, 3.) the violation must be the cause of the accident.
The ALJ determined Smith did not intentionally violate a safety rule. He found persuasive the fact that he had worn it all day, and only had removed it to go to the bathroom, when the supervisor shouted his instructions. A that time he “was in a hurry’ and “wasn’t thinking” when he jumped back across the bridge without the harness. The accident occurred through a simple act of negligence.
Further, there was insufficient evidence to conclude that Smith had any conscious indifference to the consequences of jumping back on the bridge. He simply acted negligently.
Disposition: Affirmed

Case Name, Citation, Author:  William Heightchew v. Randstad; WCB No. 201601517; Rechter; Entered 9/15/2017
Facts: Randstad worked as a temporary at Randstad, assigned to AEP Industries when he sustained an injury to his left hand on December 23, 2015, which required 2 surgeries to repair his thumb, in March and July, 2016. Both surgeries were performed by Dr. Margaret Napolitano. At a 9/16/16 office visit, Dr. Napolitano stated Heightchew was not yet at MMI, but released him to RTW, regular duty, without restrictions. Heightchew has not RTW since the injury.
Dr. Anthony McEldowney performed an IME on 12/10/2016 diagnosing a crush injury of the left thumb, finding him at MMI unless a reconstruction procedure was recommended. He assigned 14%, with restrictions.
Dr. Rick Lyon performed an IME on 1/26/16, and assigned 8%. He was at MMI on that date.
The ALJ awarded TTD from 12/23/2015 thru 9/19/2016, and relied on the 8% given by Dr. Lyon, with no enhancers.
Procedural History: Heightchew appeals from the Opinion and Order arguing the ALJ prematurely terminated TTD benefits, and failed to find him PTD.
Issues: 1.) Was Heightchew entitled to TTD thru 11/19/2016?
2.) Did the ALJ err in failing to find Heightchew was PTD?
Holding: 1.) No
2.) No
Reasoning: 1.) Dr. Napolitano found Heightchew at MMI as on 9/19/2016. This was the date that Dr. Napolitano found him to be at MMI. Heightchew argued that Dr. Napolitano did not release him until 11/19, however, there was no documentation in the file so stating, nor was it contained in the doctor’s notes. The ALJ did not comment on this date in his decision. When confronted in his brief about the date, Heightchew did not respond.
2.) The evidence of Dr. Napolitano that Heightchew could RTW on 9/19/2016, without restrictions, and Dr. Lyon’s testimony that he could RTW, in his pre-injury job, was more than substantial evidence.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Donald Edwards Jr. v. Ford Motor Co.; WCB No. 201602118; Alvey; Entered 9/1/2017.
Facts: Edwards filed his claim alleging cumulative trauma injuries to his neck, left shoulder, upper back, left upper extremity, left hand and left elbow due to his repetitive job duties, which manifested on August 11, 2015. We will only review the cervical.
On 8/11/15 Edwards felt something pull in the back of his neck and experienced numbness around the left upper extremity around the shoulder area. The pain then extended into his arm.
After treatment at Ford, he was referred to Dr. Finizio, who recommended cervical surgery, and then to Dr. John Cummings who performed cervical surgery on 11/6/2015. Dr. Robert Sloan then took over treatment. A second surgery was eventually performed, and he returned to work without restrictions. No TTD was paid.
An MRI taken on 8/11/2015 revealed left and right osseous neuroforaminal stenosis from unconvertebral osteophytes at C6-7; multiple mild spinal canal stenosis from C3-4 to C6-7; asymmetric small disc osteophyte complex to the left at C3-4 with mild stenosis; and mild straightening of the cervical lordosis. By central cervical canal stenosis
Ford filed Dr. Robert Sexton, a neurosurgeon, who diagnosed chronic cervical spondylosis, characterized by central cervical canal  stenosis, disc/osteophyte complexes, osteophyte formation, DDD at C5-6, 6-7, status post ACDF C5-6, C6-7 levels. There was no objective evidence of work-relatedness. There was a 25% rating for the cervical, 10% prior active, and 16% post injury.
Edward filed Dr. Jules Barefoot who assessed 28% for the cervical. The entire cervical was work-related, with no prior active.
Procedural History: Edwards appeals from the Award of income and medical benefits for his left ulnar neuropathy, but dismissing the claim for his cervical condition.
Issues: Was the testimony of Dr. Sexton sufficient for the ALJ to base his opinion on?
Holding: Yes
Reasoning: Sexton was quite clear concerning his conclusions regarding causation. The ALJ also provided an explanation as to why he did not find the opinion of Dr. Barefoot persuasive.
Disposition: Affirming
ALJ: Hon. John Coleman

Case Name, Citation, Author:  Sherry Langer v. Holiday Inn Express; WCB No. 200885862; Alvey; Entered 9/8/2017
Facts: Langer’s claim was for May 25, 2008 injuries. She was awarded indemnity benefits and medical benefits, including treatment with Dr. McGhee for her opioid abuse.
On July 14, 2014, Langer filed a motion to reopen the claim citing a request for reimbursement filed on July 17, 2013, one year prior. This was for office visits beginning in 2012. Langer requested an order directing payment for treatment with Dr. McGhee, as well as expenses. She alleges that KESA had not timely challenged any medical expense.
Importantly, the most pertinent evidence was that of the Claims Examiner. She testified that due to confusion, Langer was informed that treatment with Dr. McGhee was not authorized. She admitted that certain items submitted in July, 2013, were not paid until 11/25, and another letter denying reimbursement was sent on 7/2013.  No MTR or Form 112 were filed. Nor was U/R performed. A 2/6/2014 letter from Plaintiff’s counsel was not responded to, and no MFD was filed. There did not appear to be any objections of a legal nature to any of the above.
Based on Dr. David Shraberg’s report, KESA filed a Form 112 challenging treatment with McGhee on May 18, 2015.
In a March 7, 2017 Opinion, the ALJ ordered KESA ordered KESA to reimburse Langer within 60 days, and she had 30 days to submit the documentation. Langer argued that due to the inaction of KESA it had waived any defenses to payment.
Procedural History: Langer appeals from the Opinion and Order where the carrier, KESA, was ordered to pay for certain medical treatment or expenses, finding the carrier waived any objection to the request for reimbursement she submitted  since it failed to timely object or file a medical dispute, and, for failing to award attorney fees and expenses.
Issues: Did KESA properly deny the requests for payments of expenses made by Langer?
Holding: No.
Reasoning: KESA received the request, and denied the request, however, neither filed a MTR no instituted a formal MFD. While there may have been reasons for not paying, merely not paying or not responding are not available options. No other defenses for payment were available to KESA after failing to timely contest the request for reimbursement.
On remand, the ALJ must determine whether KESA appropriately disputed the request. If so, the ALJ may review the objections. If not any objections or defenses are waived. 
The ALJ was also ordered to determine whether sanctions should be assessed as well as referral for sanctions under KRS 342.267, if appropriate.
Disposition: Vacating and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author:  Sylvia Dobbs v. American Woodmark; WCB No. 201683243; Stivers; Entered 8/25/2017
Facts: Dobbs alleges injuries as a result of workplace falls on 10/5/2015 and 1/6/2016. The second injury is in question. For it she alleges “Claimant passed out from heat.” She alleges neck injuries. The record shows she underwent neck fusions in 2005 and 2007 by Dr. Magdy El-Kalliny, returning to work after each surgery.
The medical evidence itself was not discussed by the WCB, except as to history given to the physicians, as the issue to be decided related to the fall of 1/6/2016.
The problem was in the occurrence of the second fall. She believed she lost consciousness because of the heat in the dry kiln. She said it was hot and she had trouble breathing. She reinjured herself in the fall, including a gash on the head when she awoke. The ALJ ruled that she had fallen due to some unrelated health issue, as she had indicated she was somewhat nauseous and light headed before entering the kiln area. He dismissed the claim” for failure to prove why the fall was workrelated. (sic)”
Procedural History: Dobbs seeks review of an order dismissing her claim “for failure to prove why the fall was work-related.” She challenges the ALJ’s decision, asserting he applied an incorrect burden of proof, disregarded the evidence of record, and did not apply the controlling case law.
Issues: Did the ALJ apply an incorrect burden of proof in this fall down case?
Holding: Yes
Reasoning: Case law mandates that when there is no evidence establishing the fall is due to work, but the fall is unexplained, the fall is work-related. The ALJ’s statement that he could not find evidence supporting a finding that the lightheadedness in any manner caused or related to her work, and therefore, the fall is not work-related is an incorrect representation of the applicable law. The ALJ did not identify any factors personal to Dobbs which caused her light headedness and nausea.
Disposition: Vacating and Remanding
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Jacor Broadcasting of Lexington v. Leann True Norton; WCB No. 199759280; Alvey; Entered 9/1/2017
Facts: Norton sustained injuries in a MVA in 1997. She settled her claim, reserving medicals. The settlement agreement specifically notes Norton injured her neck, low back, left shoulder and left knee. She continued to treat for her injuries, including the right knee, all of which were paid for by the carrier. The right knee complaints were subordinate to the other injuries, and only when right knee surgery was recommended were those bills challenged. Jacor said the knee was not specifically mentioned in the agreement, and therefore not compensable. Norton always thought the right knee was covered until she got a letter of denial.
Norton testified that both knees hit the dash in the MVA, but the left knee, and its 5 resulting surgeries was worse.
The adjuster for Zurich testified that any approval for the left knee was inadvertent, and she understood that the right knee was not compensable. She never advised Norton the right knee was compensable, and if bills were paid for the right knee, they were inadvertent, as they were included with other treatment and could not be separated.
The ALJ found treatment for the right knee was causally related to the work accident, and therefore compensable.
Procedural History: Jacor appeals from the Opinion and Order finding compensable Norton’s treatment for her right knee stemming from a 3/26/1997 work-related MVA from which she sustained multiple injuries. Jacor argues the right knee is not part of the claim and that the right knee complaints are not causally related to her work injury.
Issues: Did the ALJ err in finding treatment for Norton’s right knee causally related to the work accident, and therefore compensable?
Holding: No.
Reasoning: There was no question raised by either party that there were multiple injuries in this accident. As found by the ALJ, since there was a settlement, there was no judicial determination on any issue. As such, the agreement did not bind the parties regarding whether Norton had a right knee injury in addition to the other conditions in the agreement.
KRS 342.125 (7) prohibits any statement contained in a settlement agreement from being considered as an admission against interest if the claim is reopened.
Disposition: Affirmed
ALJ: Hon. Douglas Gott/Robert Swisher

Case Name, Citation, Author:  Lexington Fayette Urban County Government v. John Baker; WCB No. 201599086; Rechter; Entered 8/11/2017
Facts: Baker was a heavy equipment operator who began to experience pain, numbness, and tingling in his right hand in 2010, and underwent CTS release in 2011. In 2014 similar symptoms began in the left hand, and he returned to Dr. John Gilbert for treatment.
Dr. Ronald Burgess did an IME on 5/14/14, diagnosing severe left CTS, but did not believe it was work-related, stating he did not believe the work activity was enough to cause the problem, and instead, attributed the condition to obesity and hyperthyroidism. Dr. James Owen did an IME on 5/7/15, diagnosing CTS, caused by work, explaining That Baker operated different types of heavy equipment which required pinching, gripping, and fine and gross manipulation of the hands.
In an October, 2015 Interlocutory Order, the ALJ determined the left CTS to be work-related, stating that he was more persuaded by Dr. Owen, and stating: “the  ALJ takes judicial notice that heavy equipment operating, such as using a bobcat, requires bilateral gripping of the operating levers/joysticks, which vibrate as the equipment is running.”
Baker then underwent a release. Following surgery, he was examined by Dr. Richard Dubou, diagnosing the CTS, but opining it was not work-related, and assigned a 2% impairment.
The ALJ relied on the 2%, and enhanced the award by 3.
Procedural History: LFUCG appeals from the Order and Award in which Baker was awarded TTD, PPD, and medical benefits for left carpal tunnel syndrome, arguing substantial evidence, the ALJ improperly took judicial notice of material facts, and the burden of proof was erroneously shifted.
Issues: 1.) Did the ALJ improperly take judicial notice, sua sponte, of the fact that heavy equipment operation requires the use of vibrating hand controls?
2.) Did the ALJ improperly shift the burden of proof to the Defendant to prove causation?
Holding: 1.) No
2.) No
Reasoning: 1.) The WCB would not disagree with the ALJ’s conclusion that heavy equipment involves the use of hand controls which vibrate as being a generally known fact within the state of Kentucky. Further, no attempt was made to challenge that fact. In addition, Dr. Owen stated Baker’s work activities, and attributed his condition to those activities. No additional findings were necessary.
2.) The ALJ merely stated he was more persuaded by the opinion of Dr. Owen’s opinion of causation, and explained why he discredited Dr. Burgess’ opinion, which was because Burges based his opinion on the conclusion Baker’s work involved no use of vibratory tools. 
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author:  Dorse Sullivan v. James River Coal Company; WCB No. 200593747; Stivers; Entered 9/15/2017
Facts: An agreement was entered following one impairment rating of 62% for catastrophic injuries to Sullivan, with Sullivan retaining his right to future medical benefits. 
Relying on the report of Dr. Leon Ensalada, James River filed a MFD over narcotic medications, and later amended its motion to include objections to the rhizotomies and bursa injections, again based on Dr. Ensalada. James River also filed Dr. Timothy Kriss addressing the reasonableness and necessity of the medications and procedures in question. Other MFds were filed, but the only issues on appeal are as above.
The reports and records of Dr. Susan McDowell, Sullivan’s primary treating physician for Sullivan’s injuries, were filed by Sullivan.
Relying primarily on the opinions of Dr. Kriss, and, a finding that Sullivan purportedly had stated that the lumbar facet rhizotomies did not provide any help (Which Sullivan Denies), the ALJ ruled against the narcotics, rhizotomies, and injections. On reconsideration, Sullivan requested the ALJ to produce specific findings concerning his alleged statements, which the ALJ failed to do.
Procedural History: Sullivan files this appeal following a decision resolving a MFD filed by James River relating to various medical procedures and prescription medicines. Sullivan contends the ALJ erred in finding 3 opioids, lumbar facet rhizotomies, and ischial bursa injections non-compensable.
Issues: 1.) Was the decision by the ALJ to deny the continuing use of narcotics, based on Dr. Kriss’ report, based on substantial evidence?
2.) Was the decision by the ALJ to deny the ischia bursa injections, based on Dr. Kriss’ report, based on substantial evidence?
3.) Was the decision by the ALJ to deny the lumbar facet rhizotomies based on substantial evidence?
Holding: 1.) Yes
2.) Yes
3.) No
Reasoning: 1.) Dr. Kriss set forth a schedule to remove Sullivan from the narcotics. They were addicting, and were no longer effective. They were no longer reasonable and necessary treatment of Sullivan’s injury.
2.) The ALJ refused to accept Dr. McDowell’s opinion since there was no solid proof the condition potentially existed in order to warrant the injections. Dr. Kriss did not find any proof the condition existed. His opinion constituted substantial evidence.
3.) The ALJ’s decision was based on Sullivan’s statement that previous rhizotomies did not provide any relief. Sullivan denied this statement and asked the ALJ to cite where this info came from, which he did not do. In addition, the opinions of Drs. McDowell and Ensalada do not support this opinion, and, of course, the ALJ could not cite any medical evidence of record to support his decision. The claim must be remanded for additional findings addressing the issue of whether the rhizotomies are reasonable and necessary and/or work-related.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Walmart Stores Inc. v. Jansen; WCB No. 201394080; Rechter; Entered 9/15/2017
Facts: Jansen sustained a lumbar injury for which she was awarded PTD. She was eventually referred to specialist Dr. Kevin Stevensen in Macon, Georgia, who has performed 3 surgical attempts to repair a cerebrospinal fluid leak.
Meanwhile he moved to Florida, and Dr. Stevensen’s office was located 767 miles from Jansen’s home. She submitted receipts for travel reimbursement for $2615. 53, representing travel expenses for 3 trips to Macon, Georgia for office visits with Stevensen. Walmart challenges the reasonableness of these expenses.
Jansen testified the first adjuster paid everything. The second adjuster started missing payments on various expense, and, when she paid, never offered explanations and never paid the full amount requested. Now she has a third adjuster.
Walmart did not offer any rebuttal.
The ALJ found the expenses reasonable, and ordered Walmart to pay, ordered full explanations of what was being paid, and required Walmart to make their position clear on all expenses so Jansen could determine whether or not to litigate.
On appeal, Walmart argues it is not responsible for travel expenses in excess of those permitted by 200 KAR 2:006 sec. 7, the state travel administrative regulations and standards. This regulation sets forth the amount of reimbursement of state employees, and details the policies and procedures for reimbursement of meals and lodging, as well as establishing reimbursement rates for travel and mileage.
Procedural History: Walmart appeals from an award of PTD and medical benefits for a lumbar spine injury and psychological injury. The sole issue is whether the ALJ erred in determining Jansen’s travel expenses are reasonable.
Issues: 1.) Are the state travel administrative guidelines as found in 200 KAR 2: 006 sec.7, to be used for reimbursement of travel expenses in WC cases?
2.) Did the ALJ correctly find the hotel and meal expenses tendered for reimbursement reasonable?
Holding: 1.) No
2.) Yes
Reasoning: 1.) There is no language contained in KRS 342.020 that would require the use of these regulations, and the WCB indicated that it was not at liberty to interpret the statute contrary to the plain language.
2.) Whether an expenses is reasonable is a question of fact which is within the discretion of the judge. The ALJ took into consideration the totality of the circumstances including the fact that Walmart had not advised her of any limitations or reimbursement schedule it expected her to follow. 
Disposition: Affirmed
ALJ: Hon. Jeannie Owen Miller

Case Name, Citation, Author:  Samuel Wetherby v. Amazon.com; WCB No. 201468458; Stivers; Entered 8/11/2017
Facts: Wetherby sustained an injury to the neck on 10/3/2012. Evidence established he had undergone fusion surgery in the cervical area in 1980 and 1985, however, no medical records were introduced. Further, no medical records were introduced regarding any medical treatment prior to the October, 2012 injury.
Following the 1985 surgery, he was not treated any further, and was asymptomatic of the symptoms prior to the surgeries.
Wetherby used Dr. Frank Burke who originally assessed 17% using the DRE method because the 2012 injury was at a different level of the cervical spine than previous. He later assessed 37% utilizing the ROM method.
Amazon relied on Dr. Christopher Stephens who assessed 25% prior to the injury, and indicated Wetherby had severe pre-existing disease due to the previous fusion. He assessed Wetherby a DRE IV, and indicated that had he rated him just prior to the 2012 injury, he would still be a DRE IV. At that point, with little to no symptoms, he would be rated at 25%. He did not do an assessment after the surgery, but disagreed with Dr. Burke that the DRE method should be used, instead testifying the ROM method should be used.
Dr. Kriss saw Wetherby for the employer. Due to the several surgeries, it was necessary to use the ROM method in the Guides. Due to the absence of measurements or findings, he had to apply the DRE method after the first 2 surgeries, and rated Wetherby at 28%. Following this third surgery, which was work-related, the rating was 31%, or a net of 3%. The work injury had caused trauma at a different level than prior injuries/surgeries.
The ALJ awarded 6%, using the difference between Kriss’ 31% and Stephens’ 25%.
Procedural History: Wetherby appeals from an award of PPD, TTD, and medical benefits for a neck injury sustained on 10/3/2012, contending the ALJ erroneously determined he had a pre-existing active condition meriting a 25% impairment rating pursuant to the Guides.
Issues: Did the ALJ err in failing to address whether Wetherby had a pre-existing active condition prior to the injury meriting a carve out of the award, and, in failing to address whether Finley v. DBM Technologies was applicable?
Holding: Yes
Reasoning: Remand was necessary for the ALJ to address whether she believed Finley was applicable as a pre-existing disability/impairment was listed by the parties as an issue. It is the Defendant’s burden to prove a pre-existing active condition and the Plaintiff has the burden of proving an aggravation of a pre-existing condition.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author:  Roger Soard v. Super Services, LLC; WCB No. 201501915; Rechter; Entered 8/18/2017
Facts: Soard alleged injuries to right upper extremity on 9/22/2014. The case was bifurcated and proceeded on the issues of notice, causation, work-relatedness, medical treatment and TTD.
An opinion was entered finding the CTS not work-related, that Soard failed to prove a right shoulder injury on 9/22/2014, and, that the 2/2015 incident produced only a rupture of the long head of the biceps tendon.
Procedural History: Soard appeals from an order awarding him TTD and medical for a biceps tendon injury but dismissing his claim for carpal tunnel syndrome and a shoulder injury. Since the appeal was not from a final and appealable decision, it was dismissed.
Issues: Was this order, which did not state “interlocutory”, a final and appealable order?
Holding: No
Reasoning: Even though not styled “interlocutory”, it is a decision on a bifurcated claim and does not resolve all the matters of the claim.
A decision is appealable if: 1.) it terminated the action itself; 2.) acts to decide all matters litigated by the parties; 3.) operates to determine all the rights of the parties so as to divest the ALJ of authority.
Disposition: Dismissing and Remanding
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author:  Marie Miller v. Our Lady of the Way Hospital; WCB No. 199859307; Stivers; Entered 8/11/2017.
Facts: The settlement agreement reveals a low back injury settled in 2000 for a 1998 injury date.
In a MFD resolved in 2014, ALJ Coleman ordered the employer to remain responsible for reasonable and necessary medical treatment. This MFD was filed on 9/12/16 asserting treatment with Dr. Suzanne Ford, including Flector patches, Gabapentin, and Metaxalone prescribed by Dr. Ford were not reasonable and necessary.
Relying on the opinions of Dr. Ellen Ballard and Dr. Lawrence Koss, and without much discussion, the ALJ relieved Our Lady of the liability for the 4 medicines.
No petition for reconsideration was filed.
Procedural History: Miller appeals from an Opinion and Order in a MFD in which the ALJ concluded Flector patches, Gabapentin, Metaxalone, and Tramadol are not reasonable and necessary treatment of Miller’s 1998 work injury and thus non-compensable.
Issues: 1.) Did res judicata apply because ALJ Coleman in a previous MFD had found Miller had sustained a work-related low back injury and is entitled to reasonable and necessary treatment for the cure of that injury?
2.) Did substantial evidence support the ALJ’s determination that Flector patches, Gabapentin, and Metaxalone are not reasonable and necessary treatment of the work injury?
3.) Was there supporting medical evidence, and thus substantial evidence, to support the ALJ’s determination that Tramadol is not reasonable and necessary?
Holding: 1.) No
2.) Yes
3.) No
Reasoning: 1.) Res judicata has limited effect in MFD cases because medical benefits necessarily relate to an employee’s evolving physical condition. The subject matter is not identical simply because it relates to the same body part. What may be reasonable and necessary treatment at one point in time may not be necessarily reasonable or necessary at a future time.
2.) First of all, Miller failed to file a petition for reconsideration, so the WCB is limited in its review. The opinions expressed by Dr. Koss constituted substantial evidence. Notably, the ALJ did not rule that Miller was not entitled to treatment by Dr. Ford, just that the medications in question were not reasonable or necessary.
3.) Dr. Ballard, in responding to a question as to whether the use of Tramadol was reasonable and necessary, simply referred to an answer she had given previously concerning Dr. Ford’s treatment, with no further explanation. She did not specifically address the reasonableness and necessity of Tramadol. She did not provide any basis for her statement.
Disposition: Affirming in Part, Reversing in Part, and Remanding
ALJ: Hon. Monica Rice Smith

Case Name, Citation, Author:  April Mayhew v. Bolster and Jeffries Health Care Group, LLC d/b/a Auburn Nursing; WCB No. 201592512 & 201476150; Stivers; Entered 8/18/2017
Facts: Mayhew alleges 2 injuries to her low back on 7/7/2014 and 2/26/2015 working as a CNA.
Her descriptions of the mechanics of the injuries, and her histories were less than stellar, as noted by the ALJ.
Auburn introduced the IME of Dr. Dennis O’Keefe who diagnosed right groin pull for the first injury, and, low back and left leg pain, secondary to disc herniation at the L5-S1 level for the second, but it was pre-existing and not related to the incident.
O’Keefe assigned10% to the low back (DRE III) and 0% to the groin. The 10% was pre-existing active. He also thought there was symptom magnification for the low back.
The WCB did not even review the medical testimony for Mayhew in its opinion, simply referring to the discretion of the ALJ to exclusively to rely upon the opinions of Dr. O’Keefe. The opinions of Plaintiff’s physicians, Dr. Fishbein and Dr. Schwank were summarily dismissed by the ALJ in his opinion, based on lack of sufficient history and improper use of the Guides.
Procedural History: Mayhew appeals from an order dismissing her claim for injuries to her low back sustained on July 7, 2014, and February 26, 2015, asserting the dismissal is not supported by substantial evidence.
Issues: Was there substantial evidence in support of the ALJ decision?
Holding: Yes
Reasoning: Just because Mayhew can point to other evidence that supports her position is not an adequate basis to support an appeal. The ALJ simply used his discretion in relying on Dr. O’Keefe and the less than convincing testimony of Mayhew.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  Austin Powder Company v. Billy Keith Stacy; 2016-SC-000347; Memorandum Opinion; Rendered 8/24/2017; Not To Be Published
Facts: Following his last day of work for 41 years as a drill operator on 4/16/2012, Stacy filed his claim for benefits for cumulative trauma injuries to his wrists, hands, and low back, and occupational hearing loss.
Stacy filed reports from Dr. Hughes, Dr. Belhasen, and M & G Neurophysiology, audiologist Robert Moore and the Form 108-HL of Drs. Jones and Ormond.
Dr. Hughes diagnosed lower back pain and bilateral hand and wrist pain and reduced range of motion and strength. He assigned 16%, (lower back pain 5%, range of motion left wrist 5%, range of motion right wrist 1%, reduced grip strength 6%) and found the injuries to be work-related, then assigned substantial restrictions. He admitted not knowing the number of times Stacy performed various tasks or how much force was used.
Drs. Belhasen and Raichel found the hand injuries work-related, but did not recommend surgery. Restrictions were recommended.
Dr. Martin Schiller saw Stacy for the employer and assigned 0% for the back, and “psychosomatic complaints” due to secondary gain for the wrists. He stated that Dr. Hughes did not know how to use the Guides, and Hughes’ opinions were not supported by the Guides.
Dr. Gabriel examined the hands for Austin Powder and thought the complaints were most likely related to genetic factors and other comorbid medical risk factors.
Drs. Jones and Ormond assigned 2%, attributing the impairment to the exposure.
The ALJ relied on Dr. Hughes and awarded PTD.
On appeal, the WCB found Hughes’ assignment of impairment based on Stacy’s loss of grip strength and lumbar spine were not supported by the Guides, however, the determination of the rating for loss of wrist range of motion was appropriate. The WCB affirmed the 6% to the wrists, but vacated the other ratings, as well as the finding of PTD.
The COA affirmed the issue on the low back and wrist impairment ratings, and affirmed the WCB on remanding for findings for medical benefits for the low back. The COA also affirmed the 6% and that the ALJ did not abuse his discretion by relying on Dr. Hughes’ 6% wrist-related impairment rating.
Procedural History: The ALJ found Keith to be permanently totally disabled from an occupationally noise-induced hearing loss and from work-related repetitive trauma to his wrists and low back. 
Issues: 1.) Did the ALJ properly rely on the opinion of Dr. Hughes for Stacy’s injury claim?
2.) Was it necessary for Dr. Jones to know the decibel level of noise to which Stacy was exposed at work?
Holding: 1.) Yes
2.) No
Reasoning: 1.) This answer has several components, which we will address one by one.
The Guides say that if active range of motion shows a deficit, an evaluator should test passively. Because Hughes thought he would cause Stacy pain if he did a passive exam, he only did the active.
The issue is not whether Stacy had a decreased ROM, everybody agreed that he did. This issue was did Hughes appropriately arrive at the rating based on his findings. The Guides state that measurements of active motion take precedence, therefore, Hughes’ clinical judgment to forego passive ROM testing was not beyond acceptable practice.
Further, there was no evidence that the rating assigned by Hughes was not supported by his findings or that it was in excess of the ratings provided for in the Guides.
Secondly, while Dr. Hughes could not state that Stacy repetitively used his arms and hands at work, this did not make his testimony insubstantial, just maybe less credible. There is no authority that says that a physician who lacks specific information regarding the nature of an employee’s work is foreclosed from expressing an opinion regarding causation.
Third, Dr. Hughes did render an opinion concerning the source of Stacy’s pain.
Fourth, there was evidence concerning arthritis, and Hughes did not rely solely on Stacy as the source of that information.
Fifth, the existence of a harmful change can be established indirectly through information gained by direct observation and/or testing applying objective or standardized methods that demonstrated the existence of symptoms of such a change.
2.) The ALJ was free to believe Stacy’s assessment of the noise level of the drill, as was Dr. Jones. Furthermore, based on Stacy’s testimony that he did not realize he had a hearing loss until tested in September, 2012, the ALJ was free to infer Stacy’s hearing loss was caused partially, if not wholly, by his work for Austin Powder.
Disposition: Affirmed
ALJ: Hon. R. Scott Borders

Case Name, Citation, Author:  Kemal Zvizdic v. Kentucky Trailer; WCB No. 201470915; Rechter (With Alvey Dissenting); Entered 9/1/2017
Facts: Zvizdic suffered an intraarticular distal radius fracture with shortening in the left wrist from an August 12, 2014 fall. On 9/15/2014 Dr. Huey-Yuan Tien performed an open reduction internal fixation. Dr. Tien did not think Zvizdic was progressing satisfactorily, and then performed left carpal tunnel release surgery on 1/29/2015. On 3/11/15, Dr. Tien noticed CRPS and recommended a stellate ganglion block, and eventually pain management which was refused. On May 20, 2015, he found MMI.
Dr. Ronald Burgess performed an IME on 4/16/2015 finding MMI, no evidence of CRPS, and assigning a 5% whole person. No future treatment was needed.
Dr. Jeffrey Fadel performed an IME on 6/18/2015, finding MMI, and assigning 29% whole person, 3% of which he assigned to CRPS. He went on to state that the standard of care in his orthopedic community following a diagnosis of CRPS was to have an evaluation by a reputable pain management physician.
Surveillance video showed Zvizdic pushing a lawn mower and driving a motor vehicle.
Dr. Tien eventually agreed with Dr. Burgess’ 5%, and a RTW w/o restrictions.
The 12/21/2015 Interlocutory Oder ALJ Polities rejected Zvizdic’s request for PPD, and instead ordered TTD and medicals. He opined that the treating doctor, and Dr. Fadel both recommended additional treatment, and the ALJ felt that perhaps with that treatment Zvizdic’s disability might lessen. Zvizdic argued against these findings, but was overruled, the ALJ stating that he felt the substance of the medical opinions indicated that Zvizdic was in need of further treatment and to confirm the diagnosis of CRPS.
A few weeks later Kentucky Trailer submitted medical reports of Dr. Dean Collis who evaluated on 2/29/2016 at Dr. Tien’s request, and who found no signs of causalgia or reflex sympathetic dystrophy. No injective therapy was recommended. An office note from Dr. Tien did not recommend a ganglion block.
Kentucky Trailer also submitted a letter from Dr. Burgess confirming his prior rating was pursuant to the Guides. Zvizdic moved to strike as an impermissible attempt to rehabilitate otherwise insufficient evidence, which was overruled
Following transfer to ALJ Weathrby, an Opinion and Award was entered on March 6, 2017 determining that ALJ Polities’ decision to place in abeyance was “made in good faith”, and the evidence submitted by Kentucky Trailer after the Interlocutory Order was permissible because it came in “as a result of” the directives of the Interlocutory Award, and then relied upon the 5% of Drs. Tien and Burgess, and awarded PPD.
Procedural: Zvicdic appeals from the 12/21/2015 Interlocutory Order of ALJ Polites and the 3/6/2017 Opinion and Order of ALJ Weatherby, arguing ALJ Polites arguing  that ALJ Polities erroneously placed his claim in abeyance, and that ALJ Weatherby’s decision is not supported by substantial evidence.
Issues: 1.) Did the ALJ err when he found that Zvizdic was not at MMI as of the date the Interlocutory Order was entered?
Holding: 1.) Yes
Reasoning: 1.) It was outside the ALJ’s authority to reject the uncontroverted medical evidence indicating Zvizdic was at MMI as of the date of the Order. It was apparent the ALJ was attempting to procure further treatment for Zvizdic, and sympathized with his difficulty in obtaining the blocks. The proof, however, does not support the ALJ’s assertion that additional treatment could result in a reduction in Zvizdic’s impairment and disability.
The WCB commented that Kentucky Trailer gained an advantage from the Interlocutory Order because the issue of permanent disability remained open and Kentucky Trailer enjoyed the opportunity to resuscitate Dr. Burgess’ opinion by virtue of the Order.
On remand, the ALJ was ordered to exclude any proof submitted after the date of the Interlocutory Order and to reconsider the claim.
Disposition: Reversing and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Steven Varney v. Fortress Resources. LLC; WCB No. 201601907 & 201601662; Alvey; Entered 8/31/2017
Facts: The facts of this case are simple and straightforward. The ALJ dismissed Varney’s claim on June 26, 2017. No petition for reconsideration was filed. On July 28, 2017, Varney filed a Notice of Appeal, and also tendered his brief. This was more than 30 days since the Order Dismissing.
Procedural History: Varney seeks review of the Opinion and Order rendered on June 26, 2017 which found that Varney did not sustain compensable work-related injuries. No petition for reconsideration was filed.
Issues: Was an appeal filed more than 30 days after entry of the ALJ decision timely filed?
Holding: No
Reasoning: The 3 day “mail box” rule was abolished with the new regulations that went into effect in October, 2016. The WCB ruled that it had no jurisdiction to consider the appeal.
This is the first case we have seen under the new regs. The 30 day rule to file an appeal no longer has the additional 3 day extension previously allowed under the regs.
Disposition: Dismissing
ALJ: Hon. Grant Roark

Case Name, Citation, Author:  Shaun D. Miller v. Ford Motor Co; WCB No. 201602030; Alvey; Entered 8/25/2017
Facts: Miller filed his claim alleging cumulative trauma injuries to neck and low back due to  repetitive job duties as an assembler which became disabling on April 30, 2016.
Miller asserted that 4 of this 5 jobs at Ford required repetitive twisting, bending, and looking down, but none required heavy lifting. His last job required him to stand and look down all day.
Miller did not experience any symptoms until April 30, 2016, when he began experiencing low back pain and numbness radiating into the legs, as well as numbness in the pinkie, ring, and middle fingers of both hands.
He was treated by several physicians before being treated by Dr. Joseph Finizio who performed a multi-level cervical fusion surgery on August 30, 2016, and recommended surgery for the low back. He has not returned to work. Medicals were paid by private insurance and Miller receives STD.
When seen by Ford’s medical department following the injury, no one thought there was any occupational cause for the symptoms. In completing a claim for STD, neither the Ford medicals nor Dr. Finizio indicated the problems were related to work.
Ford filed Dr. Thomas Menke who did not believe the bilateral spondylolysis at L4-5 with Grade I arteriolisthesis and degenerative changes at C4-C7 levels with resultant stenosis were not caused by work. There was no evidence of a pre-existing active condition. Treatment was reasonable and necessary, but not related to a work injury.
Miller filed Dr. Jules Barefoot who found his conditions work-related.
The ALJ dismissed, citing lack of causal relationship between the work activities and Miller’s condition.
Procedural History: Miller appeals from an order dismissing his claim for alleged cumulative trauma injuries to his lumbar and cervical spine.
Issues: Was there substantial evidence to support the ALJ’s decision?
Holding: Yes
Reasoning: The ALJ adequately explained why he did not find Barefoot persuasive. Barefoot did not give a detailed explanation of Miller’s job activities and how they led to his cervical and lumbar conditions. On the other hand, Dr. Menke provided a detailed explanation supporting his opinion.
N.B.  The moral of this story is to be sure that your physician is knowledgeable of, and fully explains, the Claimant’s job duties in a cumulative trauma claim.
Disposition: Affirming
ALJ: Hon. John B. Coleman

Case Name, Citation, Author:  Virgie Clinic Pharmacy, Inc. v Sandra Renee West; WCB No. 201495481; Rechter; Entered 8/18/2017
Facts: West sustained injuries to her wrist and upper extremity when she fell standing on a chair at work. She had surgery the following day on her wrist.
West submitted Dr. Nadar’s records. He diagnosed a comminuted fracture of the right distal radius, right shoulder strain with impingement with rotator cuff tendonitis, and cervical strain. He performed open reduction/internal fixation surgery for the wrist fracture on 1/23/14, and rotator cuff arthroscopy with sub-acromial decompression and excision of the lateral end of the clavicle on 6/15/14. He did not believe that West retained the physical capacity to return to the type of work performed on date of injury.
In a 12/16/2015 report, Dr. Nadar assigned an 8% to the U/E for the wrist, which is 5% to the whole person, 13% whole person for the shoulder based on decreased range of motion and the distal clavicle resection, and 5% for the cervical. In a Form 107 on the same date, he assigned 8% for the wrist, 13% for the shoulder, and 5% for the cervical.
In his deposition he was asked about the variation in ROM he obtained versus the PT ROM. He explained the natural variability inherent in ROM, and indicated he was concerned the therapist had been too optimistic in the assessment, or that West had regressed.
Dr. David Jenkinson performed an IME on 11/11/14. His diagnosis was the same, and opined no further treatment was necessary, as well as no restrictions. She could return to her former employment. The cervical was not work-related. He assigned a combined 10%: 6% for the shoulder, 3% for the wrist, and 1% for decreased finger motion.
The ALJ relied on Nadar’s opinion after finding the cervical was not related, and found West had a 5% for the wrist, and 13% for the shoulder, and she could not perform her previous job.
Procedural History: Virgie appeals from an award of PPD for shoulder and wrist injuries, arguing the ALJ abused her discretion by relying on an impairment assessed by Dr. Anbu Nadar and in enhancing benefits by the three multiplier.
Issues: 1.) Did the ALJ correctly use and apply the ratings of Dr. Nadar?
2.) Did the ALJ abuse her discretion in awarding the three multiplier?
Holding: 1.) Yes
2.) No
Reasoning: 1.) The ALJ correctly used the 5% from Dr. Nadar.  Any argument about the 8% was corrected by the ALJ’s finding. No additional finding was necessary. The 13% was acceptable. Nothing in the record indicated Nadar’s ROM testing was invalid at the time of the exam. He explained that there could be variations and why.
2.) The ALJ was free to rely on the testimony of the Claimant regarding this. The ALJ found West to be a credible witness. Further, Dr. Nadar testified at length about the work that West performed. West and Dr. Nadar’s opinion are substantial evidence.
Disposition: Affirmed
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author:  Cheryl Blaine v. Downtown Redevelopment Authority, Inc.: 2016-SC-000081-WC; Hughes: Rendered 8/24/2017; TO BE PUBLISHED
Facts: Here, the KSCt adopted the factual findings of the COA. On 6/26/2007 Blaine sustained a low back injury. She had surgery, and returned to work, eventually filing a claim. It was placed in abeyance. She sustained a second injury on 4/28/2011, again, to the low back. She did not return to work.
Blaine filed a second claim, and her claims were consolidated. The ALJ then entered an award on the first injury of 26%, without enhancement, and a PTD on the second injury. Blaine appealed, and the WCB ordered remand, concluding the CALJ failed to address whether the first injury rendered her totally disabled, and that the CALJ failed to conduct a proper analysis under Fawbush.
Blaine argues that the ALJ had to award either PTD, or PPD enhanced by three, arguing she did not retain the physical capacity to return to the type of work performed at the time of injury.
Blaine had returned to work after the first injury, originally working at home, and then returning to the office after the office moved, and she was no longer required to climb steps. Her wages were equal to or greater than, as stipulated by the parties. Even after the office move, she could not perform all of the duties of her job. The ALJ did not apply any multipliers to this first injury. In its decision, the WCB found the ALJ correctly proceeded to the Fawbush analysis, but erred in the third step of the analysis. Blaine wanted PTD, or, an automatic application of the three multiplier.
Procedural History: The WCB remanded an ALJ decision and ordered the ALJ to determine the appropriate PPD benefits. Plaintiff Blaine appealed, and the COA affirmed the WCB. Blaine now appeals to the KSCt.
Issues: 1.) Does the definition of return to “work” under the statute, as used in KRS 342.730 (1) (c) (2) mean “is fully competitive with non-injured employees without modifications and accommodations of the employee’s disability”?
2.) Did the ALJ err in concluding that after the first injury Blaine continued to earn a wage equal to or greater than her pre-injury wage and would do so for the indefinite future?
Holding: 1.) No  2.) No
Reasoning: 1.) The definition of work simply requires that a person provide services and receive remuneration on a regular and sustained basis based in a competitive economy. Blaine wants the Court to redefine “work”, and, in effect, change the statute. Blaine wants “returns to work doing everything she did before in the same way she did before” without any accommodation or job modification, which the SCt. declined to do.
2.) Blaine stipulated that the AWW after the RTW was greater than before. Blaine now wants to argue that the wages do not reflect the fact that at some point after the first injury, but before the second one, her wages dipped below her pre-injury average wage. While that may be true, KRS 342.730 (1) (c) (2) simply looks at the wage at which the employee returns to work, and the stipulations conclusively establish the RTW at same or greater wages. The ALJ was not authorized to look beyond the stipulation, and neither the ALJ, WCB, or Courts are free to set aside a valid stipulation sua sponte.
Disposition: Affirming
ALJ: Hon. J. Landon Overfield, Robert Swisher

Case Name, Citation, Author:  Bill Gray, Jr. v. James River Coal/Beech Fork Mine; 2016-SC-000349-WC; Memorandum Opinion; Rendered 8/24/2017; Not To Be Published
Facts: The facts are pretty much undisputed. The date of last injurious exposure was 8/24/2009. Gray did not file his claim until 8/22/2104. Gray had filed a federal black lung claim following a physical examination performed by Dr. Baker on 2/5/2011 in which Dr. Baker found chronic lung disease secondary to coal miner employment.
The WCB stated that under KRS 342.316 (4) (a) that Gray was required to file within three years after his last injurious exposure or three years after he first experienced a “direct manifestation” in the form of symptoms. The WCB ruled the positive X-ray reading constituted a symptom since it was a “morbid phenomenon or departure from the normal structure of the lung indicative of the disease of CWP.”
Procedural History: The ALJ dismissed the claim as time-barred under the 3 year statute of limitations in KRS 342.316 (4) (a). The WCB and COA both affirmed.
Issues: Was the x-ray finding of 2/5/2011 a symptom sufficient to trigger the 3 year requirement of filing as found in KRS 342.316 (4) (a)?
Holding: Yes
Reasoning: Gray was informed of changes to his lungs and his mild pulmonary impairment, and filed a federal black lung claim. There was a “distinct manifestation” of CWP as of that date and his 3 year statute of limitations began to run.
Disposition: Affirmed
ALJ: Hon. J. Landon Overfield and Robert L. Swisher

Case Name, Citation, Author:  Larry Kidd v. Crossrock Drilling, LLC; 2016-SC-000406-WC; Vanmeter, Justice; Rendered 8/24/2017; TO BE PUBLISHED
Facts: Following a hearing, Plaintiff’s counsel and Crossrock’s insurer engaged in settlement negotiations which resulted in an agreement in which the insurer was to pay $55,000.00, lump sum. Kidd’s attorney was to prepare the documents. The ALJ and Crossrock’s attorney were unaware of the talks.
Four days prior to the understanding, and unbeknownst to Kidd’s attorney and the insurer, the ALJ issued an Opinion and Award which had a total value of about $17,600.00.
Kidd filed a petition for reconsideration based on the settlement reached prior to the receipt of the opinion. The ALJ rejected, concluding the settlement had not been presented on a Form 110, or by a verified motion to adopt the settlement agreement, and, thus, the settlement was outside the scope of a petition for reconsideration.
Procedural History: The ALJ did not give effect to a settlement agreement reached after the issuance of his Order and Opinion, and raised in a petition for reconsideration. The WCB and the COA affirmed.
Issues: Did the ALJ err in failing to give effect to a settlement agreement reached after the issuance of its order and Opinion, and raised in a petition for reconsideration? Was the issue of the alleged settlement properly preserved? Was the settlement properly introduced into the record for the ALJ to consider?
Holding: No
Reasoning: In the absence of a Form 110, Kidd was required to file a verified motion with the correspondence and sufficient documentation, which taken together, comprise a complete memorandum of the agreement. Without a verified motion, or a Form 110, the ALJ could not examine the terms of the agreement.
In a strong dissent, Judges Wright and Cunningham argued this was a case of form over substance, and could have been easily corrected. The ruling is contrary to the purposes of the Act. The legal arena should not be a large scale game of “gotcha” where people win or lose based on technicalities.
Disposition: Affirming (With Dissents)
ALJ: Hon. Steven G. Bolton

Case Name, Citation, Author:  Slater Fore Consulting Inc. v. Leslie B. Rife; 2015-SC-000778-WC; Memorandum Opinion Rendered 8/24/2017; Not To Be Published
Facts: While making a delivery Rife tripped, striking his head on a beam. Cervical complaints lead to cervical fusion and post-operative complications. While in intensive care, Rife fell trying to get up from a chair, injuring his low back which eventually required lumbar fusion. He did not RTW and sought compensation for the neck and low back injuries as well as a neurocognitive disorder stemming from an alleged traumatic brain injury at the time of the original fall.
Rife presented Dr. Jules Barefoot who assigned a 28% to the neck, with 10% attributed to a 2008 injury and surgery, and 32% for the lumbar for a combined 44%. Rife was totally disabled. He was working with no complaints or restrictions at the time of the injury.
Slate presented Dr. Thomas O’Brien who assigned no PI to the neck, all was pre-existing. Dr. Henry Tutt found no PI due to the injury and 33% to the cervical and lumbar areas, all related to pre-existing conditions. Two additional witnesses reported no traumatic brain injuries.
The ALJ adopted the 44%, and found Rife to be totally disabled. The WCB affirmed in its entirety, but remanded the issue of cognitive injury to the ALJ for a determination as to the appropriate impairment rating.
Procedural History: The ALJ awarded PTD to Rife following work injuries. The WCB and COA both affirmed.
Issues: 1.) Did the ALJ err in finding that Rife’s cervical condition was attributable to the work Injury?
2.) Was the lumbar injury suffered when Rife fell in the intensive care section of the hospital while recovering from the cervical surgery causally related to the work injury?
3.) Did the ALJ err by not recognizing the evidence of prior problems with the neck and lower back and reducing any award accordingly?
Holding: 1.) No  2.) Yes  3.) No
Reasoning: The ALJ found Rife to be credible. In addition, the ALJ did take the pre-existing into account by using Barefoot who apportioned 10% of the cervical to the pre-existing surgery.
2.) Rife was confined to the hospital following cervical surgery necessitated by his work-related injury. It was during medical treatment when he could not be held accountable for his acts.
3,) Rife may have had a pre-existing impairment of the neck and back but that did not equate with a pre-existing disability. In so stating, the SCt. relied upon Roberts Bros. Coal Co. v. Robinson, 113 S. W. 3d 181 (Ky. 2003)
Disposition: Affirmed
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author:  Trim Masters, Inc. v. Eva Beth Roby; 2016-SC-000451-WC; Memorandum Opinion; Rendered 8/24/2017; Not To Be Published
Facts: We discussed this case previously, and highlighted the frustration that the WCB was obviously having with the ALJ. At this point, the facts are not significant, but, what is significant, is the fact that the WCB took it upon itself to set aside an award of PTD, and ORDER an award of PPD in response to what it felt was a running battle with the ALJ, whom the WCB felt was ignoring its directives.
Procedural History: After the ALJ wrote his fourth opinion still finding the Claimant PTD, the WCB said he failed to follow directions, set aside the Award, and ordered the ALJ to find a partial award. The COA said you can’t do that, and reversed the WCB. This appeal followed. The SCt. agreed with the COA.
Issues: Did the WCB correctly set aside an award of PTD and order that the ALJ enter an award of PPD, after what it perceived to be a failure to follows its directions after the first 3 remands?
Holding: No
Reasoning: This time, the opinion of the ALJ was not deficient in its findings as the WCB opined. The COA stated that the WCB should not just “rubber stamp ALJ opinions that do not meet the requirements of KRS 342.285.” The solution for deficient opinions is to require more thorough opinions, and not to make independent findings of fact which the WCB did here.
Disposition: Affirming
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author:  Bullitt County Technology Center v. Denise Harned; WCB No. 201365071; Stivers; Entered 7/7/17
Facts: Harned alleges injuries on 8/13/2013 while practicing “training moves” for dealing with an out-of-control student.
Prior to this work-related injury to the low back, Harned was treated by Dr. Jay Grider for Complex Regional Pain Syndrome (“CRPS”) for which she was on restrictions imposed by Dr. Grider. She had responded well to treatment. At the time of her work-injury, Dr. Grider believed that the activity in which she was injured would be outside of her work restrictions.
Dr. Grider also recommended a new spinal cord stimulation system for pain from the work-injury that was separate and distinct from the pain she experienced before the injury, including symptomology that was on the opposite side of her body. This spinal cord stimulator was the subject of the MFD filed by the employer.
Dr. Jules Barefoot examined Harned, and she filed his report. He diagnosed right L3-4 disc herniation, and status post L3-4 right lumbar discectomy, and chronic pain, inter alia. He assigned several restrictions, and found her at MMI unless no further treatment was available.
There is but scant reference in the opinion given to Dr. Russell Travis, who saw the Plaintiff for the employer. Travis had opined that Harned had symptom magnification, which Dr. Grider took him to task on in disagreeing. Then in his opinion, the ALJ states that he was simply not persuaded by Dr. Travis’ opinion, the details of which are not set forth in this WCB opinion.
Procedural History: Bullitt County appeals from the ALJ award of TTD, PTD, and medical benefits.
Bullitt argues 4 points:
1.) The determination of PTD is premature as the ALJ must first decide a MFD;
2.) The ALJ failed to make sufficient findings of fact in support of the PTD award;
3.) The ALJ failed to make sufficient findings of fact regarding Harned’s failure to follow reasonable medical advice; and,
4.) The ALJ failed to address the issue of carve-out of 76% for pre-existing disability.
Issues: 1.) Was the ALJ required to decide a MFD before his finding of PTD, if the finding on the MFD would determine if Harned was at MMI or not?
2.) Did the ALJ perform a proper legal analysis in finding permanent total disability?
3.) Did the ALJ set forth sufficient findings of fact regarding Harned’s alleged “unreasonable failure to follow medical advice”?
4.) Did the ALJ err by not reducing Harned’s PTD award by 76%?
Holding: 1.) Yes  2.) No  3.) Yes  4.) No
Reasoning: 1.) The MFD was listed as an issue on the BRC Order. In his finding on PTD, the ALJ used Dr. Barefoot’s 13% rating. This was conditioned by Dr. Barefoot, however, by finding Harned was at MMI only “if no further treatment is available.” Here, the ALJ must first decide the MFD as to the reasonableness, necessity and work-relatedness of the spinal cord stimulator proposed by Dr. Grider. If the stimulator is necessary, then Harned is not at MMI. If not, then it would be reasonable to assume that Harned was at MMI.
2.) The ALJ failed to engage in the appropriate analysis of the factors in Watson Department Store v. Hamilton. The ALJ only cited the restrictions as espoused by Dr. Barefoot. On remand, the ALJ must set forth a complete analysis which includes specific findings regarding Harned’s post-injury physical, emotional, intellectual, and vocational status and how those factors interact and effect Harned’s ability to perform any type of work. A mere recitation of the restrictions is not sufficient.
3.) Citing no authority, either by statute or case law, the WCB nevertheless espoused that the defense set forth in KRS 342.035(3) is not available to a defendant/employer when a different body part is affected in the subsequent injury. Dr. Grider’s restrictions given to Harned were imposed for complex regional pain syndrome (“CRPS”), which was the result of a MVA. The work-related injury at issue is a separate and distinct injury with separate and distinct symptomology from Harned’s CRPS.
Even if the defense were available here, the ALJ had found Harned was pressured into participating in the training session, therefore Harned’s failure to follow Dr. Grider’s advice was not unreasonable.
4.) The ALJ relied upon Dr. Grider’s testimony comparing Harned’s pre-injury symptomology to her post-injury symptomology. Dr. Grider testified that Harned became symptomatic and required narcotic medication only after the work injury. He also testified that Harned was off all narcotic pain medication at the time of the work injury. Thus, he could reasonably infer that Harned was not suffering from an active and impairment ratable pre-existing condition at the time of the work injury.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Richard Rohland v. Cox Interior, Inc; WCB No. 200986519; Alvey; Entered 7/7/17.
Facts: Cox filed this MTR and MFD challenging the procedure recommended by Dr. Mehta. Dr. Nemeth opined the current symptoms and the request for surgery were not related to the work injury, and the challenge was based on work-relatedness and causation.
Following the original injury in 2009, Dr. Mehta diagnosed AC joint injury Grade II separation followed by post-traumatic AC joint arthritis with impingement syndrome and recommended surgical intervention. Surgery was performed May, 2010. During the surgery, Mehta noted 2 tears, but indicated that Rohland was not symptomatic enough to perform surgery, but further surgery may be necessary.
Dr. Mark Smith had seen the Plaintiff in the original claim, and, while not agreeing with work-relatedness, assessed a 9%, which the ALJ used, and further found the proposed surgery was a reasonable and necessary treatment of the rotator cuff tear, but not related to the injury.
In the original opinion, the ALJ found the injury work-related, as well as the need for subsequent treatment and surgery. The ALJ noted in her opinion that should further surgery be recommended for progression of the injury and symptoms, it would be reasonable and necessary. Subsequent to the award, the parties entered into an agreement for a lump-sum award, with Rohland retaining medical benefits.
Rohland saw Mehta again in 2014 for the shoulder, and, after continuing treatment, in February, 2016, recommended surgery.
Cox filed Dr. Greg Gleis’ 8/15/2016 report, and, after review of MRIs and finding the tear was “new”, opined against the surgery, including any right shoulder joint replacement.
In his opinion, the ALJ found Dr. Nemeth’s opinion most persuasive, problems were related to aging, and nothing connected the condition to the work-injury, and found the surgery non-compensable.
Procedural History: Rohland appeals from an order resolving a MFD in favor of Cox. The ALJ found the contested arthroscopy and mini rotator cuff repair recommended by Dr. Sanjiv Mehta non-compensable.
Rohland argues that the ALJ erred in relying on the U/R of Dr. Nemeth since he had not reviewed neither Dr. Mehta’s nor Dr. Mark Smith’s opinion, nor the original Award of ALJ Jones. It argues that the ALJ overlooked controlling precedent in failing to properly consider the findings of ALJ in her original award.
Issues: Did the ALJ overlook controlling precedent in finding the challenged surgery non-compensable?
Holding: Yes
Reasoning: It was unclear whether the ALJ specifically considered the findings made by ALJ Jones in the original award, despite Rohland’s request that he make additional findings of fact. The ALJ had found this surgery to be compensable. On remand, the ALJ was directed to consider and address the prior ALJ’s findings regarding the second surgery, and to determine if the principle of res judicata applied in this case. Then, a decision must be made based on the appropriate standard, and in accordance with the evidence and facts of the case.
Cox had also argued that Rohland did not file a valid petition for reconsideration since he only requested additional findings of fact and failed to file proposed order. In the absence of a valid petition, the time for filing a notice of appeal is not stayed. The WCB simply stated in one sentence the petition was valid and timely, and therefore the appeal was timely filed.
Disposition: Vacating and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Ormsco, Inc. v. Gary Blackburn; WCB No. 201491750; Alvey; Entered 6/30/2017.
Facts: Blackburn filed his Form 101 alleging he sustained a back injury while working on March 7, 2014.
After the diagnosis of a compression fracture at L3, Dr. Jean Page performed kyphoplasty to repair the fracture. Blackburn also treated with Dr. Shelley Stanko, his PCP.
The office notes of Dr. Page noted that Blackburn underwent reduction and internal fixation by kyphoplasty, and the fracture was reduced almost 90%. Prior to the surgery, Blackburn had experienced approximately 50% loss of the vertebral height of the L3.
Blackburn filed the Form 107 of Dr. Arthur Hughes who diagnosed Blackburn as status post kyphoplasty for the L3 compression fracture, along with persistent LBP, and left lower radicular pain, all due to the work injury. He assessed a 13% rating under the Guides for the compression fracture, although this was based on an X-ray taken before the surgery. He did not believe Blackburn to be at MMI, but could be considered as such if he had no further treatment. He did not review any pre or post-surgery films.
Blackburn filed a Form 107 by Dr. Stephen Autry who noted the L3 compression fracture. He also noted a new injury, and a compression fracture at L4, unrelated. He assessed 13% for the compression fractures, but did not specify the percentage attributable to each.
Ormsco filed a report of Dr. Ron Fadel who diagnosed L3 compression with no radiculopathy and noted MMI on 10/2/2014.
Dr. Timothy Kriss evaluated Blackburn at Ormsco’s request on 12/23/2015.He thought the kyphoplasty successfully restored vertebral height, and the reduction was less than 25%, and assessed 5%. MMI was 10/2/2014.
The ALJ ruled that Blackburn sustained an L3 compression fracture, relying on Dr. Hughes and Dr. Autry, and basing his rating (13%) on the height prior to the surgery, rather than when he reached MMI.
Ormsco argues on appeal that the rating should be based upon Blackburn’s condition at the time he reached MMI, not upon the initial findings prior to surgery.
Procedural History: Ormsco appeals from an Award of TTD, PPD, enhanced by “2”, and medical benefits to Blackburn for a compression fracture injury to the L3 vertebra he sustained at work. Ormsco argues that the AMA Guides require an impairment rating to be assessed based on a condition as it exists when an injured worker reaches MMI, not upon signs or symptoms prior to that time.
Issues: Did the ALJ err when he used a rating based on the Plaintiff’s condition before reaching MMI?
Holding: Yes
Reasoning: The impairment rating of Dr. Hughes was based on an X-ray prior to undergoing corrective surgery. He did not review any post-surgical studies. This was also based upon an assessment before MMI or a release to RTW.
Dr. Autry’s assessment was invalid because it was inclusive of a rating for L4, which was not work-related, and there was no apportionment.
Disposition: Affirming in Part, Vacating in Part, & Remanding
ALJ: Hon. John B. Coleman

Case Name, Citation, Author:  Duraflame, Inc. v. Debbie Hampton; WCB No. 201560244; Alvey; Entered 7/7/2017.
Facts: Hampton filed a Form 101 alleging bilateral CTS and a low back injury due to cumulative trauma, identifying 9/21/2105 as the date of injury. This was later amended to 11/16/2015, the last day she worked for Duraflame.
Hampton testified that she had a low back condition for years, with no specific injury, and that no one had told her the condition was work-related. She began experiencing symptoms in both upper extremities just after she started working at Duraflame in 2000 or 2001. She saw Dr. Jenkins in 2001 who told her that the condition was related to work, and prescribed splints which she used. She next saw treatment in 2014 or 2015. After testing, Dr. Margaret Napolitano performed CTS releases in both extremities. Dr. Napolitano noted the symptoms began in June or July, 2015. The surgeries provided no relief. In spite of this she was released to RTW w/o restrictions. She found MMI, and no assessment for a rating.
Hampton also filed the May 19, 2016 report of Dr. Frank Burke who diagnosed Hampton with development of progressive bilateral CTS with both motor and sensory components, attributing her condition to work at Duraflame. He found MMI and assessed a 4% rating for the bilateral CTS.
Dr. Burke also noted radicular pain component in 2015 and completed a work-up for chronic progressive LBP with newly evolved radicular pain. This too was work-related, and he assessed a 7% rating. Restrictions were given.
Counsel for Hampton sent Dr. Burke’s report of 5/19/2016 to Duraflame on 6/2/2016 notifying it of low back and CTS conditions.
Duraflame filed the report of Dr. Daniel Primm who diagnosed a history of bilateral CTS releases without good clinical result and age-related degenerative disc disease of the spine. There was no evidence of a ratable impairment for either condition. The back was not work-related.
The ALJ adopted the 4% for the CTS and 7% for the LB. The low back was due to cumulative trauma and no pre-existing active. The rating for the wrist was incurred within the 2 years before her manifestation of the cumulative trauma on 11/16/2015.
Procedural History: Duraflame appeals from the Award finding Hampton provided due and timely notice of her low back and bilateral carpal tunnel syndrome, and finding the claim was not barred by the statute of limitations. The ALJ ruled these conditions were due to cumulative trauma and awarded PTD and medicals.
Issues: 1.) Did the ALJ err in finding a cumulative trauma injury to the low back rather than an acute injury?
2.) Did the ALJ correctly analyze the issues of notice and statute of limitations for the bilateral CTS claim?
Holding: 1.) No
2.) No
Reasoning: 1.) The ALJ relied on Dr. Burke and Hampton’s testimony. Burke was well aware of the physical activity involved. Hampton did not testify as to any acute injuries or single traumatic events, rather he had back problems on and off for years while engaging in repetitive work activity.
2.) The ALJ failed to clearly determine the date of manifestation and only addressed the statute of limitations for the bilateral carpal tunnel claim. She used the date the employer began voluntarily paying TTD as the manifestation date, November 17, 2015. In the order on reconsideration, she used the date of manifestation as 11/16/2015, the date Hampton ceased working due to the bilateral carpal tunnel symptoms.
Notice is due when the injury becomes manifest, here either 11/16 or 11/17, there is little difference. Duraflame had adequate notice based on the fact it timely instituted voluntary TTD benefits for the CTS.
The problem, however, is with the ALJ’s notice/statute of limitation analysis for the bilateral CTS condition. The ALJ did not determine the date of manifestation of Hampton’s bilateral CTS condition based upon when she first learned she had sustained a gradual injury AND knew it was due to her work. Rather, the ALJ utilized the date when Hampton stopped working and began receiving voluntary TTD benefits from Duraflame.
On remand, the ALJ was directed to determine the date of manifestation for Hampton’s bilateral CTS condition pursuant to Randall Co. v. Pendland, et al. In addressing the date of manifestation, the ALJ must specifically address Hampton’s testimony indicating Dr. Jenkins had informed her in 2000 or 2001 that her bilateral wrist symptoms were caused by her work activities. He can then address whether Hampton provided due and timely notice of her CTS condition, and whether the statute of limitations barred her claim.
Dr. Burke’s report was clearly the date of manifestation for the low back, and notice was given immediately, and the claim filed immediately.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author:  Steven Price v. Toyota Motor Manufacturing Kentucky; No. 2017-CA-000560-WC; Kramer, Chief Judge; Rendered 7/28/2017; Not to be Published
Facts: On 2/3/2004 Price tripped and injured his left foot/ankle and right knee, undergoing surgery for both conditions. After treatment, the adjuster asked the treating physician, Dr. Sammarco, for an impairment rating. He assigned 4% for the ankle/foot. A Form 110 settlement agreement was entered. The injury was described as “left ankle/foot and right knee”. Under “medical information”, both injuries and surgeries were listed. Since the agreement, Plaintiff has had 2 surgeries to the right knee, both of which WC paid for.
Price argues that the monetary consideration in the settlement was for the left ankle/foot only, and not the knee. The employer argues that the only recourse for the Plaintiff was a Motion to reopen.
Procedural History: Price seeks review of an ALJ opinion dismissing his claim against Toyota for PPD for a right knee injury Price sustained over 10 years prior. Specifically, the ALJ determined that Price’s injury had been the subject of a prior settlement agreement he had entered into on 8/21/2006, and the course of action Price should have followed was a Motion to Reopen. The WCB affirmed.
Issues: When the Form 110 settlement agreement for PPD income benefits was based on a 4% impairment, which was derived from the 4% impairment for the left foot/ankle, should the settlement agreement be interpreted as only addressing the left foot/ankle injury, and not also the right knee injury?
Holding: No
Reasoning: The intention of the parties must be gathered from the whole context of the agreement. The subject matter of the settlement agreement was a singular event of injury. Whenever the agreement referenced the injury, it was described as collectively involving “left ankle/foot and right knee.” This included medicals paid for both body parts, as well as TTD.
Price should have filed a Motion to reopen.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  Christina Moore v. Uspiritus, Inc.; WCB No. 201475716; Alvey; Entered 8/4/2017.
Facts: Moore fell down a flight of stairs injuring her left lower extremity, specifically, fracturing her left calcaneus. Later she added pelvis, low back, and tailbone. She was seen by Dr. Kilambi, and, after PT, was referred to Dr. Dean Collis, who implanted a trial spinal cord stimulator. He then referred her to Dr. Michael Cassaro for a spinal cord stimulator, and, then, to Dr. Lawrence Peters, a pain management specialist, who prescribed medication, a quad cane, and a wheelchair.
Surveillance videos showed activity, but Moore claimed they did not capture all of her activity for the day.
Kilambi diagnosed nondisplaced fracture of the calcaneus, and possible early complex regional pain symptoms (CRPS).
Moore filed Dr. Cassaro who treated for RSD, and, after noting success with the trial stimulator, implanted a permanent one. Moore’s pain worsened, and he diagnosed CRPS, with referral to pain management.
Dr. Peters” records were tendered, handwritten and nearly illegible. He diagnosed the CRPS and assigned a 45% rating.
Lastly, Moore filed Dr. Keith Myrick who diagnosed a healed calcaneus fracture and CRPS, and assigned 45% due to the CRPS diagnosis and Moore’s inability to stand without an assisted device.
Uspiritus Filed Dr. Ron Fadel who diagnose a calcaneal fracture with resulting mild to moderate CRPS. She did not sustain injuries to her pelvis, low back, or tailbone. He noted the video, and assessed 4% based on Table13-15 and Table 17-5. The subjective complaints were not consistent with objective findings.
He noted marked exaggeration and overstatement, with few restrictions.
Moore submitted Dr. Robert Piper, VE, who testified that she would be unable to perform fulltime employment at that time.
Uspiritus filed the vocational report of Dr. Luca Conte. He opined Moore capable of returning to at least sedentary and light work, with the ability to change positions. Her restrictions and functional abilities allowed a return to most of her previous occupations.
The large disparity in the impairment ratings (45% v. 4%) was based the doctors’ differing diagnosis, and use of the AMA Guides. The 45% assessed by the treating physician, Dr. Peters, and affirmed by Dr. Myrick, was based on the use of Table 13-15, of the Guides. Page 343 directs that if a lower extremity needs to be rated for RSD, “use the station and gait impairment criteria given in Table 13-15.” Dr. Myrick said that Moore was placed in Category 4 (40-60%)
“because she cannot stand without the help of an assistive device and due to her diagnosis of CRPS.”
Dr. Fadel diagnosed mild to moderate CRPS, and placed Moore in Category 1 (1 to 9%) of Table 13-15, and assessed a 4% impairment rating.
The ALJ relied on Fadel most because he summarized the medical evidence in the manner most consistent with the ALJ’s impressions.
Procedural History: Moore appeals from an award of TTD, PPD (increased by 3), and medical benefits for injuries sustained in a July 15, 2014 work incident. She argues the ALJ erred by adding a psychosomatic component to her injury in the absence of supporting medical evidence. Also, relying upon Dr. Ron Fadel to the exclusion of other relevant evidence constituted an abuse of discretion. The ALJ’s analysis regarding impairment and PTD was insufficient as well.
Issues: 1.) Was the ALJ required to give more weight to the opinion of the treating physician rather than the evaluating one?
2.) Did the ALJ provide a proper analysis of the evidence in his finding of PPD?
Holding: 1.) No
2.) Yes
Reasoning: 1.) The ALJ has the discretion to choose the physician he or she believes. While attempting to discredit the opinion of Dr. Fadel, the WCB noted that Moore did not argue in his brief that Dr. Fadel’s assessment was not in accordance with the AMA Guides, nor was that raised as a contested issue.
2.) The ALJ clearly identified and explained each medical opinion, vocational report, and all other evidence in rendering his decision. This was more than enough to allow the parties to apprise the basis for his opinion.
Disposition: Affirming
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author:  KTK Mining of Virginia LLC v. Freddy W. Terry; WCB No. 201693759 & 201600475; Stivers; Entered 7/28/2017.
Facts: Terry filed 2 claims. The first was a hearing loss claim and the other work related injuries to several body parts due to cumulative trauma. The claims were consolidated. 
In his claim, Terry described heavy manual labor he performed as a surface miner for many years. He quit working at KTK on 7/2/2012.
Dr. Hughes, following an exam and review of the medical records, diagnosed several injuries to the neck, shoulders, bilateral CTS, bilateral ulnar neuropathy, and low back and bilateral hip pain. He related everything to work, and assigned a 33% whole person impairment. Concerning MMI, he stated:
“He is not at maximum medical improvement. If, however, no further treatment is approved, then he is at maximum medical improvement.” He did not find Terry capable of returning to his previous work.
On cross-examination, Dr. Hughes admitted that on every occasion that he had seen individuals for the Morgan Law Office in workers compensation cases, he had found causation, an AMA impairment, as well as restrictions for the individuals.
The ALJ adopted Dr. Hughes’ findings. She also found Terry at MMI based on the inferences from Dr. Hughes testimony, citing “If, however, no further treatment is approved, then he is at maximum medical improvement as of this date.” She further adopted the findings of University Evaluator, Dr. Brose for the hearing loss, and the 7% under the Guides.
Procedural History: KTK Mining appeals from the Opinion, Award, and Order that found Terry totally and permanently disabled, arguing the award is not supported by substantial evidence and the ALJ’s analysis regarding the credibility of Dr. Arthur Hughes is erroneous.
Issues: 1.) Was the AMA rating assessed by Dr. Hughes assigned before Terry had reached MMI?
2.) Was the analysis of the ALJ concerning Terry’s entitlement to PTD sufficient?
3.) Was the “credibility analysis” pertaining to Dr. Hughes erroneous, as Dr. Hughes had testified in his deposition that he had never failed to find impairment and causation?
Holding: 1.) No  2.) Yes  3.) No
Reasoning: 1.) Relying on the reasoning found in an unpublished Court of Appeals case, Shirley Miller v. Go Hire Development, Inc., No. 2014-CA-000379-WC (October 9, 2015), the ALJ could logically infer that Dr. Hughes believed Terry was at MMI on the date of the examination. As the ALJ order said: “Dr. Hughes statement infers that Mr. Terry’s condition was more likely than not to remain static and stabilized  with no further anticipated recovery or deterioration and he was at MMI at the time of Dr. Hughes’ examination.”
2.) The analysis spanned over 2 pages and the various factors in Ira Watson case were fully discussed. The decision must simply adequately set forth basic facts upon which the conclusion was drawn so the parties are reasonably apprised of the basis of the decision.
3.) The WCB acknowledged the testimony of Dr. Hughes, and said this is clearly an issue of credibility that rests solely with the ALJ as fact finder.
Notably, in his Opinion, the ALJ pointed out the irony concerning the allegations about Dr. Hughes, stating: “…the same could be argued regarding the medical witnesses for the defendant. It should be noted that the three medical witnesses in the claim at bar are the same witnesses in the above referenced Shirley Miller vs. Go Hire case.”
Everyone should consider reading the Miller v. Go Hire case for a discussion of MMI.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author:  Hawkeye Construction v. Thomas Miller; WCB No. 201583347; Alvey; Entered 7/28/17
Facts: The facts herein are simple and straightforward. The ALJ entered an order for TTD, PPD, and medical benefits which he specifically noted in the order was interlocutory.
The order also contained the following language: “The parties have 30 days to resolve all remaining issues, request a hearing or move to submit any remaining issues on the record.” The order further specifically noted that there were issues remaining to be determined.
Procedural History: Hawkeye sought review of an award of PPD, TTD, and medical benefits to Miller.
Issues: Was the Order and Opinion of the ALJ final, when he specifically referred to issues to be determined, left the record open for 30 more days, and identified his order as “interlocutory”?
Holding: No
Reasoning:  An order of the ALJ is appealable only if: 1.) it terminates the action itself; 2.) acts to decide all matters litigated by the parties; and 3.) operates to determine all the rights of the parties so as to divest the ALJ of authority.
It was clear that this Opinion and Order did none of the above.
Disposition: Opinion and Order Dismissing
ALJ: Hon. Grant Roark

Case Name, Citation, Author:  Glenn Gibson v. B Dry Systems of Louisville Inc.; WCB No. 201381131; Rechter; Entered 7/28/2017
Facts: The facts and medical evidence in this case are not particularly significant, but what is significant is the procedural history, post award, which we will discuss.
On January 3, 2017, the ALJ entered an Opinion awarding Gibson PPD and medical benefits. B Dry file a petition for reconsideration contesting the low back, and requesting further findings.
At some point thereafter, the ALJ learned that a staff member had inadvertently issued the wrong opinion. He attempted a conference call with counsel to explain the situation, but only reached defense counsel, but, later speaking with Plaintiff’s counsel. In a January 20, 2017 Order, the ALJ overruled the pending petitions for reconsideration and set aside the 1/3/2017 opinion.
The ALJ revealed he had read another piece of evidence and changed his opinion, but the original opinion had gone out. He realized it when he read the petitions for reconsideration. In the new opinion, he dismissed the low back claim for which benefits had previously been awarded.
The ALJ indicated that the erroneously posted opinion had not included consideration of Dr. Roszell’s evidence.
Procedural History: Gibson appeals from the January 3, 2017 Opinion, Award, and Order, January 20, 2017 and February 10, 2017 Orders on Reconsideration, and a February 22, 2017 Order sustaining a motion to strike.
Issues: 1.) Did the ALJ act within his authority by withdrawing the January 3, 2017 Opinion?
2.) Did the ALJ improperly communicate with counsel, ex parte, prior to the deadline to file a petition for reconsideration?
3.) Was the submission of a report by Dr. Kirsch by the employer concerning causation a judicial admission?
Holding: 1.) Yes,  2.) No,  3.) No
Reasoning: 1.) At the time he withdrew the opinion, there were petitions pending, therefore he retained jurisdiction over the claim at the time it was withdrawn. The error was a clerical error, not a judicial error.
KRS 342.281 permits the ALJ to correct patent errors on petition for reconsideration, including clerical, factual, or legal errors. He may not re-weigh the merits of a case. Having been properly withdrawn, the 1/3/2017 Opinion became a nullity.
2.) The purpose of the communication was not to debate or solicit input from counsel. It was only to apologize and explain what happened, and to advise the opinion would be withdrawn. The phone call was not made for the benefit of one party only.
3.) The report is evidence only, and a statement of his opinion. It is not a statement by B Dry and lacked the formality required of a judicial admission, which is binding.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: Active Care Chiropractic, Inc. v. Katherine Rudd; No. 2017-CA-000469-WC; Clayton; Not To Be Published; Rendered 7/7/2017
Facts: This is a case we had previously reported to you following a WCB opinion, and now a COA opinion.
Rudd sustained a fall at work which eventually required three surgeries to her left shoulder. In September, 2015 she returned to her regular duties at the same hourly rate of pay. On May 2, 2016, Rudd chose to retire.
In the award of PPD benefits, the ALJ increased benefits by the two multiplier as authorized under KRS 342.730(1)(c)2.
Active maintains the ALJ erred in awarding double benefits after Rudd retired because the statute’s purpose is not effectuated by applying the two multiplier to persons voluntarily retiring from both the job for which the benefits are paid and also the work force.
Procedural History: Active Care petitioned the COA to review the WCB opinion affirming the ALJ who awarded the two multiplier to Rudd’s PPD benefits since she had voluntarily retired from the workforce.
Issues: Is voluntary retirement an exception to the application of the double income benefit in KRS 342.730 (1)(c)2 because the purpose of the multiplier, return to work by the employee, is not fulfilled?
Holding: No
Reasoning: Following previous case law, in particular the Livingood case, and the plain meaning of the statute, the COA affirmed the WCB decision.
The COA noted, however, “whether “voluntary retirement” is a reason to apply the double benefit, given the purpose of the statute is to encourage workers to remain in the work force, is a consideration for examination by a higher court.”
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller
C.O. A. Panel: Clayton, J. Lambert, Thompson

Case Name, Citation, Author:  U.S. Smokeless Tobacco Co/Altria Inc. v. Herald Cline; WCB No. 201171798; Stivers; Entered 7/14/2017
Facts: You might recognize this case as we brought it to your attention earlier this year as a COA opinion remanding to the ALJ for further findings.
In the previous ALJ award, the ALJ awarded PPD benefits enhanced by the three multiplier for Cline’s work injury to the right hand. The WCB was affirmed by the COA in its holding that further findings concerning the application of the three multiplier were necessary to determine if Cline had a “permanent alteration in the claimant’s ability to earn money due to his injury.” Specifically “…we remand this case to the ALJ for a finding of fact as to Adkins’ ability to earn a wage that equals or exceeds his wage at the time of the injury for the indefinite future. If it is unlikely that Adkins is unable to earn such a wage indefinitely, then application of Section c (1) is appropriate.” It was noted that the ALJ opinion was limited solely to Cline’s ability to continue in his current job, to the exclusion of other potential factors impacting Cline’s ability to continue earning an equal or higher weekly wage. 
After considering all of the other relevant factors the ALJ found it unlikely Cline could return to other employment and earn the same or greater wages if he leaves his position with the defendant employer, and enhanced the benefits by the three multiplier.
Procedural History: U.S. Smokeless appeals from the Opinion on Remand enhancing Cline’s income benefits by the three multiplier after performing the required analysis pursuant to Fawbush v. Gwinn, as directed by the WCB and Kentucky COA.
Issues: Did the ALJ, as directed by the COA, consider all the additional factors other than whether Cline could continue performing his current job at U.S. Smokeless?
Holding: Yes
Reasoning: The ALJ discussed post-injury AWW and the hourly rate he would have to earn with another employer in order to continue earning at least the wages he earns for U.S. Smokeless. His work experience is limited, and he has limited use of the right hand. Because of lack of evidence of similar paying positions compatible with his restrictions, the ALJ concluded Cline could not return to other employment at same or greater wages upon leaving his current position.
All other factors were considered in the opinion.
Disposition: Affirming
ALJ: Hon. Grant Roark

Case Name, Citation, Author:  Brian Strozzo v. Cesa Contractors; WCB No. 201600540; Rechter; Entered 6/23/2017
Facts: Strozzo worked for Cesa from September 28, 2015 thru December 15, 2015 as a laborer on concrete jobs. He used vibratory tools from time to time.
He began experiencing numbness in his fingertips prior to his employment, but was not under any restrictions. Strozzo suspected concrete poisoning but this was not confirmed. In December, 2015, he was referred to Dr. Scott Sanders who indicated Strozzo was being evaluated for hypothenar hammer syndrome. Dr. Sanders referred Strozzo to Dr. Scott Farner, a hand surgeon, who performed ulnar artery reconstruction and artery sympathectomy to both extremities. 
Dr. Thomas Gabriel conducted an IME on 8/15/2016 and diagnosed bilateral hypothenar hammer syndrome. He thought the condition was caused by a number of factors including arteriosclerotic disease, smoking and use of vibratory tools.
There was testimony as to how much Strozzo actually used vibratory tools. Further, the medical testimony was uncertain as to the cause being from vibratory tools, when the condition actually began, or whether the ulcers on his fingertips or the vascular condition began first. Lastly, in a March, 2016 office visit, Strozzo indicated the condition had begun 10 months earlier.
Procedural History: Stozzo appeals from an Opinion and Order which determined that his bilateral hypothenar hammer syndrome predated his work at Cesa and is not work-related.
Strozzo argues the fact that his symptoms arose prior to his employment did not mandate dismissal of his claim. Also, the ALJ failed to enter findings of fact as to whether he sustained injurious exposure to vibratory equipment while working for Cesa. Finally, he claims the ALJ’s date of manifestation is erroneous, and the ALJ misunderstood the medical testimony.
Issues: Did Strozzo successfully bear the burden of proving a cumulative trauma type of injury?
Holding: No.
Reasoning: Dr. Sanders could not state with certainty the relationship with the hand ulcers and the reduced flow of blood to the hands. He could not conclude whether Strozzo developed sores and ulcers because of the reduced blood flow to the hands, or if the sores and the ulcers were caused by external factors and were unable to heal due to reduced blood flow in the hands.
The WCB concluded that there was no need to address other issues raised by Strozzo as the evidence was not sufficient to support Strozzo, and therefore all other issues were moot.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Bryan K. Byrne v. Owensboro Municipal Utilities; WCB No. 201480159; Stivers; Entered 6/30/2017.
Facts: This was a bifurcated claim in which the ALJ went beyond the scope of the BRC Order and dismissed the Plaintiff’s claim.
Byrne alleged injuries to his right shoulder and upper extremity, using 4/20/2014 as his date, even though he could not identify a specific event. He described his work as moving 500 pound drums repetitively.
OMU introduced the 4/20/2015 IME of Dr. Richard Sheridan who diagnosed a work-related acute right shoulder strain which had resolved. It also introduced the 2/13/2015, Physician Review Report of Dr. Peter Kirsch in which he opined the diagnosis of right AC joint arthritis was not related to a work injury. OMU also introduced the U/R of Kirsch in which he indicated there were no residuals from an injury, and surgery was not medically reasonable and necessary.
Byrne introduced the records of Dr. Gayle Rhodes, an occupational physician, and Dr. Mark McGinnis, an orthopedic. McGinnis stated that an MRI revealed acromioclavicular arthropathy, partial thickness tear of the supraspinatus, and a tear of the labrum, recommending surgery.
A BRC Order reflected that the parties stipulated Byrne sustained an alleged work-related injury. No TTD had been paid, but medicals had. Under issues, the order read: “Bifurcated on the sole issue of compensability of proposed surgery and corresponding TTD.”
When OMU filed its brief, it argued, inter alia, that the claim should be dismissed, in violation of the BRC Order. OMU argued that Byrne did not sustain an injury, in spite of its medical proof.
The ALJ dismissed the claim finding Byrne had not his burden to establish the work-relatedness and causation of the condition requiring surgery.
Procedural History: Byrne seeks review of an order dismissing his claim for failing to meet his burden to establish the work-relatedness and causation of the condition requiring surgery, and dismissing his claim for a right shoulder injury against the employer.
Issues: 1.) Did the ALJ properly bifurcate the claim?  2.) Was the dismissal of the claim proper?
Holding: 1.) No  2.) No
Reasoning: 1.) Before resolving Byrne’s entitlement to surgery, the ALJ should have first determined whether Byrne sustained a work-related injury. If the ALJ concludes that Byrne did sustain a work-related injury, he must then determine the extent of that injury, i.e. whether it is temporary or permanent.
2.) The agreement of the parties, as set out in the BRC order was whether Byrne was entitled to TTD and a surgery. The findings of fact and conclusions of law contain no finding as to whether Byrne sustained a work-related injury.
On a side note, the WCB found OMU’s argument in its brief to the ALJ seeking dismissal of the claim, in contravention of the BRC Order, to be highly improper. OMU had agreed the sole issue to be decided by the ALJ was whether Byrne was entitled to surgery and a period of TTD benefits if the surgery was found to be compensable.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Sandra Johnson v. Adecco; WCB No. 201563578; Stivers; Entered 6/30/2017.
Facts: Johnson filed a claim for benefits alleging work-related injuries to her head, neck, and right shoulder while in the employ of Adecco.
Adecco introduced the December 18, 2007, Opinion, Order, and Award in Claim No. 2006-80814 styled Sandra Parker vs. Newburg Lodging, LLC d/b/a Best Western Hotel of ALJ Lawrence Smith determining Johnson was permanently totally disabled due to a lower back injury sustained on 7/19/2006. ALJ Smith relied upon the 22% impairment rating assessed by Dr. David Changaris and awarded PTD benefits in the amount of $182.33 per week beginning July 20, 2006, and medical benefits.
Adecco also introduced the Form 110 Settlement Agreement in the same claim entered regarding the 7/19/2006 injury, approved by ALJ Smith on May 23, 2008. It was a “compromised settlement based on permanent total disability” of $102,000.00. Any right to additional indemnity benefits was waived.
Adecco then filed yet another Form 110 Settlement Agreement for the 2006 injury which was a final buyout of medical and a RTR.
Among the issues listed on the BRC for this claim was the following: “Motion to resolve Bifurcated on (sic) the (sic) issue of whether the Plaintiff is entitled to additional benefits due to the prior Award of Permanent Total Disability.”
The ALJ found that as Johnson was found to be totally disabled, she was entitled to no additional indemnity benefits.
Procedural History: Johnson appeals from an Opinion and Order determining that Johnson is not entitled to additional indemnity benefits. She asserts that a prior award of permanent total disability (PTD) does not preclude her subsequent claim for benefits.
Issues: Does a prior award of PTD benefits preclude an award of benefits for a subsequent injury where the parties to the prior award have reached a settlement regarding the PTD benefits due?
Holding: No
Reasoning: The compromised settlement agreement does not negate the finding that ALJ Smith found Johnson to be totally disabled and the award of PTD benefits. The fact that ALJ Smith found Johnson to be totally disabled does not on its own preclude a subsequent award of indemnity benefits in this case.
On remand the ALJ must determine the extent of Johnson’s occupational disability attributable to the 2015 injury.  Should the ALJ determine that Johnson is totally disabled form the 2015 injury, PTD benefits must be offset by the $182.33 PTD benefits awarded in the 2007 Award.
In the alternative,  should the ALJ award PPD benefits, Johnson’s total weekly benefit for this award combined with the previous award of $182.33 per week must not exceed the maximum amount to which Johnson would be entitled had the ALJ adjudged her to be permanently totally disabled due to the 2015 injury.
To hold that upon her return to full time employment, Johnson has no right to income and medical benefits after sustaining a subsequent work injury would defeat the beneficent purpose of the Act.
Disposition: Vacating and Remanding
ALJ: Hon. Jane Rice Williams
Def. Atty.: Thomas L. Ferreri

Case Name, Citation, Author:  Cumberland Mine Service Inc. v. Richard Estes; WCB No. 201500655; Rechter; Entered 4/21/2007
Facts: Estes was a welder, and worked for Cumberland for 12 years in repairing coal and mineral preparation plants. He was not provided with a respirator and there was no dust control.
Dr. Chavda evaluated Estes at the request of the DWC. He read a July 7, 2016 x-ray as revealing category1/1 pneumoconiosis. Pulmonary function testing revealed moderate obstructive airway disease. Chavda diagnosed simple CWP, obstructive airway disease, and emphysema. He stated the disease and any pulmonary impairment resulted from exposure to coal dust in the severance or processing of coal.
Estes submitted the January 10, 2015 x-ray report of Dr. Glen Baker as revealing Category 1/0.
Cumberland submitted the report of Dr. Christopher Meyer who read the January, 2015 x-ray as negative for CWP.
The  ALJ found Chavda’s report most persuasive ad determined Estes suffers from CWP Category1/1 with FEV1 and FVC functions below 80%, but greater than 55%, entitling  him to a 25% disability pursuant KRS 342.732 (1) (b) 1.
Procedural History: Cumberland appeals from an award wherein the ALJ, relying on the report of Dr. Sanjay Chavda, found Estes had proven his CWP claim. Cumberland argues that Chavda’s opinion is insufficient to establish a causal relationship due to his failure to obtain a history of exposure to coal dust.
Issues: Was Dr. Chavda’s report sufficient to establish a causal relationship?
Holding: Yes.
Reasoning: Chavda did receive the 13 year history of exposure when he was provided with a copy of the Form 104, which indicated Estes’ employment exposed him to substances causing occupational disease which he identified as coal dust. He opined, within reasonable medical probability that Estes’ disease and pulmonary impairment is the result of exposure to coal dust. The ALJ acted within his discretion to determine which evidence to rely on.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  James Huff v. Bluegrass Material Co., LLC; WCB No. 201500535 & 201500533; Stivers; Entered 6/30/2017
Facts: Huff filed his Form 101 alleging cumulative trauma injuries to his neck, back, and right shoulder. This was later amended to include cumulative trauma left shoulder and psychological overlay. Also filed were claims for hearing loss and OD of silicosis.
While several medical records were apparently filed, only 2 physicians provided ratings, Dr. Arthur Hughes, and Dr. Gregory Snider.
Huff introduced Dr. Hughes in which he diagnosed bilateral hip and shoulder pain, neck pain, and lower back pain, all related to work-related cumulative trauma. He assigned 0% for the neck, hips, and lower back, and 7% for the right shoulder and 4% for the left.
Dr. Snider diagnosed bilateral shoulder pain, but no cumulative trauma injuries. He assessed 0%.
The ALJ relied on Dr. Hughes and dismissed the claim, simply stating that Huff failed to carry his burden of proof as it related to work related/causation of his cumulative trauma.
Huff contended that Dr. Snider was not provided with any records from Dr. Kelvin Perry, his treating physician, nor given the diagnostics relied upon by Drs. Hughes and Morgan.
Procedural History: Huff appealed from the Opinion and Order dismissing his claims for cumulative trauma injuries, a psychological injury, occupational hearing loss, and occupational disease. Huff argues that the ALJ erred in relying upon the opinions of Dr. Gregory Snider in dismissing his claim for work injuries due to cumulative trauma, and instead should have relied on the opinions of Dr. Arthur Hughes and Huff’s testimony.
Issues: Were the medical records and reports relied upon by Dr. Snider sufficient for him to render a decision?
Holding: Yes
Reasoning: In his report, Dr. Snider provided an accident and treatment history, which included Dr. Hughes’ report. He noted Hughes only assigned a rating for the shoulders. He provided the results of his physical examination, range of motion measurements and the measurements of both arms. In testing grip strength, he felt the Plaintiff gave inconsistent and submaximal effort. Clearly he reviewed Dr. Morgan and Dr. Hughes’ records. The fact that he did not review Dr. Perry’s records did not render his opinions less substantial, rather, such information merely went to the weight to be assigned to Dr. Snider’s opinions.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author:  JCIM v. Meho Suljevic; WCB No. 201571248; Rechter; Entered 7/14/2017
Facts: Suljevic worked as a machine operator, and testified his work involved heavy and repetitive lifting on a daily basis. His low back pain began in 2014. He went to his family who referred him to Dr. Mohammad Majd. After reviewing an MRI, and, some conservative treatment, he diagnosed disc degeneration stenosis and spondylolisthesis at L5-S1. On 10/6/2014 he performed an L5 laminectomy, bilateral foraminotomy with decompression of the L5 and S1 nerve root, transforminal interbody fusion and arthrodesis.
Dr. Warren Bilkey conducted an IME. He diagnosed a lumbar strain, aggravation of degenerative spondylolisthesis with canal and foraminal stenosis. He thought the injury was fully work related and assigned 20%.
Dr. Michael Best performed an IME for JCIM and diagnosed spondylolisthesis, but not work-related, and his work activities did not cause or aggravate this condition, and assigned 20%, not work related.
Dr. Thomas Loeb also did an IME for JCIM, and said there was no work-related injury. He assigned 20%, of which 5% was pre-existing active.
The ALJ relied on Dr. Majd and Dr. Bilkey, stating she believed Majd was most impressive as the treating physician.
Procedural History: JCIM appeals from an award of 20%, enhanced, for a cumulative trauma injury to Plaintiff’s low back. JCIM alleges the ALJ failed to provide a sufficient basis for her decision, and, it was not supported by substantial evidence.
Issues: Did Dr. Majd’s opinion have sufficient detail explaining how Suljevic’s work activities caused his lumbar condition?
Holding: Yes
Reasoning: His report cited the work activities which included repetitive bending and lifting. This is also what Suljevic testified to. In addition, the ALJ also relied on Dr. Bilkey’s opinion which was explicit concerning the connection between the back condition and work activity.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author:  David Witt v. Purnell Sausage Company; WCB No. 201601697; Alvey (Rechter Dissents without Opinion); Entered 7/14/2017
Facts: Witt alleged a 2/21/2015 injury to his right middle and index fingers that were lacerated while in the employ of Purnell. He was referred to Kleinert Kutz where he had surgery. He missed no work, and was initially released to one-handed duty, and then light duty work.
Witt last worked in April, 2015, stating he had been mistreated, and his restrictions were not honored. He eventually agreed that he was jailed from 4/15 thru 8/15 due to a second DUI conviction. That came on the heels of leaving work on 4/2, and never returning. He apparently never presented paperwork that would have authorized a work release.
Witt submitted Dr. Robert Byrd, a physical medicine physician, who diagnosed an extensor tendon laceration with restricted ROM and nerve damage. He assessed a 12%, with restrictions.
Purnell submitted Kleinert Kutz, including Dr. Leon who performed the repair. On 2/3/2015 Witt was placed on light duty for 4 weeks, which actually lasted until 3/24, when he was placed on primarily one-handed duty. Additional surgery was recommended, which Witt declined. Dr. Witt assigned 7%.
Purnell also filed Dr. Corbett, who evaluated on 11/15/2016, and noted no disuse of the right hand as reflected by calluses, dirt impregnation and lack of atrophy, des. He assigned 6%, with no restrictions, despite Witt’s statements to the contrary.
The awarded benefits based on 6%, without enhancement. The 2 was denied because Witt was no longer working due to his own misconduct. No TTD was awarded, as he had returned to work, and had failed to provide information to the employer why he could not perform one-handed work, just quitting instead.
Procedural History: Witt appeals from an Award of PPD benefits based on Dr. Corbett’s 6% rating for injuries to his right middle and index fingers. The ALJ found that neither the 3 or 2 multiplier was applicable, and, further found that Witt was not entitled to an award of TTD benefits.
Issues: 1.) Did the evidence support the ALJ’s finding that Witt was not entitled to the “2” enhancement?
2.) Was the ALJ’s analysis concerning TTD benefits deficient?
Holding: 1.) Yes
2.) Yes
Reasoning: 1.) The burden here was on the employer, which it sustained. Witt was no longer employed due to his “irresponsible” behavior. It was in the ALJ’s discretion to make this finding.
2.) Witt had asked for additional findings on reconsideration which was denied. The ALJ found Witt was not entitled to TTD because he returned to light duty, then abandoned his job. The analysis is not simply whether Witt had been released to light duty while not having reached MMI. The ALJ is required to determine if Witt had been released to return to customary employment, and whether he had actually returned to that employment. On remand, the ALJ must determine if Witt is entitled to TTD benefits during any period prior to reaching MMI.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author:  Shelbe Jane Wolf v. Advantage Resourcing a/k/a Advantage Staffing; WCB No. 201261394; Entered 6/9/2017
Facts: Wolf filed a Form 101 alleging an injury to her left foot, and possibly CRPS, which progressed to her left knee. The ankle injury was not disputed, and the parties entered into an agreement for the left ankle, reserving for the ALJ the determination of whether Wolf suffered from CRPS or RSD, and whether treatment for this condition is reasonable, necessary and related to the original work injury.
Following her injury, Wolf RTW in a sit down position at 8 hours daily, limited to 8 hour shifts. Her swelling persisted, and she eventually saw an orthopedic, who referred her to Dr. Daniel Reynolds, a pain specialist, who diagnosed RSD. She received one injection, without relief, and received meds, PT, braces, etc. She was also referred to an unnamed psychiatrist.
In support of her claim she filed reports/records from Drs. Joseph Zerga, Ellen Ballard Kyle Young, and Warren Bilkey. Several of the physicians who initially supported her claim changed their minds at a later time.
Advantage relied on Drs. George Quill, Timothy Allen, Lucy Cohen, Zerga, Rodney Chou, Ricky Collis, Geeta Ganesh, and Young.
Ironically, the Claimant was originally awarded benefits in an interlocutory order by ALJ Polites based on records and a video originally presented to him. After a reassignment to ALJ Roark, and additional evidence, including video, ALJ Roark found that Wolf suffered from no neurological impairment.
In its opinion, the WCB chose to only summarize the reports and records of Dr. Zerga.
Initially, Zerga diagnosed CRPS. (October, 2014) He also indicated that based on an MRI that Wolf most likely had demyelinating disease (multiple sclerosis), unrelated to work.
In February, 2016, he stated there was no definite findings of CRPS, had some functional overlay, and assigned 5%. She did not meet the criteria for CRPS, and had symptom magnification. In March, 2016, he indicated the need for someone to manage her meds, and narcotics needed to be tapered. She was not totally disabled, and had no physical findings associated with CRPS.
Procedural History: Wolf appeals from an order that she did not develop Complex Regional Pain Syndrome (CRPS) or Reflex Sympathetic Dystrophy (RSD) following a left ankle injury.
Issues: Was the ALJ precluded from making a different factual finding from that issued by ALJ Polites in his interlocutory factual finding on the merits in a subsequent final opinion?
Holding: No
Reasoning: Typically, Bowerman v. Black Equipment Company, 287 S. W. 3rd 858 (Ky. App. 2009) would preclude the ALJ from making a complete change in the factual determination made by ALJ Polites in his interlocutory decision, absent, however, a showing of new evidence, fraud, or mistake.
Here, however, the ALJ reviewed a video tape submitted into the record just 8 days after the ALJ decision. The ALJ clearly provided his reasoning and basis for relying upon Dr. Zerga’s opinion which changed after he had the opportunity to review the video. Unlike Bowerman, subsequent evidence was introduced after the interlocutory decision.
Disposition: Affirmed
ALJ: Hon. Grant S. Roark

Case Name, Citation, Author:  Randy Weaver v. United Parcel Service, Inc.; WCB No. 201200502; Rechter; Entered 6/16/2017
Facts: Weaver, a pilot for UPS developed a respiratory condition for which he was awarded a PPD award based on a 25% impairment, enhanced by 3. This occurred while he was flying over Sweden on 4/23/2010 when he was exposed to volcanic ash.
UPS filed the MTR and MFD to challenge the reasonableness and necessity of Dr. Swapna Chandran’s referral to National Jewish Health in Denver, Colorado.  Chandran thought that National Jewish, a leader in evaluation and management of airway restrictive disorders, could provide a multispecialty approach and intensive therapy. He thought only National Jewish had this capability for this quality and intensity of care.
Dr. Bruce Broudy reviewed records at UPS’ request. He thought referral o National Jewish was reasonable, but not necessary. Places in Louisville could provide that opinion.
The ALJ found the opinion of Dr. Broudy persuasive and determined referral to National Jewish was reasonable but not necessary. Weaver agued any “reasonable” treatment is compensable.
Procedural History: Weaver appeals from an Opinion and Order resolving a medical dispute in favor of UPS. He argues the ALJ erred in finding the disputed medical treatment was unreasonable and unnecessary.
Issues: Was there sufficient evidence to support the ALJ decision?
Holding: Yes
Reasoning: Dr. Broudy’s opinion that there were providers in the Louisville area who were capable of providing a second opinion, and this constituted requisite proof to support the ALJ’s finding that the referral to National Jewish was not necessary.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  James E. Oliver v. SGS North American is original treatment Minerals; WCB No. 201374402; Rechter; Entered 6/16/2017
Facts: On July 9, 2013, Oliver felt a pain in his back and down his legs to his ankles while lifting. There was no pain in the cervical area.
His original treatment was with Dr. Ross Whitacre who diagnosed spondylosis and degenerative disc disease. A lumbar MRI revealed mild multi-level spondylosis with disc bulging, moderate bilateral foraminal narrowing at L5-S1, and an annular tear and small protrusion at L3-4 with encroachment. A referral to Dr. Christopher Sneed, a neurosurgeon followed, and another MRI revealed a herniation at L5-S1, with other smaller herniations and stenosis. He opined that problems throughout the spine were not related to a work injury. He suspected cervical involvement and an MRI showed a moderate to large herniation at C5-6 and smaller herniations and stenosis. An anterior discectomy and fusion was performed at C5-6, with a recommended left L4-5 and L5-S1 decompression.
Dr. Daniel Brown performed an IME and assigned 26% for the cervical (DRE IV), and 13% for the lumbar, with no prior active impairment.
Dr. Christopher Taleghani performed an IME, recommending lumbar surgery which would be related to the work injury.
Dr. Stacie Grossfeld conducted an IME diagnosing a prior active condition for the lumbar, and any proposed surgery was not work-related. She assigned 6% for the lumbar and 25% for the cervical. 0% was based on the work injury. 
Following a second IME, she changed her mind concerning work-relatedness for the neck, and stated she agreed “with Dr. Brown regarding the PPI rating regarding the claimant’s work related cervical spine injury.”
Relying on Dr. Sneed, the ALJ concluded the cervical was work-related, and chose the 25% rating.
Procedural History: Oliver appeals from an award of PPD for his cervical condition, but dismissing his claim for a low back condition. He also argued that the ALJ erred in finding a 25% rating for the cervical condition, rather than a 26% rating.
Issues: Did Dr. Grossfeld “abandon” her 25% rating when she agreed with Dr. Brown, such that the ALJ was no longer permitted to rely on it as substantial evidence?
Holding: No
Reasoning: The ALJ was within his discretion in choosing to rely on Grossfeld. It was within the range provided for DRE IV, and no one stated she had erred in applying the Guides. The statement was not an abandonment of her rating, but an acceptance the injury is work-related, or that she was in agreement with the percentage range that Dr. Brown identified.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author: Hazard ARH v. Sandra Kennedy; WCB No. 199874723; Alvey; Entered 6/16/2017
Facts: Kennedy injured her low back in 1998 for which she was awarded a 5% PPI. This MTR was filed challenging Kennedy’s treatment with Dr. Mukut Sharma inclusive of ongoing office visits, and prescriptions for Celebrex, Tizanidine, Norco, and Lidoderm patches. The issue was whether these were for the work-related injury, and whether they were reasonable.
In support of its MTR, Hazard filed the report of Dr. Gregory Snider, who opined that Dr. Sharma’s treatment is reasonable and productive, but could not state within a reasonable degree of medical certainty that the visits were related to the 1998 injury. Nor could he state the visits each 2 months were required for the treatment of the 1998 injury.
Hazard also filed a form from Dr. Sharma that checked a box that indicated it was impossible to state Kennedy’s conditions a were due to the work injury, or to a mva, or to a fall down.
The CALJ overruled the motion, citing that Hazard had failed to follow the utilization review procedures, and therefore could not contest medical expenses on the basis of reasonableness and necessity in the absence of U/R.
Procedural History: Hazard seeks review of an order overruling its motion to reopen for failing to establish a prima facie case for reopening Kennedy’s case for a determination of whether her medical treatment is compensable.
Issues: 1.) Did the ALJ err in finding that Hazard failed to show a prima facie case for reopening?
2.) Was Utilization Review required in this case before the MTR was filed?
Holding: 1.) No  2.) Yes
Reasoning: 1.)Dr. Snider’s report clearly did not establish a prima facie case for reopening the claim, and the CALJ set forth the reason for his findings.
2.) U/R was required. While work-relatedness was set forth as a basis for the MTR, Hazard also challenged the reasonableness of the challenged treatment. This required a U/R, which was not done. The CALJ provided an adequate analysis regarding why U/R was necessary.
Disposition: Affirming and Order
ALJ: Hon. Robert L. Swisher

Case Name, Citation, Author:  Flat Rock Furniture v. Steven Neeley; 2016-SC-000527-WC; Memorandum Opinion; Rendered 6/15/2017; NOT TO BE PUBLISHED.
Facts: In this case we previously reported to you, and, in which the COA published its opinion, the Supreme Court has given us scarce facts. The Claimant sustained a right eye injury when a piece of wood hit him in the right eye. While there were variations concerning the severity of the injury, multiple physicians agreed that Neeley had a significant injury to the right eye. Both parties stipulated a 17% whole person rating.
In its original remand order, the ALJ was directed to provide an analysis of how he reached his determination of PTD benefits, and, to address Neeley’s alleged injury to the left eye. On remand, the ALJ revised his original order but not the type and amount of compensation awarded.
Procedural History: On an original remand from the WCB, the ALJ again ordered TTD, PTD, and medical benefits, which in turn was affirmed by the WCB and COA. This appeal followed.
Issues: 1.) Did the ALJ rely on records not in evidence, and not in conformity with the regulations?
2.) Did the ALJ flagrantly misconstrue the evidence concerning an injury to the left eye?
3.) Did the temporary restrictions support a PTD finding?
Holding: 1.) No  2.) No  3.) Yes
Reasoning: 1.) In question was a treatment record of Dr. Sanders attached to the Form 101, and later attached to a Form 107, sans a handwritten note of Dr. Sanders. Flat Rock had not objected to the report of Dr. Sanders that was attached to the Form 101, and, further, Flat Rock was well aware of Dr. Sanders and her qualifications, having previously submitted one of her reports, along with her index number. Finally, the hand written report was legible.
2.) While both the WCB and COA had expressed concerns about the ALJ’s treatment of the evidence concerning the left eye, both panels affirmed the ALJ. Other records referenced the left eye, and further, Neeley himself testified about the left eye.
3.) Dr. Sanders’ comments about returning to work were made before Neeley reached MMI. Dr. Sanders had indicated that Neeley would not return to work without “spontaneous improvement.” Her records never showed this occurred, and in fact indicated his condition had worsened.
Although the causation and date of MMI are medical questions, a worker’s testimony may provide adequate support for a finding concerning inability to work at a particular point in time.
Disposition: Affirmed
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author:  Ready Electric v. Thomas Scharringhausen; 2016-SC-000466-WC; Memorandum Opinion; Rendered 6/15/2017; NOT TO BE PUBLISHED
Facts: Scharringhausen sustained serious injuries as an electrician when his supervisor failed to properly secure the lock out tag device on the electrical circuit that would disconnect the fan from electricity so that it could be repaired. While working on the fan, Scharringhausen caused belt he was replacing on a fan to contact the ignition switch and engage the fan. His leg was pulled into the fan causing multiple fractures and injuries.
Ready determined that the failure to lock out was a violation of both company and OASH regulation. The ALJ enhanced benefits pursuant to KRS 342.165(1).
Ready argues that any liability resulting from Phillips’ failure to comply with the lock out mechanism cannot be imputed to Ready as the employer under KRS342.165 because Ready specifically trained its employees on proper Lock out/tag out procedures.
Procedural History: On a prior remand the WCB ordered the ALJ to make specific findings that the safety violation alleged was intentional under KRS 342.165(1) or simply a violation of a general duty. The ALJ made specific findings that the violation was intentional under KRS 342.165(1), which the WCB, and then the COA both affirmed. This appeal followed.
Issues: When an employee fails to follow a specific safety procedure on for which he had been trained, can that liability for a safety violation be imputed to the employer?
Holding: Yes
Reasoning: While echoing the sentiment of the WCB that it was sympathetic for an employer who is penalized despite making every good faith effort to ensure the safety of its employees through policy, regulation, safety meetings, and safety equipment, the failure clearly caused the injury. 
An employer’s intent is presumed if there is a failure to comply with a specific statute or regulation, and if the violation in any degree causes a work-related accident, KRS 342.165(1) applies.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author:  PSC Industries, Inc. v. Derrick Brown; WCB No. 201593236; Stivers (Rechter dissents with no opinion); Entered 5/26/2017
Facts: This case represents the possibility of an extremely harsh result to the Claimant in which the WCB ruled sua sponte.
Brown alleged work-related injuries to neck and low back on 2/24/2015.
The medical evidence consisted of two medical reports.
Brown submitted Dr. Jules Barefoot who  performed an IME dated 3/8/2016 where he diagnosed: 1.) status post anterior cervical discectomy and fusion with partial corpectomies and bone arthrodesis with instrumentation at C6-7, 11/24/2015; and, 2.) Lumbar spondylosis with moderately severe left and moderate right facet arthropathy at L5-S1 with evidence of a right-sided radiculopathy.
Regarding MMI, and this became critical, Barefoot thought Brown was at MMI in his March 8, 2016 report if no further treatment was available, and, as Brown continued to be symptomatic in the lumbar spine, Barefoot recommended ongoing treatment with Dr. Chou.
Barefoot assessed a 37% impairment (without separating cervical and lumbar) with significant restrictions.
PSC filed the records of Dr. Rodney Chou, who, importantly, saw him 3 months after Barefoot’s IME (6/9/2016). He recommended medications, including some change, and found Brown at MMI. He assigned 25% to the cervical only, and no assessment to the lumbar.
In her Award, the ALJ relied on the opinion of Dr. Barefoot and the records of Dr. Chou. She relied primarily on Barefoot because Dr. Chou placed no impairment rating on Brown’s lumbar spine. The ALJ found permanent total disability (PTD). PSC argued that permanent partial disability (PPD), and not PTD was appropriate.
Procedural History: PSC appeals from an Award of permanent total disability (PTD) benefits and medical benefits asserting the decision is not supported by substantial evidence. Here, the WCB vacates the award of PTD and remands for additional findings. The WCB, sua sponte, reached its decision on the issue of Dr. Barefoot’s rating, as PSC had not done so.
Issues: Did Dr. Barefoot’s impairment meet the definition of “permanent” per the AMA Guides?
Holding: No
Reasoning: On remand the ALJ must identify a permanent impairment rating in conformity with the Guides. In the alternative, should the ALJ identify in the record a date of MMI that predates 3/8/2016, the date of Barefoot’s assessment, the ALJ is permitted to rely on that MMI date in order to rehabilitate Barefoot’s rating. If the ALJ is unable to identify a permanent impairment rating in the record or an MMI date that predates the date upon which Barefoot assessed the 37%, or should the ALJ identify a permanent impairment rating assessed in accordance with the Guides and choose not to rely upon it, the ALJ may not award income benefits and the modified award should only reflect an award of medical benefits.
After Dr. Barefoot assessed his conditional impairment rating, as Brown continued to receive treatment, his rating did not meet the definition of “permanent” per the AMA Guides.
Disposition: Vacating and Remanding
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author:  LKLP CAC Inc. v Brandon Fleming; 2016-SC-000407-WC; Keller; Rendered 6/15/2017; TO BE PUBLISHED
Facts: In 2010 an ALJ awarded Fleming PPD based on a finding of a physical impairment rating of 13% and a psychological rating of 5%, for a combined 17%.
In 2014 Fleming filed a MTR and the ALJ found a physical impairment rating of 23%, and, a psychological rating of 12% for a combined 32%. The only issue on appeal was the physical complaints, and not the psychological.
During the initial litigation, Dr. David Herr assigned a 13% impairment rating for the surgically repaired back at L5-S1. The ALJ adopted this rating, and awarded benefits, without the 3 multiplier.
The Motion to reopen was filed in 2014, alleging a worsening of his condition. Pertinent to Fleming, he filed a report of Dr. Brackett of a 47% rating, 28% being attributed to the low back. Also filed was Dr. Guberman, who also assigned 28% to the low back. Dr. Guberman had assigned the 13% in the original award.
LKLP filed Dr. Vaughan who assigned 23%, and he further stated he would have assigned the same amount if he had seen Fleming following his surgery. Vaughan had not evaluated Fleming in the original proceeding. The ALJ rejected Drs. Brackett and Guberman, and adopted Dr. Vaughn’s 23%, but found that the 13% as found by the ALJ in the original award was res judicata. The ALJ rejected Dr. Vaughn’s assessment of the 23% he would have assigned following the surgery.
The ALJ found that Fleming’s permanent physical impairment rating had increased from 13% to 23%, and found that Fleming was incapable of returning to his pre-injury work activity, and awarded PPD accordingly, not finding him permanently totally disabled.
Procedural History: LKLP appeals from an ALJ award of PPD benefits, as affirmed by the WCB and COA in this MTR case.
Issues: Was the 13% rating, adopted by the ALJ in the initial claim and litigation, considered res judicata, and not subject to review in this Motion to Reopen?
Holding: Yes
Reasoning: The finding of an impairment rating is a threshold issue that forms the basis of the award, and it cannot be ignored any more than a finding of pre-existing disability can be. The ALJ on reopening cannot revisit a predecessor’s finding regarding a claimant’s impairment rating. It is a baseline. It is non-reviewable, once final. It is like a finding such as notice, causation, etc.
The Court went on to explain the difference between “impairment”, as used in KRS 342.125, and “permanent impairment rating.”
The Court went on to explain “to show a change from a permanent partial disability to a permanent total disability on reopening, a claimant need only show an increase in impairment, i.e., an additional loss of the use of body part, organ, etc. However, to show an increase in permanent partial disability on reopening, a claimant must show both an increase in impairment and in permanent impairment rating.”
THIS ABOVE IS AN IMPORTANT FINDING!
When the ALJ found that Fleming had an increased permanent impairment rating, he simultaneously found that Fleming had an increase in impairment.
Disposition: Affirmed
ALJ: Hon. Roland Case
SCT. Panel: All Sitting

Case Name, Citation, Author:  Billy Joe Bryan (By Wife Velma Darlene Bryan) v. Gates Rubber Company; WCB No. 201601402; Stivers; Entered 5/22/2017
Facts: On July 1, 2016, a claim was filed in the name of Billy Joe Bryan asserting an occupational disease claim against Gates. It alleged that on June 21, 2016 Bryan became affected by pulmonary fibrosis arising out of and in the course of his employment. Regarding “Notice” it stated “retired April 30, 1997. After diagnosed after that had occupational x-ray before retired showed (sic) problem.” It alleged exposure from removing asbestos and working in black carbon. Bryan had actually died on October 23, 2001, and had had 32 years exposure to the hazards of the occupational disease.
Gates filed a special answer asserting lack of notice, statute of limitations, lack of filing of a proper claim, and KRS 342.610. (He had previously filed a personal injury action against Gates in the Hardin Circuit Court). An amendment then listed date of injury as April 30, 1997, the last day of employment.
The ALJ entered an order dismissing stating the claim was filed more than 3 years after the last injurious exposure, and because of the action that had been filed in the Hardin Circuit Court. A “Motion to reconsider” was filed arguing KRS 342.316 (4) (a) (sic) arguing that in cases of asbestos-related disease there was a 20 year statute of limitations. That “Motion” was denied.
Procedural History: Billy Joe Bryan by his Wife seeks review of the Order dismissing his claim for occupational disease since it was barred by the applicable statute of limitations in KRS 342.316. Even though the title lists Velma as a Party, she was never added or designated a party in the proceedings before the ALJ. The WCB stated that APPARENTLY the argument on appeal is that Bryan’s claim is not barred by KRS 342.316 (4) as the claim is for an asbestos-related occupational disease. (The pleadings and brief in this matter were convoluted at best.)
Issues: 1.) Did the ALJ properly dismiss the claim for occupational disease other than asbestos-related disease since no action was filed within 3 years after  Bryan’s death or 5 years after the date of last exposure?
2.) Did the ALJ properly dismiss the claim for asbestos-related occupational disease?
3.) Was the ALJ’s reliance on KRS 342.342.610(4), regarding the filing of the circuit court action for a dismissal proper?
Holding: 1.) Yes  2.) Yes  3.) No
Reasoning: 1.) The date of last exposure was 4/30/1997. Bryan died on 10/23/2001. This was more than 3 years after death or 5 years after date of last exposure. Any claim for occupational disease other than asbestos-related disease is time barred.
2.) The Order, however, should have dismissed the claim for asbestos-related occupational disease without prejudice as the time for filing this claim had not expired. This claim is still “alive”.
The dismissal was appropriate because the action was brought in Bryan’s name 15 years after his death, and, because his wife, who signed the claim, was not named as a party. 
Also, the Form 102-D did not have a medical report filed with it based on clinical x-ray examination and a full and complete statement of all the examinations performed and the results thereof.
3.) The statute refers to an action were the employer has intentionally caused the injury or death of the employee.  The suit made no such allegations so the statute was inapplicable.
Disposition: Affirming in Part, Remanding in Part, and Vacating in Part
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author:  David Horn v. City of Covington; WCB No. 201272193; Akvey; Entered 6/5/2017
Facts: Horn filed a motion to amend his claim which was overruled. Notably, in the order overruling the motion, the ALJ also specifically scheduled a telephonic conference later in the case.
This appeal followed.
Procedural History: Horn appealed from an order overruling his motion to amend his claim against the City of Covington.
Issues: Was the denial of a motion to amend the claim a final and appealable order?
Holding: No
Reasoning: The order did not resolve all pending issues. An order is appealable only if it terminates the action itself, acts to decide all matters litigated by the parties and operates to determine all the rights of the parties so as to divest the ALJ of authority.
It was clear the litigation was not concluded as evidenced by the scheduling of a telephonic status conference.
Disposition: Opinion and Order Dismissing and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author:  Jimmy Hilton v. Apex Energy, Inc.; WCB No. 201501271; Alvey; Entered 5/26/2017
Facts: Hylton worked in coal mining for 36 years. All of his work for Apex was above ground. He had not missed work, nor sought treatment for breathing problems.
Hylton filed the report of Dr. Glen Baker who classified an x-ray report quality 1, and interpreted it as 1/1 for CWPA pulmonary function study demonstrated an FVC of 79% of predicted value, and the FEV1 of 87% of predicted value.
Hylton also submitted a CT scan interpretation by Dr. Vijay Ramakrishnan.
Dr. Bruce Broudy examined Hylton at Apex’s request. FVC was 90% and FEV1 was 92%, and an x-ray was1/1 for CWP.
Due to the inability to schedule a university evaluator, the DWC scheduled an evaluation with Dr. Westerfield, who read an x-ray as 0/1, FVC as 90%, and FEV1 as 97%. He could return to his previous position.
The ALJ dismissed the claim, relying on Dr. Westerfield, because he was independently selected, and, stating specifically that his report was not entitled to presumptive weight since it was not performed by a University Evaluator.
Procedural History: Hilton appeals the Opinion and Order dismissing his CWP claim against Apex. Hilton argues the conclusion is not supported by substantial evidence, and that reliance on the opinion of Dr. Byron Westerfield has caused a gross injustice.
Issues: Was the testimony of Dr. Westerfield substantial evidence?
Holding: Yes
Reasoning: The ALJ chose Dr. Westerfield, and fully explained his reasoning. He was free to choose whichever evidence he wanted. There were simply differing opinions. He provided a sufficient explanation, and did not give Dr. Westerfield’s opinion presumptive weight.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Roy L. Gibbons v. Lone Mountain Processing Inc’; WCB No. 201587804; Alvey; Entered 5/26/2017
Facts: This appeal and fact situation pertains to the bilateral knee issues only, as no appeal was taken by either side on the low back injuries.
Gibbons alleged cumulative trauma injuries to both knees manifesting on April 11, 2015. His job required him to work and crawl on his knees, estimating that he worked on his knees 3 hours in a 9 hour day.
Gibbons testified that he injured his back on 2 occasions, and when seeking treatment for his back, did not report any knee problems.
Gibbons testified that his knee problems began about 5 years before he ceased working, and gradually worsened. He first saw Dr. Gregory Dye in 2015, and he was the only physician who treated his knees.
When seen by other physicians for his low back problems, Gibbons never complained about any knee conditions.
Gibbons filed the report of Dr. Muffly who performed an exam and reviewed records, including scans. He also performed standing x-rays which he opined were consistent with bilateral compartment osteoarthritis. He assessed 3% for each knee, and assigned restrictions. He stated the impairments for the knees are related to cumulative trauma associated with his occupation as a coal miner.
Lone Mountain filed Dr. Primm’s report, who after an exam and review of medical records, found nothing to suggest any type of cumulative trauma injury.
The ALJ found minimal treatment for the knees and very little in the way of complaints. He noted several office visits with no reports of bilateral knee pain.
Procedural History: Gibbons appeals from the Opinion, Award and Order of the ALJ which found that he sustained acute low back injuries on 5/14/2014, and, 4/11/2015 for which she awarded TTD, PPD, and medicals, however, the ALJ dismissed his claim for alleged bilateral knee condition caused by cumulative trauma.
Issues: Was there substantial evidence to uphold the ALJ decision to dismiss the cumulative trauma claim for the knees?
Holding: Yes
Reasoning: It was the ALJ prerogative to rely upon the lack of medical treatment, as well as Dr. Primm’s opinion concerning the knees. There was no documented evidence concerning the knees from any of the treating doctors for the low back. The ALJ decision sufficiently outlined the evidence she relied upon in reaching her decision. 
Disposition: Affirmed
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author:  Brasch Construction v. Jason Bridgeman; WCB No. 201577912; Rechter; Entered 5/26/2017
Facts: On June 15, 2015, Bridgeman felt a sharp pain in his back when lifting a garbage can.
Bridgeman was seen by Dr. Peter Urda who released him to RTW without restrictions as of 6/22/2016. He did not order an MRI, although Bridgeman claimed to have continuing pain. Subsequently Bridgeman  went to Norton Hospital Emergency where an MRI revealed a large central disc protrusion at L5-S1 with severe spinal canal stenosis impinging on the right S1 nerve root, and a central disc protrusion at L4-5 with moderate spinal canal stenosis and mild neuro-foraminal narrowing.
Dr. Jeffrey Fadel performed an IME on 1/14/2016 who found MMI by 9/15/2015 and assigned 12%, all attributable to the injury.
Dr. Ellen Ballard performed an IME on 5/23/2016. Based on a review of the MRI, and the history provided she related her diagnosis to the injury and assigned 12% under the Guides. She then changed her opinion and assessed 5% to the injury if Bridgeman were asymptomatic prior to the injury. He still had a 12% but could not be certain that the entirety of the rating was related to the work incident.
The ALJ relied on Dr. Fadel’s evaluation in his findings.
Brasch argues on appeal that Cepero applies because of some prior treatment which Brasch claims Fadel was not made aware of, or review those records, relying only on the history provided by Bridgeman.
Procedural History: Brasch appeals from an Award to Bridgeman arguing the ALJ’s finding regarding causation is not supported by substantial evidence. Bridgeman cross appeals arguing the ALJ erred by allowing Brasch to admit the deposition of Dr. Ellen Ballard.
Issues: Was the history provided to Dr. Fadel so inaccurate or incomplete as to render his opinion lacking in probative value?
Holding: No
Reasoning: While Fadel did not state that he specifically reviewed prior medical records, in the history section of his report he indicates he was aware that Dr. Urda had released Bridgeman to RTW without restrictions on week after the injury. There was really no records showing prior symptoms or treatment other than an isolated one.
Dr. Ballard did not really explain her findings of why she felt there was a pre-existing component, and her report was couched in terms of “possibility”, not probability.” While Ballard had originally agreed with Dr. Fadel, and then changed her opinion, the issue of Ballard’s deposition was harmless error since the ALJ decision was affirmed anyway.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Rocky Barnett v. Reed & Damron Trucking Co., Inc.; WCB No. 200388094; Stivers; Entered 5/19/2017
Facts: In a 7/13/2006 Opinion, ALJ Cowden found Barnett sustained a work-related low back injury on 4/5/2003. He relied on Dr. Joseph Rapier who diagnosed strain, instability at L4-5, which was treated by interbody fusion. He assigned 23%.
He also relied on Dr. Phillip Tibbs who agreed with the diagnosis and surgery, and assessed 23%. Both doctors felt this was a work-related injury. The ALJ also approved all of the medications prescribed by the doctors for the chronic pain, as well as a 10% rating by Dr. Granacher for the work-related impairment due to depression. A PTD was awarded.
Reed & Damron filed a MTR contesting the prescriptions and office visits for the prescriptions following a U/R. This U/R was supported by reports of Dr. Michael Chunn and Dr. David Jenkinson who both concluded the contested treatment was not necessary and reasonable for the cure of the work injury. Their diagnosis of the injury was a low back strain. Their reports do not reflect that they even reviewed ALJ Cowden’s opinion.
In Barnett’s appeal, he did not name medical providers as parties.
Procedural History: Barnett seeks review of a MFD Opinion resolving a medical dispute in favor of Reed & Damron. The ALJ found certain medications and office visits to prescribe them not reasonable and necessary treatment of Barnett’s work injury and thus non-compensable.
Barnett alleges the doctors’ diagnoses of a resolved back strain are not in conformity with ALJ Cowden’s findings regarding the nature of the injury.
Reed & Damron assert that Barnett failed to name indispensable parties to the appeal when he failed to name all medical providers.
Issues: 1.) Should Barnett’s appeal have been dismissed for failure to name the medical providers as indispensable parties?
2.) Was ALJ Cowden’s opinion as to nature and extent of Barnett’s injury considered res judicata?
Holding: 1.) No  2.) Yes
Reasoning: 1.) This issue has been addressed recently in other cases which we reported to you. The medical providers had no pecuniary interest in the outcome. They are entitled to compensation their services, the issue is who is responsible for payment. No one questions their right to compensation.
Also, Barnett and the medical providers are similarly situated during the pendency of the action and the appeal, and Barnett is advocating the physicians’ position.
2.) ALJ Cowden determined, based on Dr. Tibbs, that Barnett sustained a lumbar disc herniation of L4-5 with mechanical instability resulting in posterior lumbar interbody fusion at that level to relieve nerve entrapment, and approved essentially the same medications for treatment that are now contested.
The reports of Dr. Chunn demonstrate a rejection of ALJ Cowden’s findings as to the nature of Barnet’s injury. Chunn thought Barnett sustained a lumbar strain and underwent an unnecessary lumbar fusion.
Dr. Jenkinson also rejected ALJ Cowden’s findings regarding the nature of Barnett’s work injury. He felt there were several years of treatment without objective abnormality. He also relied on two pre-surgery reports of Dr. Travis, which the ALJ had rejected. In addition, he referred to the injury as “alleged back strain.”
The opinions of Drs. Chunn and Jenkinson had no probative value. The ALJ and physicians are bound by ALJ Cowden’s determination as to the nature and extent of Barnett’s work injury.
The WCB went on to say that it is error, as a matter of law, for an ALJ to rule future medical care is unreasonable and unnecessary without supportive expert medical testimony.
Disposition: Vacating and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Jeffrey Daleford Adkins v. Hinkle Contracting a/k/a Summitt Materials; WCB No. 201565641; Alvey; Entered 5/26/2017
Facts: Adkins alleged an injury to his low back on 8/1/2015 when he struck a pothole while driving a truck underground. He alleged that he verbally told his supervisor at the end of the shift, but his supervisor did not recall the conversation. Adkins later stated the 8/1 date was incorrect, and that it came from the medical records of Dr. David Barnes, D.C. with whom he first treated 8/11/2015. He claims to have actually told Barnes, “two weeks prior.” He told the adjuster he couldn’t recall the date. Timecards that were filed by Hinkle showed 8/1 was a Saturday and that Adkins did not work that day.
Representatives of the employer denied ever speaking with Adkins about a work-related injury.
Procedural History: Adkins appeals from the Opinion and Order dismissing his claim for failure to give due and timely notice of the alleged injury to his employer. No petition for reconsideration was filed by either party.
Issues: Were the ALJ’s conclusions based on reliable and material evidence?
Holding: Yes
Reasoning: Adkins himself remained somewhat confused about the D/I, and therefore his allegations that the ALJ’s ruling that his testimony was inconsistent and confusing was without merit. Since no petition for reconsideration was filed a decision resolving purely factual questions cannot be reversed if substantial evidence supports the ultimate conclusion. Since no one requested additional findings regarding when the injury occurred, the decision must stand.
Disposition: Affirming
ALJ: Roland Case

Case Name, Citation, Author:  Christopher Cunningham v. Quad/Graphics, Inc.; No. 2016-CA-001485-WC; Kramer; Rendered 6/16/2017; TO BE PUBLISHED.
Facts: This published opinion concerns an injury Cunningham sustained to his right shoulder. Cunningham contends that the 8% assigned by the IME Dr. Grossfeld, and relied on by the ALJ did not qualify as substantial evidence because the evaluator utilized passive range-of-motion tests rather than active ROM tests, and that the Guides required the evaluation of the right shoulder to be based only upon active ROM tests.
The ALJ and the WCB concluded that this case is not one where the physician disregarded the Guides, but concerned a medical expert’s interpretation and application of the Guides.
Procedural History: Cunningham appealed from an award of 8% from the ALJ to the WCB, which affirmed. He then appeals to the COA from the WCB, arguing his award based on an 8% whole person impairment was inadequate and based on insufficient evidence.
Issues: Was the ALJ correct when he relied upon the physician’s impairment rating for a shoulder injury when the physician relied upon “passive” ROM testing rather than “active” testing under the Guides?
Holding: Yes
Reasoning: The Guides clearly call for “active” ROM testing measurements derived from consistency tests. The Guides acknowledge however that the effectiveness and accuracy of these kinds of tests are subject to the conscious or subconscious processes of the individual being evaluated. If Dr. Grossfeld believed in light of other medical evidence and in the exercise of her entire range of clinical skill and judgment, that Cunningham’s measurements were implausible, indicative of poor effort, and insufficient to verify that an impairment of a certain magnitude existed, then she was permitted to discount the active ROM measurements and modify his rating.
She did not disregard the Guides, but rather interpreted them and assessed Cunningham accordingly, both of which are medical questions.
Disposition: Affirmed
ALJ: Hon. Chris Davis
COA Panel: Kramer, D. Lambert, Nickell

Case Name, Citation, Author:  James D. Howes v. Apollo Oil and Roscoe Lohr; WCB 201565255; Stivers; Entered 6/9/2017
Facts: Lohr filed a claim against Apollo for injuries he sustained at work. The record showed that he had substantial legal problems due to his failure to pay child support for two children.
A settlement agreement was reached wherein Lohr was to receive $17,500.00 for a full and final settlement.
Howes filed an amended motion for attorney fee, in addition to the $3500.00 previously awarded, seeking $1870.70 for litigation costs advanced, and noted that the settlement proceeds, aside from his attorney fee, would all be paid in satisfaction of a child support lien, all to his detriment. He also asserted that the litigation costs were necessary to pursue the claim, without which the child support lien would not have been satisfied.
Howes argues contractual matters between the claimant and his attorney are not totally independent of the compensability of the employee.
Procedural History: Attorney Howes appeals from an order awarding him an attorney fee but declining to include an additional award of reimbursement of the litigation costs he expended in the amount of $1870.70.
Issues: Did the ALJ have the authority to order reimbursement to an attorney of the costs expended in representing a claimant in a workers’ compensation claim?
Holding: No.
Reasoning: There is no statutory provision permitting the ALJ to order reimbursement to an attorney of the costs expended. The only statute that authorizes recovery for costs is KRS 342.310 (1), and Howes did not seek reimbursement under this statute. No provision in KRS 342.320 has no such provisions.
KRS 342.180 supersedes any provision in an agreement or order directing reimbursement of costs. This statute directs that no claim is assignable under the WC chapter except court or administratively ordered child support. An order to pay costs would be in violation of KRS 342.180.
Lastly, the WCB pointed out that there was nothing in the record signed by Lohr, the client, permitting Howes to prosecute this appeal in an attempt to secure reimbursement of the litigation costs, which in turn would necessarily reduce the payment of Lohr’s delinquent child support obligation.
Disposition: Affirming
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author:  University of Louisville v. Kayla Davis; WCB No. 201600027; Stivers; Entered 5/19/2017
Facts: Davis alleged work-related injuries to her right upper extremity and right hip after slipping and falling on outside steps.
Davis submitted three sets of records from Dr. James Jackson in support of her claim. Jackson diagnosed RSD and set forth a treatment plan which included medications and nerve block injections. She denied any symptoms prior to her fall. She wanted to continue treating with Dr. Jackson.
A Form 110 Settlement Agreement was entered in which certain medical expenses were paid, and other, both past and future, remained in litigation. Both Drs. Rodney Chou and David Tate assessed 0% impairment ratings.
The ALJ, finding Davis to be a credible witness, and finding Dr. Jackson’s treatment reasonable, awarded past and future medicals. U of L demanded additional findings, and specifically what findings were used to award Davis. The ALJ explained sufficient findings were made and overruled U of L.
On appeal, U of L asserts the record compels a finding in its favor on the issue of past and future medical benefits.
Procedural History: U of L appeals from an Opinion and Award that awarded Davis past and future medical expenses for her work-related right upper extremity injury.
Issues: Did the ALJ make adequate findings in arriving at his conclusion that the claimant sustained a work-related injury?
Holding: No.
Reasoning: The ALJ relied upon Dr. Jackson, but nowhere in his records is a causal link made between the diagnosis of RSD, a diagnosis adopted by the ALJ, and the incident occurring on January 10, 2014. The finding that Davis was credible does not address the issue of causation.
The claim was remanded for additional findings on causation and resolution of Davis’ entitlement to past and future medicals.
Disposition: Vacating and Remanding
ALJ: Hon. John B. Coleman

Case Name, Citation, Author:  Novo-Nordisk, as Insured by XL Specialty v. Sandra Darby and Novo-Nordisk, as Insured by Zurich; WCB No. 201186275; Rechter; Entered 5/5/2017
Facts: This is a procedural case, with convoluted facts, and mistakes all around, including the ALJ, DWC and WCB.
Darby filed a claim alleging 2 injuries at Novo-Nordisk: 12/1/2010 while Novo was insured by Zurich, and 7/27/2011, when Novo was insured by XL. The Form 101 named Novo as insured by both Zurich and XL.
According to DWC records, XL received notice of the 101 filing at its Exton, Pennsylvania address. However, no appearance was filed on its behalf, and the Form 111 was not filed within 45 days. XL was also served with a motion to hold the claim in abeyance, and the subsequent order.
A subsequent Order removing the claim from abeyance was sent only to counsel for Zurich and Darby.
From that point, several, but not all, motions and orders were served on XL at the Exton address. By order, the ALJ awarded PTD benefits due to the combined effects of the 2010 and 2011 injuries. XL was found liable for a PTD award for the left elbow injury. XL was not served a copy of this Opinion, Order, and Award.
On 9/28/2015, XL moved to reopen alleging it was not provided with notice of continuing litigation, and never notified the claim was removed from abeyance. It should be noted that at some point in time, XL was removed from the ALJ’s mailing list.
Confusion surrounded the events following the filing of the motion, which was opposed by both Darby and Zurich, including Counsel for XL indicating that the ALJ’s office staff told XL’s counsel to wait on filing its brief because an order resetting proof time was forthcoming.
The motion to reopen was initially granted because XL was “not properly served the Application for Benefits, the BRC, or the Final Hearing.” Proof time was reopened, however, on reconsideration, the ALJ emphasized that XL did not deny it received the notice of the Form 101, failed to file a Form 111, and had failed to respond to discovery requests sent to counsel.
12 days after the ALJ ruled on the Petition for Reconsideration, XL filed a “position” paper, to which the ALJ did not reply. The Notice of Appeal followed, as well as a show cause order for failing to file a timely brief, to which XL replied that it had been advised by the DWC that no order or receipt had been issued, and it awaited the order.
Because the delay in filing a brief was not lengthy, XL was allowed to file the brief.
Procedural History: Novo-Nordisk, as insured by XL Specialty, appeals from an order denying its motion to reopen a July 27, 2015 award, arguing it has been denied due process by thee ALJ’s refusal.
Issues: Was XL denied its due process rights when it did not receive all of the pleadings in the case, including being removed from the ALJ’s servicing list?
Holding: No.
Reasoning: The language in the reopening statute is discretionary, not mandatory. XL was not totally excluded from any participation in this litigation. It was served with the 101, a scheduling order discovery requests, motions for abeyance, motions to compel, and orders, all at the XL address. It did not file a Form 111, nor respond to requests for discovery. The record does not support the conclusion that XL was unaware litigation was proceeding. It was served with sufficient documents indicating litigation was proceeding, and it failed to avail itself of the opportunity to participate.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author:  Meade County Board of Education, as insured by KEMI v. Teresa Prather; WCB No. 200500583; Stivers; Entered 5/12/2017
Facts: Prather sustained injuries to her knees and back for which she received an award in 2005. In 2009 Meade County filed a MFD challenging medical treatment, including prescriptions, in which ALJ Smith determined the medical treatment to be reasonable, necessary, and work-related.
Meade County filed again on March 31, 2016, with essentially the same challenges. Prather responded asserting res judicata, and further filing the lengthy report of treating physician Dr. Rinkoo Aggarwal responding to the charges in the MFD. Meade County filed an additional MFD on August 1, 2016, now claiming a medical bill for urine screening from Southwest Laboratory for a May 26, 2016date of service was not submitted until July 25, 2016, and, therefore, was untimely, and also restating its original positions.
In his 11/23/2016 Opinion and Order, the ALJ the opinion of Dr. Aggarwal was persuasive in that current treatment is reasonable and necessary for the cure and/or relief of the work injury and that res judicata applies with respect to the Opinion and Order issued by ALJ Smith in 2010.
Procedural History: Meade County appeals from an Opinion resolving a MFD that determined the medical treatment challenged by Meade County was compensable.
Issues: 1.) Was the ruling that res judicata applied proper?
2.) Did the report of Dr. Aggarwal constitute substantial evidence?
3.) Did the ALJ fail to address specifically the “Additional Medical Fee Dispute” contesting liability for the urine drug screening?
4.) Was the ALJ’s conclusion that “potential sanctions for a repeated challenge to the prescriptions at issue” valid?
Holding: 1.) No  2.) Yes  3.) Yes  4.) No
Reasoning: 1.) The conclusion was wrong, but it was harmless error as substantial evidence supported the ALJ’s decision. The ALJ clearly delineated his reliance upon Dr. Aggarwal. Res judicata has limited effect in MFD because medical benefits necessarily relate to an employee’s evolving medical condition. Further, where the Act expressly provides for the reopening of a prior decision on specified conditions, the rule of res judicata has no application when the prescribed conditions are present.
2.) Dr. Aggarwal addressed each contested medication and treatment. The ALJ was free to rely on this evidence.
3.) The finding this is compensable is VACATED. This is REMANDED. The ALJ must determine the alleged untimely submission of the billing and determine whether the mandates of the statutes and regulations were carried out. If the 45 day rule was not complied with, the ALJ must determine if the delay was “reasonable.”
4.) Since no sanctions were in fact imposed, this was harmless error. That finding was VACATED.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Pamela S. Marlowe and Elizabeth Scheidler, APRN v. Hardee’s Food Systems Inc., Crawford & Company; WCB No. 199432554; Alvey; Entered 4/21/2017
Facts: Marlowe sustained a work-related low back injury on 6/8/1994. Hardee’s filed a MTR on 3/16/2016 to challenge ongoing treatment with Oxycodone and Zolpidem.
In support, Hardee’s filed Dr. Simolins’ U/R report He noted chronic opioid therapy since 2002. He found no objective functional gains from taking either Oxycodone or Percocet. Zolpidem, or ambien, is only recommended short-term for insomnia.
On the U/R appeal, Hardee’s filed Dr. Terrance J. Wilkins’ report, who after reviewing all of the medicals, stated the clinical documentation was not sufficient to show clinically significant function improvement on the basis of the addition of opioid therapy.
Nurse Scheidler stated Marlowe had chronic herniation at L4-5with bilateral foraminal stenosis stemming from the 1994 injury. She had reduced the dosage of Ambien, and there had been no attempt to wean from the Oxycodone.
Procedural History: Marlowe and Scheidler appeal from a MFD opinion resolving a medical fee dispute in favor of Hardee’s, arguing the ALJ erred in relying upon the “objective functional benefit” test embraced by Dr. David Simolins, and that the treatment with Ambien provided “some relief” to Marlowe, and the ALJ erred in finding it non-compensable.
Issues: Did the ALJ properly consider the evidence of record and apply the correct analysis in reaching his determination?
Holding: Yes
Reasoning: The ALJ clearly explained the “functional benefit” reference used by Dr. Simolins was not dispositive of his determination, but certainly a factor he considered. He provided an adequate analysis of th evidence he considered pertinent.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Gary Fletcher v. Pilgrim Mining Co.; WCB No. 201401842; Rechter; Entered 5/5/2017
Facts: Pilgrim filed a Form 102-CWP alleging he became affected by CWP through exposure to coal dust during his employment with Pilgrim. The claim was amended to seek recovery for an occupational disease pursuant to KRS 342.730 and KRS 342.316. He supported his claim with a report of Dr. Michael Alexander who interpreted a 5/21/2013 x-ray as Category1/0.
Pilgrim submitted Dr. Bruce Broudy who read an x-ray as 0/0. Pulmonary function studies revealed a severe restrictive ventilatory defect with no evidence of obstruction and no responsiveness to bronchodilation.
Dr. Fred Rosenblum and Dr. James C. Reed evaluated at the request of the DWC. This was a restrictive process. X-rays revealed no parenchymal or pleural abnormalities consistent with pneumoconiosis.
Rosenblum testified that Fletcher had both obstructive and restrictive lung disease with coal dust exposure as the likely etiology. He assigned 45%. Fletcher had not presented x-ray evidence of CWP. This failure precluded an award under KRS 342.732.
KRS 342.316 is a general statute concerning occupational disease, while KRS 342.732 is a specific statute covering the occupational disease of CWP. Fletcher must prove either that ha has CWP to recover pursuant to KRS 342.732, or that he has some other occupational disease to recover under KRS 342.316.
Procedural History: Fletcher appeals from the Opinion and Order dismissing his claim for failure to prove the existence of CWP or any other occupational disease resulting from exposure to coal dust.
Issues: Did Fletcher prove either that he has CWP under KRS 342.732, or some other occupational disease under KRS 342.316?
Holding: No.
Reasoning: The finding that Fletcher had a negative x-ray was fatal to his claim for benefits under KRS 342.732, which requires a positive reading of at least Category 1/0 for any level of benefits.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Thornsberry v. Ford Motor Company; WCB No. 201600001; Rechter; Entered 5/5/2017
Facts: Thornsberry worked at Ford from 1992. He reported LBP in 2013, diagnosed as a lumbar strain. He continued working, and complaining of pain. An MRI revealed multilevel lumbar degenerative changes, and PT ordered.
On June 4, 2015 he felt a sharp stabbing pain, with some radiculopathy, and he was referred to Dr. Thomas Becherer. There an MRI revealed changes from L2-L5.  On 9/29/2015 and Dr. Becherer performed a lumbar laminectomy and released him to RTW on 12/11/2015. He returned to work modified duty on 1/29/2016. Dr. Becherer opined that Thornsberry did not have a congenital condition that contributed to his low back symptoms, He placed him at MMI as of 9/29/2016, and assessed a 12% under AMA, using the DRE method, and attributed 50% to a pre-existing active, which resulted in a 6% rating.
Dr. James Farrage performed an IME on 2/24/2016, and used the ROM method to assess an 18% rating, and attributed the entire rating to the injury
When asked whether he would perform a ROM rating, he indicated that he was not trained to do so.
The ALJ believed the ROM method was correct because of multiple levels. He then found a 6% preexisting active, relying on Becherer. The ALJ subtracted the 6% from the 18%, leaving 12% due to the injury. The ALJ found Thornsberry had the capacity to perform light work, and therefore did not award PTD.
Procedural History: Thornsberry appeals from an award arguing the ALJ provided inadequate analysis regarding PPD and erred in calculating the percentage of his pre-existing impairment.
Issues: Did the ALJ err in finding that Thornsberry suffered a pre-existing active condition?
Holding: Yes
Reasoning: There was no basis here to allow the ALJ to merge the impairment ratings in the manner employed here. Because Becherer’s rating were not properly calculated, the entirety of his rating is unreliable, including the 6% assessed for pre-existing. The ALJ could not rely on this or any portion of Becherer’s rating.
The award must be vacated and remanded for the ALJ to reassess the percentage to be apportioned to pre-existing active. The ALJ is entitled to believe that 50% of the condition was related to pre-existing active, however, he could not rely on the 6% rating for pre-existing.
The ALJ analysis of PTD was adequate, however, in light of the remand because of the rating, the ALJ was ordered to revisit this issue, with the understanding it could remain the same.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author:  John Ray Rice Jr. v. Best Deal Dumpsters; WCB No. 201560923; Alvey; Entered 5/19/2017
Facts: Rice filed his claim alleging low back and hip injuries when he climbed into a dumpster and twisted while compressing its contents. He completed his shift and reported the injury to the owner. He first sought medical attention about 4 weeks after the injury. The employer stated that the injury was not reported until one month after the event. The employer asserted, inter alia, untimely notice, and issues with pre-existing active, and causation/work-relatedness.
Medical records were submitted from Baptist health-Lagrange, Dr. Richard Waggener, and Dr. Rick Lyon, who diagnosed non-verifiable radiculopathy with no objective evidence to support an injury. If there was a work-related injury, Rice was not at MMI, and he would have a 10% impairment.
At the BRC, the claim was bifurcated “on the issues of whether or not the incident even occurred and notice, and any disputed medical treatment and TTD.” Because of the bifurcation, the parties were prevented from introducing evidence regarding the permanency of Rice’s condition.
The ALJ went on to find the event occurred, noted that no medical provider made a finding of a permanent work-related injury. The injury was a temporary exacerbation of a pre-existing condition, found MMI and awarded no TTD, and only limited medicals.
Procedural History: Rice appeals from the Opinion and Order that found he had only sustained a temporary injury. Rice argues the ALJ exceeded the scope of the bifurcated issues presented at the hearing, the parties had not yet argued or introduced evidence of whether Rice’s condition was temporary or permanent, and that the evidence clearly set forth he had not reached MMI, and since the ALJ had found a work-related injury, for which notice was given, and he should be awarded TTD and medical benefits.
Issues: Did the ALJ abuse his discretion by ruling on issues not before him in the order on bifurcation?
Holding: Yes
Reasoning: The parties agreed to bifurcate the claim on the threshold issues of occurrence of a work injury, notice, medical treatment and entitlement to TTD benefits; not whether the injury was temporary or permanent in nature, or the extent of disability. Once the ALJ found the work injury, and provided notice, he should have allowed additional time to introduce evidence regarding MMI, and whether additional medical was needed. After additional time to present evidence, an additional BRC and hearing should be scheduled.
Disposition: Affirming in part, Vacating in Part, and Remanding.
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  AK Steel Corp f/k/a Armco Steel Corp v. Donald Cottle; WCB No. 199300538; Rechter; Entered 5/12/2017
Facts: Cottle injured his low back in 1992. A settlement identified his injury as “low back”. He underwent a discectomy in 1993.
Cottle treated with Dr. Matthew Werthammer who ordered injections and PT, and, eventually, lumbar decompression and “probable” fusion surgery at L3-4 and possible L4-5.
Dr. Russell Travis conducted a U/R, and recommended the request be denied concluding any surgery “would be for age-related degenerative changes and not work related”.
On March 2, 2016, the U/R report was issued.
Cottle filed a MTR and MFD on April 25, 2016. Ultimately, the ALJ determined AK had failed to file a MFD in a timely manner following the U/R decision, and ruled in favor of Cottle.
Procedural History: AK Steel appeals from a MFD in which the ALJ found AK Steel responsible for proposed surgery to treat Cottle’s lumbar spine injury.
Issues: Is there a regulation that relieves the employer of the obligation to initiate a MFD when the U/R denies treatment based on work-relatedness?
Holding: No
Reasoning: A final U/R review denying treatment on the basis of work-relatedness is not the equivalent of a statement for services rendered that “clearly indicates that the services were not performed for a work-related condition.”
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  United Parcel Service Inc. v. Tracy Trenaman; WCB No. 200684714; Alvey; Entered 4/28/2017
Facts: Trenaman sustained an injury to the neck, with an anterior fusion, settled based on a 27% impairment rating. Medicals were not waived.
UPS filed a MFD challenging the compensability of a compound cream prescribed by Dr. Rodney Chou. In support thereof, it filed the U/R of Dr. Terry Troutt who concluded the compound cream was neither reasonable nor medically necessary pursuant to the Official Disability Guidelines (ODG) Pain chapter. He explained topical analgesics are largely experimental and primarily recommended for neuropathic pain when trials of antidepressants and anticonvulsants have failed. Based on reports of a Dr. Glenn Babus and Dr. Mardy-Davis, UPS also challenged the Licodaine patches.
Dr. Rodney Chou recommended the use of the compound cream as well as the Licodaine patches, as did Autmn Allgeier, APRN, in Dr. Chou’s office.
In approving the use of the compound cream, as well as the Licodaine, the ALJ summarized the letters of Dr. Chou, and Nurse Allgeier, and the opinion of Dr. Troutt, however, did not mention the reports of Drs. Mardy-Davis or Babus.
Procedural History: UPS appeals from a Medical Fee Opinion and Order resolving a MFD in favor of Trenaman.
Issues: Were the findings of fact based on a correct understanding of the evidence submitted during the litigation of the claim
Holding: No
Reasoning: There was no indication in the treatment notes or record that Trenaman had ever used the recommended compound cream that Dr. Chou had indicated was effective in controlling the pain. Further, there was no indication that PT had ever been requested.
Further, it was unclear whether the ALJ considered the opinions of Drs. Mardy-Davis or Babus regarding the compensability of the Licodaine patches.
All parties are entitled to findings of fact based upon a correct understanding of the evidence submitted.
Disposition: Vacating and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  James Underwood v. Pella Windows Depe PLLC; No. 2016-CA-001424-WC; Combs; Rendered 3/31/2017; Not to Be Published
Facts: This is simply an appeal and rehash of a case we shared with you in a fall 2016 newsletter when the WCB issued its opinion. The facts noted by the COA are extremely limited in its opinion, but what is significant is its language in upholding the WCB and reiterating the law as it applies to this case.
Factually, the employee sustained two injuries. After the first he returned to work full time, with full salary, and at his old job, up until the date of his second injury. The ALJ assigned the three multiplier, but in light of his work, the WCB remanded for additional findings on the three issue.
The ALJ had also started the PTD award the date of his second injury, despite the fact that Underwood continued to work full time another 4 months. The WCB said he could not be considered PTD and yet work full time, and reversed the start date until the date Underwood stopped working.
Procedural History: Underwood appeals contending the WCB erred in remanding for additional findings regarding application of the three-multiplier and in reversing the start date of the PTD award.
Issues: 1.) Was the WCB correct in reversing the start date of the PTD?
2.) Was it error for the WCB to remand for additional finding on the issue of the three multiplier?
Holding: 1.) Yes   2.) No
Reasoning: 1.) As a matter of law, a worker cannot be considered totally permanently disabled during a period he continues to work at his regular job, with no accommodations, at full wages.
2.) The COA found no error that the WCB had “overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.”
Disposition: Affirmed
Court of Appeals Panel: Combs, Maze, and Stumbo
ALJ: Hon. Gran Roark

Case Name, Citation, Author:  Regina Teno v. Ford Motor Company; No. 2015-CA-001903-WC; Lambert, J.; Rendered 4/28/2017; TO BE PUBLISHED
Facts: Teno began working for Ford in 1993, however, her real problems began with a transfer to the paint department. Problems began immediately, and the intermittent pain in the right arm and elbow, and the right collarbone and right bicep, became constant, and in February, 2013 she sought treatment.
Numerous physicians prescribed conservative treatment, and Teno initially reported this as a “private insurance” matter.
There was previous treatment for RUE conditions. One study revealed moderately severe right carpal tunnel syndrome. Eventually, Dr. Amit Gupta performed right carpal tunnel and right cubital tunnel releases in August, 2013, which were not fruitful.
Dr. Danial Clair, a vascular surgeon, evaluated Teno at the Cleveland Clinic on 1/16/2014. He opined that Teno’s symptoms were consistent with thoracic outlet syndrome and recommended surgery, which was scheduled, but Teno elected not to proceed.
Dr. Kamlesh Dave, a former treater, then diagnosed thoracic outlet syndrome.
An IME with Dr. Valerie Waters diagnosed thoracic outlet, but no opinion as to causation.
Dr. Warren Bilkey’s IME resulted in thoracic outlet, finding it work-related, and assigned 11%, 3% of which was thoracic outlet.
Ford’s IME, Dr. Thomas Loeb disagreed with the thoracic outlet, there was pre-existing non work-related conditions, and there was no permanent impairment, and issued a 0%.
Persuaded by Dr. Loeb, the ALJ dismissed the claim.
The WCB concluded Dr. Loeb’s opinion constituted substantial evidence.
Procedural History: Teno seeks review of the WCB’s decision affirming the ALJ’s dismissal of her workers’ compensation claim. The ALJ found that Teno failed to prove a work-related injury. Teno claims the ALJ and WCB overlooked the opinions of numerous medical professionals (4) who diagnosed Teno with Thoracic Outlet Syndrome and instead erroneously relied solely on the opinion of one defense IME doctor.
Issues: Did the ALJ flagrantly err in her discounted assessment of Dr. Bilkey’s evaluation?
Holding: Yes
Reasoning: Dr. Bilkey did in fact explain how Teno’s work activities caused her to experience pain.  He also performed a valid review and explanation of previous medical conditions and treatment. The COA could not hold that the evidence compelled a finding since it was not a fact-finder, so it remanded the matter to permit the ALJ to properly re-examine Dr. Bilkey’s report along with the rest of the medical proof and make an appropriate decision as to whether Teno met her burden of proof.
Disposition: Reversed and Remanded
ALJ: Hon. Jeanie Owen Miller
Court of Appeals Panel:  Acree, J. Lambert, and Thompson

Case Name, Citation, Author:  Vellancis C. Robinson v. Ford Motor Co/Truck Plant; WCB No. 201600388; Stivers; Entered 5/12/2017
Facts: Robinson started working for Ford in February, 2014. Her Form 101 alleged that she sustained her repetitive injuries “on or about March 1, 2014.”
Robinson treated with Dr. Tuna Ozyurekoglu at K & K. A record dated 3/21/2014 reported symptoms with an onset of two months prior.
A June 15, 2015 note stated her problems began “march (sic) 2014”.
A June 18, 2015 medical questionnaire, the doctor checked “No” to the question, “Is the condition due to the employee’s occupation?”
While acknowledging different opinions of Drs. Bilkey and Nicoson, the ALJ relied on Dr. Ozyurekoglu and his office notes to dismiss the claim, citing the doctor’s greater understanding of Robinson’s condition who had treated her consistently and continuously. Nicoson and Bilkey were not summarized by the WCB.
Procedural History: Robinson appeals from the Opinion and Order dismissing her claim for alleged work-related injuries to her right upper extremity due to repetitive job duties using a power drill while in the employ of Ford Motor Company.
Issues: Did Robinson fail in meeting his burden of proof?
Holding: Yes
Reasoning: The ALJ set forth a comprehensive analysis of the issue of “injury” as defined by the Act, and the evidence he relied on. His findings referenced the office notes of Dr. Tuna where Robinson specifically gave an onset date of “2 months”, which clearly pre-dated Robinson’s employment. Further Dr. Tuna reported that Robinson had fallen “last year”, and was treated for a wrist sprain for 3 months. There was no specific mention of Robinson’s job duties or that she became symptomatic with respect to her bilateral hands and wrist as performing specific work activities. Significantly, she reported in June that her symptoms began in March, with only a reference of “use power drills”. Three days later in responding to a questionnaire, Dr. Tuna specifically indicated the condition was not related to her occupation. The ALJ decision was supported by substantial evidence.
Disposition: Affirmed
ALJ: Hon. Robert L. Swisher

Case Name, Citation, Author:  Scott Matthews v. Apogee Trucking LLC; WCB No. 201586146; Stivers; Entered 4/7/2017.
Facts: Matthews alleged two injuries, the second occurring on April 2, 2015 when he fell out of a truck injuring his low back. In his position Matthews drove a truck, picking up donations for 2 charities. He was paid $18.46 per hour.
After being off work about one month, Matthews returned to work in May, 2015 to a light-duty job signing people up at the door for “VIP” cards. He received the same hourly rate, but his hours were much less. He returned to his regular job in August, 2015. There was no regular person assigned to this “greeters” task, and it did not require any extensive training.
The number of hours worked was less than 40 per week, but there was no testimony offered concerning his capability to perform the job, nor concerning the actual dates Matthews missed work, and why he was not at work on those days.
IME reports of Dr. Michael Best and Dr. Warren Bilkey did not address the issue of TTD during the period of time from May11, 2015 thru August 28, 2015.
Only post-hearing did Matthews submit wage records post injury weekly wages.
The ALJ did not award TTD during the period of light work, finding it was work customarily done, not made-up, and not demeaning. He did not believe this situation involved an extraordinary circumstance justifying an award of TTD while the claimants worked as the Trane case discusses.
Procedural History: Matthews appeals from an award of PPD, medical benefits, and TTD already paid, asserting the ALJ utilized the wrong standard in refusing to award TTD benefits from May 11, 2015 through August 26, 2015 when he performed light-duty work.
Issues: Was Matthews’ entitlement to TTD benefits, that is, did his situation constitute extraordinary circumstances as discussed in Trane, correctly determined as explained in the Trane case?
Holding: No
Reasoning: The testimony as to why Matthews worked so few hours each week was at best scant. He did not testify that all the days he missed from work was due to the effects of the work injury. 
The ALJ found this work to be meaningful at the same hourly rate. It was not made up or demeaning work. He explained his reasoning under the Trane case. Because Matthews filed the post injury wage records one month after the injury, failed to verify the accuracy of his exhibit, and failed to testify that he missed work on all the occasions demonstrated
in the exhibit due to his work injury, the ALJ was not required to rely on the exhibit for a showing of extraordinary circumstances supporting an award for additional TTD benefits.  The WCB noted: “Importantly, the Supreme Court did not equate the failure to earn pre-injury AWW with entitlement to additional TTD benefits.”
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Kenergy Electric v. Mark Anthony Leonard; WCB No. 201501741; Alvey; Entered 4/21/2017
Facts: Leonard, age 58, alleged cumulative trauma injuries to his shoulders due to repetitive use, using 1/30/2015 as his date of injury, which was his last day he worked before experiencing a heart attack which left him unable to work.
Leonard was a master electrician and an underground construction foreman. He had sustained a prior injury to each of his shoulders which required surgery, but returned to work after each without restrictions.
Leonard testified that left was worse than right, and he attributed his shoulder conditions to his work activities at Kenergy where he had begun in 1975. Prior to the heart attack he was experiencing difficulty at work performing his tasks, and testified he could not have continued in his job on a sustained basis.
Leonard submitted the report of Dr. Stephen Autry, who reviewed the records and performed an examination. Autry diagnosed bilateral rotator cuff tendonitis and post-traumatic osteoarthritis changes of the glenohumeral surfaces and AC joints aggravated by Leonard’s work. He assessed 9% for the right shoulder and 11% for the left, for a combined 20%, all related to work. He was not to return to the previous work, and there were substantial restrictions. Autry testified he was are of previous treatment and surgeries to the left knee and both shoulders.
Leonard’s family physician from 1985 thru 2015 was Dr. Gary Wahl, who treated him for a variety of maladies. His chiropractor, Dr. Tinius, primarily treated for the back, but also noted Leonard’s complaints of pain in both shoulders. His treatment for his cardiac condition was rendered by Dr. Gayle Reader. Several other physicians performed treatment over the years, primarily for limited periods.
Kenergy filed Dr. Frank Bonnarens who opined no work-related injuries and this was not a wear and tear injury. This was all age-related.
The ALJ awarded the 20%, including the 3 multiplier, basing his opinion on Dr. Autry whom he found credible.
Procedural History: Kenergy appeals from an award finding Leonard sustained cumulative trauma injuries to his shoulders, and awarded PPD benefits enhanced by three, and medical benefits.
Kenergy argues there was no credible evidence, and the ALJ’s decision was arbitrary or capricious, and was an abuse or unwarranted exercise of discretion.
Issues: Was the evidence relied upon by the ALJ credible?  
Holding: Yes
Reasoning: Dr. Autry clearly stated in his report and testimony that the shoulder conditions are due to cumulative trauma from lifting, jerking, and sustained overhead work. He provided a detailed explanation of his decision and the evidence he reviewed. 
Kenergy’s arguments concerning Dr. Autry went to the weight of the evidence and do not serve to render his opinions unsubstantial. The ALJ appropriately exercised his discretion.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Kirkland’s v. Kelley Darst; WCB No. 201501198; Alvey; Entered 4/28/2017.
Facts: Darst alleged a right shoulder injury at work, which Kirkland’s accepted as compensable, but denied liability for a subsequent accident which occurred at home.  
Darst’s work-related injury resulted in surgery by Dr. Kitty George, who advised her to sleep in an upright position to avoid inadvertently laying on her right shoulder. While sleeping in a recliner she stood and pushed her blankets off to go to the restroom, mistakenly thought she had cleared the blankets, but got her feet tangled in them, causing her to trip and fall. She fell forward and instinctively splayed her right palm out to catch herself. She reported the fall to Dr. George, and after an MRI, performed a second surgery on 8/8/2015 to repair a tear, placing 3 anchors in the shoulder. The carrier denied coverage for the second MRI and surgery.
After a RTW, the employer eventually could not accommodate her restrictions, and terminated her.
Dr. George indicated the new interstitial tear of the rotator cuff “was related to her initial injury in view of the fact that without having her initial injury she would not have been in a recliner and thus would not have a problem.” She repeated this opinion several times. She agreed with Dr. Mark Barrett’s rating assessment.
Dr. Barrett opined the fall injury “was the result of a combination of several factors, but most notably begin forced to sleep in a chair with her arm immobilized while also on pain medication which obviously would affect coordination and balance.” He assessed a 7% rating, attributing 1% to a 2005 injury, and 6% to her current condition.
Kirkland’s filed Dr. Frank Bonnarens. He found no relationship between the work injury and the subsequent fall at home, noting Darst could have tripped and fallen over anything.
The ALJ found the fall traceable to the work injury, and adopted the 6% of Drs. George and Barrett, and found the 3 multiplier applicable.
Procedural History: Kirkland appeals from an award finding a 2/5/2015 accident at home traceable to the original 11/20/2014 work injury. The award was for TTD, PPD, and medical benefits.
Issues: Was the Claimant’s subsequent fall at home work-related?
Holding: Yes
Reasoning: Consistent with the doctrine of proximate cause, our courts have long recognized the general rule that workers’ compensation benefits must be allowed for all the injurious consequences flowing from a work-related injury.  For purposes of our “Act”, “injury” has been held to include all direct and natural consequences of the original injury that are not attributable to an independent, intervening cause.
The opinions of Drs. George and Barrett, as well as Darst’s testimony, constitute substantial evidence supporting the ALJ’s determination the subsequent fall and resulting surgery are work-related.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: Ford Motor Company, LAP v. John J. Fuertes; WCB No. 200364300; Stivers; Entered 4/14/2017
Facts: This case has been in litigation literally for years going to the Supreme Court of Kentucky on an issue that peripherally affects the WCB decision here. Cutting through several pages reciting the long and sordid history herein, the issue before the WCB was really very simple.
After the last appeal, the ALJ entered an order on August 8, 2016. Neither party filed a petition for reconsideration, nor did either party appeal.
On November 9, 2016 Fuertes filed a “Motion to Clarify Ruling”, the issue being interest due on back due benefits.  Ford argued that it was nothing more than a petition for reconsideration with another name, and thus untimely filed. Its reference was to a “newly coined motion.”
After the ALJ’s ruling, Ford appealed.
Procedural History: Ford appeals from the order that Fuertes is entitle to interest at the rate of 12% per annum from the date his PPD benefits were enhanced by the two multiplier.
Issues: Did the ALJ have authority to enter the order dated December 22, 2016 following Fuertes motion?
Holding: No
Reasoning: Upon entry of the 8/8/2016 Order, neither party filed a petition for reconsideration or a timely motion to appeal. Thus the ALJ’s order became final and no longer appealable 30 days after its rendition. At that time the ALJ became divested of his authority.
Disposition: Vacating
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Manda Coleman v. Ford Motor Company/LAP; WCB No. 201600225; Rechter; Entered 4/7/17
Facts: Coleman alleged an injury to her low back, the symptoms which did not begin until after work and at home. She reported the injury when she returned to work. She saw Dr. Venu Vemuri who eventually performed surgery.
Coleman had intermittent back pain since the 1990s. Her bilateral back pain began around 10/3/2015, but she could not recall a specific event. An MRI revealed a disc herniation at L5-S1 which appeared slightly increased from a previous MRI.
When Coleman applied for STD benefits, Dr. Vemuri opined the disability was not due to his current occupation. And not the result of an injury.
Dr. Jules barefoot performed an IME diagnosing status post left-sided L5-S1 discectomy with ongoing evidence of a persistent L5 neuropathy. He assigned 13% and found the work injury activity activated the condition into its current symptomatic disabling reality.
Ford submitted Dr. Martin Schiller who concluded Coleman’s back condition was unrelated to a work injury.
Coleman feels as though the ALJ misinterpreted the medical evidence, and the lack of medical records documenting or suggesting any other causative diagnosis.
Procedural History: Coleman appeals from the Opinion and Order concluding that she failed to prove she sustained a work-related low back injury while working at Ford.
Issues: Did Coleman meet her burden of proving a permanent harmful change to the human organism caused by her work?
Holding: No
Reasoning: A 2014 MRI established Coleman had a disc herniation at L5-S1 prior to the alleged work injury. While her herniation was larger in October, 2015, the evidence does not compel a finding that Coleman’s work caused the change in the herniated disc.
The opinions of Drs. Schiller and Sherrard constituted the requisite substantial evidence.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  Roger Boling v. Owensboro Municipal Utilities; No. 2016-000086-WC; Stumbo
Procedural History: Boling appealed from a WCB decision affirming the ALJ’s decision determining that Boling sustained a temporary exacerbation of a 2007 work injury rather than a new and distinct injury entitling Boling to PPD benefits. 
Facts: In 2007 Boling sustained a work injury to low back which required surgery at L4-5. His WC settlement was for 13%, with benefits.
On December 26, 2013 Boling reinjured his back at work. His condition worsened in April, 2014, and eventually Dr. Neil Troffkin, who had treated Boling for the original injury, performed surgery to repair a herniated nucleus pulposus right at L4-5.
Dr. Troffkin believed that Boling’s current condition arose from the 2013 event and was not related to the 2007 event and surgery because his pain had resolved 6 years before this injury.
Dr. Gayle Rhodes, who had initially seen Boling concluded that Boling’s current symptoms were a temporary exacerbation of the 2007 injury.
Dr. Thomas Loeb did an IME for the employer.  He believed that the reoccurrence of the symptoms in April, 2014 was part of the natural occurrence of the degenerative condition at the L4-L5 disc space, and did not believe that a new injury had occurred.
The WCB held that the ALJ properly exercised his discretion as fact-finder in concluding that Dr. Loeb’s opinion was more persuasive.
Issues: Did the evidence compel a finding that would have required the WCB to reverse to the ALJ?
Holding: No
Reasoning: The ALJ has the sole authority to determine the weight, credibility substance, and inference to be drawn from the evidence. The evidence did not compel a different result, and the WCB properly affirmed the ALJ.
Disposition: Affirming
Court of Appeals Panel: Acree, Stumbo, and Taylor
ALJ: Hon. Jonathan R. Weatherby

Case Name, Citation, Author:  Armstrong Coal Company, Inc. v. Nathan Attebury; 2016-SC-000368; Memorandum Opinion; Rendered 4/27/2017/ Not To Be Published.
Facts: Shortly after starting work for Armstrong, Attebury began to experience headaches, dizziness, short-term memory loss, and confusion.
Attebury saw Dr. Michael Mayron, a neurologist, who noted neuropathy in left arm and leg, tremors in both hands, and severe memory impairment. He diagnosed toxic encephalopathy which he attributed to Attebury’s exposure to the chemical toluene, a component of the Krylon spray paint he used at work. Based on memory loss and inability to perform multi-step tasks, Dr. Mayron assigned him a 49% impairment rating. He relied on an article from the Annals of Neurology from June 1988 to support his conclusions.
Armstrong filed the report of Dr. Dennis O’Keefe, a neurologist, who stated 2 chemicals in Krylon paint could cause neurological problems, and that symptoms associated with these exposures generally resolve once exposure stops. He associated Attebury’s problems to “claustrophobia associated with” working in an underground mine.
The ALJ relied upon Dr. Mayron, and accepted his findings. Armstong argues that the ALJ the WCB, and the COA each performed a Daubert analysis, but each analysis focused on Dr. Mayron’s credentials rather than his methodologies, which Armstrong considered flawed.
Procedural History: An ALJ found Attebury developed toxic encephalopathy and was totally disabled as a result of exposure to toluene. The WCB affirmed, as did a divided panel of the Court of Appeals.
Issues: Was there substantial evidence to support this finding of permanent total disability as a result of a chemical exposure (toluene)? Were his findings concerning Dr. Mayron, applying Daubert, sufficient?
Holding: Yes
Reasoning: This case reaffirms that Daubert applies to workers’ compensation proceedings and is worth a full reading.
Dr. Mayron relied on several other articles to support his conclusions, not just the article from the Annals of Neurology, which Armstrong attacked. His opinion was supported by sufficient documentation.
Dr. Mayron did in fact have a complete understanding of the amount of toluene to which Attebury was exposed and the impact of that exposure.
Armstrong further failed to present evidence which it claimed showed that Attebury had less exposure than what was claimed, or that less exposure to the permissible limit would not cause the toxic encephalopathy.
Even if the exposure was below OSHA permissible limits, there is no law that frees an employer from workers’ compensation liability because the employer complied with OSHA regulations.
Disposition: Affirming
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  James Bruce v. Grace Discount Foods; WCB No. 201599854; Stivers; Entered 4/28/2017.
Facts: Bruce alleged a back injury as a result of a fall. He was eventually treated by orthopedic surgeon Dr. Barret Lessenberry who treated him conservatively, including PT and injections, of which the carrier only approved one. Further, it only approved 6 PT sessions, and when Bruce saw a chiropractor, the carrier only paid for 12 sessions, leaving Bruce to pay for the remaining 4.
In a confusing report, Lessenberry assigned 8%, noting that half was preexisting.
Grace introduced Dr. Richard Sheridan who indicated no restrictions, and assigned 0%.
The ALJ relied on the report of Sheridan. Bruce claims that Sheridan did not apply the language of the Guides, but only “feigns to do so.”
Procedural History: Bruce appeals from an Order dismissing his claim for income and medical benefits for an alleged work-related back injury. Bruce asserts the ALJ’s reliance upon Dr. Sheridan’s rating is not in conformity with the AMA Guides, and further that he is entitled to reimbursement for medical expenses.
Issues: 1.) Did the Plaintiff properly preserve the issue concerning Dr. Sheridan’s use of the AMA Guides?
2.) When the parties stipulated an injury and notice, as well as TTD paid, and the Plaintiff was still complaining of pain, did the ALJ properly dismiss the claim in total?
Holding: 1.) No
2.) No
Reasoning: 1.) Bruce did not object to Dr. Sheridan’s report or identify Dr. Sheridan’s impairment rating is not in compliance with the AMA Guides as a contested issue. He therefore waived his right to raise as an issue before the ALJ and on appeal that the rating was not in conformity with the Guides. Further, the WCB found that Sheridan’s ratings were in factin accordance with AMA Guides.
2.) The parties entered into stipulations, and specifically stated TTD was not an issue. Because of this, and because the parties stipulated an injury, and Dr. Sheridan found an “injury”, the claim should not have been dismissed. Further, the parties had listed medical bills as an issue, and the ALJ failed to rule on it.
The claim was remanded for an appropriate order finding an injury, an award of TTD benefits, as paid, and a determination as to which medical benefits Bruce is entitled.
Disposition: Affirmed in Part, Reversed in Part, and Remanded
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Derby City Sign & Electric, Inc. v. Robin D. Wilson; No. 2015-CA-000477-WC; Acree; Not To Be Published; Rendered 4/28/2017
Facts: Wilson’s claim is based on an injury occurring in November, 2011 when he claims to have stepped off a ladder and turned his foot. He was treated in August, 2011 by Dr. William Brown for the same foot, diagnosing left foot pain related to plantar fasciitis and heal pain syndrome.
When seen on 11/17 he denied any history of trauma. An MRI was ordered. When he returned for the results, he reported to the physicians that this was work related. Surgery was performed on 3/22/2012, followed by PT. Wilson and his private insurance paid the medicals.
The owner of Derby City testified that Wilson had mentioned multiple times prior to November, 2011 that he had foot problems.
Dr. Hubbard, who performed the surgery, stated that he considered Wilson’s condition to be the natural progression of the symptoms for which he sought treatment in August, 2011, noting that he had made no mention of an injury. Hubbard testified that the type of injury that Wilson had “could have” caused the problems that led to the surgery.
Wilson presented an IME from Dr. James Farrage who simply stated that Wilson’s “clinical impression and historical account are consistent with the proposed mechanism of injury.”
Derby City filed Dr. Keith Myrick who opined that Wilson’s torn tendons were unrelated to the 11/14/2011 work injury based on the 11/17/2011 treatment note. Dr. Thomas Loeb found the pre-existing nature of the injury critical to his medical conclusion.
Procedural History: Derby City appeals from an opinion of the WCB affirming an ALJ award of PPD, TTD, and medicals.
Issues: Was the ALJ finding that Wilson’s foot condition was caused by a work incident with no pre-existing impairment supported by substantial evidence?
Holding: No
Reasoning: The board is not justified in disregarding the medical evidence where the causal relationship is not apparent to the layman. Here the causal relationship was not, since none of the half dozen medical practitioners involved could unequivocally identify cause. Thus it was improper for the ALJ and the WCB to decide the claim without relying on the testimony of the medical experts, and, instead, relying only on (1) the believability of Wilson’s testimony regarding his changing symptoms, and (2) notes Wilson asked Dr. Hubbard to add to his medical record, as determinative of causation.
Disposition: Reversing
ALJ: Hon. Jane Rice Williams
Court of Appeals Panel: Acree, J. Lambert and Taylor

Case Name, Citation, Author:  Jackson Purchase Medical Center v. Lara Henley; WCB No. 201456680; Rechter; Entered 4/14/2017
Facts: Henley sought benefits for an injury that allegedly occurred when the side rail of a hospital bed came loose and struck her on top of the head.  She then treated with Dr. Christopher King, Dr. Clint Hill, Dr. Tanya Woods, Dr. David Rouben and Dr. Louis Kastan.
Dr. Rouben also assigned an 8% rating and recommended further treatment to explore the extent of neurologic, cervical disc and ligamentous post-traumatic disease including the possibility of surgery, as well as facet joint injections.
Henley submitted Dr. Jeffrey Frank who diagnosed intractable migraines with aura and post-concussion syndrome with cerviogenic headaches.
Dr. Henry Tutt conducted an IME for the employer who concluded Henley’s subjective complaints do not comport with the objective findings. She could RTW full duty.
Dr. David Shraberg conducted an IME and diagnosed cervical sprain with possible mild concussion which had fully recovered by the time of the examination. There was no evidence of closed head injury. She could RTW, and assigned no rating.
The ALJ calculated an award based on Dr. Rouben’s 8% enhanced by the three multiplier, and Henley was entitled to recover for, “such medical expenses including but not limited to provider’s fees, hospital (sic) required for the care and relief from the effects of the work-related injuries.”
Procedural History: JPMC appeals from an award TTD, PPD, and medical benefits for a work-related injury, arguing that the ALJ improperly failed to enter findings as to whether Henley is entitled to future medical benefits.
Issues: Was the decision of the ALJ concerning medical benefits specific enough to identify what medical conditions were work related and what injuries and conditions the employer was responsible for?
Holding: No
Reasoning: Dr. Rouben’s rating was based solely on the cervical, and it was unclear whether the ALJ also believed Henley suffered a compensable head injury, or if the employer would only remain responsible future medical benefits for the cervical spine.
The ALJ was directed to identify exactly which body parts were affected by Henley’s work accident, and which of these injuries resulted in permanent impairment and disability. Also, he was to clarify which injuries are included in Henley’s award of future medical benefits. If the ALJ determines Henley suffered a work-related head injury entitling her to future medical benefit, the extent of JPMC’s liability must be clearly delineated.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Roland Case
Def. Atty.: Robert Ferreri and Lance Yeager

Case Name, Citation, Author:  Sunz Insurance Company v. Henry Decker, et al; No. 2016-CA-001517-WC; Combs; Rendered 5/5/2017; Not To Be Published
Facts: This is a case that we reported to you in the fall following the WCB decision. Without getting into too many details of the confusing fact pattern, Sunz was ordered by the ALJ to file a Form 111 within 45 days of the ALJ’s June 27, 2011 order. This means it was due on August 11, 2011. On August 29, 2011 Counsel for Sunz filed an entry of appearance and a Form 111 denying the claim. No motion for leave to file a late Form 111 was filed. A motion for a continuance and for extension of time was also filed, reflecting that its counsel was “newly hired, having been contacted by Sunz… for representation on August 23, 2011”.
In a prior WCB remand, the ALJ was instructed to determine if “good cause” existed for the filing of a late Form 111. He determined it did not. On subsequent appeal to the WCB, the WCB determined that the ALJ made determinations as required by the WCB, and did not disturb his findings.
Procedural History: Sunz appeals from an Opinion of the WCB affirming the ALJ’s determination on remand that Sunz failed to show good cause for untimely filing a Notice of Claim Denial (Form 111)
Issues: 1.) Did good cause exist to allow the late filing of the Notice of Claim Denial?
2.) Are employee/employer relationship and coverage under the Act “non-waivable defenses”?
3.) Was Sunz denied procedural due process by not being permitted to present additional proof on remand pertaining to the issue of good cause?
Holding: 1.) No
2.) No
3.) No
Reasoning: 1.) The late filing was well beyond the due date, and was done so without the filing of any motion to allow a late filing. Courts have previously held that inattentiveness or lack of diligence by the carrier or defense counsel is not “good cause” to excuse its delay in filing the Form 111.
2.) Courts have already held that these issues are waivable when a Form 111 has been filed late.
3.) An ALJ has broad discretion to control the taking and presentation of proof in a workers’ compensation proceeding.
Disposition: Affirmed
ALJ: Hon. Otto Daniel Wolff
Court of Appeals Panel: Clayton, Combs, and Taylor

Case Name, Citation, Author:  Transervice Logistics, Inc. v. John Maddox’ WCB No. 201301851; Alvey; Entered 4/13/2017
Facts: Maddox filed his claim alleging numerous injuries from his MVA. Transervice filed a Form 111 denying injuries to the neck, thoracic spine, low back, left shoulder, and head, as well as seizures, insomnia or depression.
In support of his claim, Maddox filed Dr. Warren Bilkey, who was both a treater and evaluator, and who initially assigned a 35% rating, primarily to cognitive loss, and inclusive of assessments of 3% for headaches and 5% for thoracic sprain. In a supplemental report, Bilkey stated Maddox had a traumatic brain injury with cognitive impairment, multiple upper rib fractures, residual left shoulder pain, upper and mid back pain, headaches and seizures. He disagreed with Dr. Granacher, and assessed a 40% psychiatric impairment.
Maddox also filed Dr. Michael Cecil who performed a neuropsychological evaluation and opined that Maddox had severe impairment of functional brain ability due to a traumatic brain injury, noting his intellectual functioning was impaired. He assessed 35% due to the severe traumatic brain injury.
Records of about 10 treating physicians were also filed, each supplementing various treatments, but no others assigning ratings.
Transervice filed the records review of Dr. Troutt who assessed a 0% rating.
Transervice filed Dr. Robert Granacher who diagnosed Maddox with mild cognitive impairment due to treatment with oxycodone, flexeril, and valium, not to traumatic brain injury. His functions were normal except for the medication regime. He assessed 0%.
Based on Bilkey and Cecil’s ratings, the ALJ awarded 35%, enhanced by the three multiplier, and reduced because of Maddox’s failure to wear a seat belt.
The problem was that he did not address what specific injuries Maddox sustained.
Procedural History: Transervice appeals from an award of TTD, PPD benefits enhanced by multipliers, and medical benefits for injuries sustained in a 2/24/2011 work-related MVA.
Transervice argues the AJJ failed to render a decision on the issues of compensability of injuries to Maddox’s neck, low back, and left shoulder. It also argued that the ALJ failed to address the issue of pain management for these conditions.
The WCB vacated on these two issues.
Issues: Was it necessary for the ALJ to address specifically what injuries Maddox sustained, and the treatment for those conditions?
Holding: Yes
Reasoning: The ALJ failed to set forth a finding of what injurie Maddox sustained due to the MVA. He relied upon the rating assessed by Bilkey, but he only addressed the cognitive loss, headaches, and thoracic strain, but did not address the allegations of injuries to the neck, low back, and left shoulder. Transervice is entitled to an award outlining the specific work-injuries Maddox sustained, and for which it is responsible.
Disposition: Affirming in Part, vacating in Part, and Remanding
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Flint Ink, Inc. v. Joseph M. Roberts, Dr. Lawrence Peters; WCB No. 200078660; Alvey; Entered 3/24/2017.
Facts: Roberts’ injuries from 1998 were to the left ankle and low back at L2-3. A settlement agreement was entered based on 18%, and future meds retained. In support of the agreement were reports of Dr. Peters and Dr. Todd Hockenbury.
Flint filed its MTR challenging treatment and prescriptions. It filed a U/R report of Dr. Chanda Kewalramani, a family practitioner, who found no reported increase in function after taking Morphine Sulfate and Hydrocodone, and they should be discontinued. Dr. David Smolins, an anesthesiologist, supported him.
Dr. Brett Bolte, a physical medicine and rehabilitation physician, recommended non-certification of a compound cream and TENS unit.
Dr. Rhaji Khuri, board certified internist, recommended weaning Roberts from Morphine Sulfate and Hydrocodone with cognitive behavioral therapy, and continued treatment with Lamotrigine is reasonable.
Flint also filed the report of Dr. Henry Tutt who diagnosed, inter alia, persistent complaints of low back pain and left leg pain. Tutt stated Roberts’ symptoms are, “continuously propagated by his long-term inappropriate and unnecessary iatrogenic opioid dependence and opioid hyperalgesia.”
Roberts introduced his own letter that he would be unable to continue working at his job without the medications.
Dr. Lawrence Peters stated Roberts would be unable to continue working without the medications, and, attempts to wean Roberts from the contested medications had been incapacitating. He went into great detail about the medication regimen and stated that Roberts had been stable for 10 years.
The ALJ found Dr. Peters to be persuasive that the treatment was the result of the work injury and subsequent surgery, and that Roberts continued to be productive on the current regimen.
Procedural History: Flint appeals from the Medical Dispute Opinion and Order resolving a medical fee dispute in favor of Roberts. The ALJ found compensable the ongoing treatment with medications prescribed by Dr. Lawrence Peters. Flint argues the decision is clearly erroneous, and the ALJ abused her discretion.
Issues:      1.) Did the evidence support the ALJ’s decision?  2.) Did the ALJ appropriately weigh the evidence?
Holding:     1.) Yes  2.) Yes
Reasoning: 1.) Dr. Peters outlined what was a successful treatment. While the other opinions could support a different conclusion, they do not compel a contrary result. The WCB will not substitute its opinion for that of the ALJ.
2.) The ALJ is not required to recount the record with line-by-line specificity nor engage in a detailed explanation of the minutia of his reasoning in reaching a result.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author:  Billy Joe Gibson v. Columbus Hoggs Agent; WCB No. 201502010; Alvey; Entered 3/24/2017
Facts: Gibson alleges injuries sustained in a MVA dropping his daughter off at school. Gibson was furnished a truck which he kept in his possession at all times. There were no restrictions on its use. Gibson was on his way to check on a well. First, he was to drop his daughter off at school. This was a deviation from his normal work route, and occurred on school property, but after he had dropped his daughter off. Gibson argued he was immediately resuming his employment to go directly to the well site at the time of the MVA. The ALJ found in favor of the Employer.
Procedural History: Gibson appeals from the decision dismissing his claim for injuries sustained in a MVA, arguing the ALJ erred in dismissing the claim by failing to apply  either the benefit to the employer or the dual purpose doctrine exceptions to the “going and coming” rule.
Issues:     1.) Did this fall within the “service to the employer” exception to the “going and coming rule?  2.) Did this fall under the “dual purpose” doctrine?
Holding:     1.) No      2.) No
Reasoning: 1.) Here there was a significant departure or deviation from the course and scope of the employment. Gibson was engaged in the personal errand of dropping off his daughter to school with no business purpose being served  2.) The deviation was personal in nature. Gibson had not resumed the business purpose of the trip at the time of the accident, although he was attempting to do so.  When a trip serves both personal and business purposes, it is a personal trip if the trip would have been made in spite of the failure or absence of the job purpose and would not have been made in event of the failure of the private purpose.
Disposition: Affirmed
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author:  Professional Financial Services v. Serena Gordon; WCB No. 201392143; Rechter; Entered 3/31/2017
Facts: The facts are largely undisputed. No medical was discussed.
Gordon injured her left lower extremity as she stepped from a curb while going to her car. Gordon spends a portion of her time on the road. She was provided a laptop, for business use only, which she used to work at home and while on the road. It was necessary for conducting her business. Gordon had originally left work, but had forgotten her laptop. She returned to the office to retrieve it, and upon returning to the parking lot, she sustained her fall. There were no specific spaces for her parking, and the employer did not maintain the lot, which was also used by other businesses.
Procedural History: PFS appeals from the award of TTD, PPD, and medical benefits, arguing the ALJ erred in determining Gordon’s claim is work-related under the “going and Coming” rule, and that the ALJ failed to provide sufficient findings  of fact.
Issues: Was Gordon providing a service to the employer by returning to the office building to retrieve her tablet?
Holding: Yes
Reasoning: PFS provides the laptops to employees so they can conduct business from their homes and while on dealership visits. This was the requisite proof to support the ALJ’s finding that the return trip to the office was of benefit to the employer because the purpose was to retrieve the laptop. Gordon did not resume regular “coming and going” until she had again returned to her vehicle to resume her drive home. 
The findings of the ALJ were sufficient.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Kimberly Roach v. Owensboro Health Regional Hospital; No. 2015-CA-001696-WC; Acree; TO BE PUBLISHED; Rendered4/7/2017
Facts: ALL PRACTICIONERS TAKE PARTICULAR NOTE. Roach suffered a work-related injury on 12/28/2012, diagnosed as post-traumatic right cubital tunnel syndrome. Dr. Perry assigned 3% and was released to RTW. The scheduling order directed parties to file copies of all known exhibits and a notice of contested issues prior to the BRC. Roach did not identify exhibits of any unpaid or out-of-pocket medical bills and did not list “unpaid or contested medical expenses” as a contested issue in her pre-conference notice.  It was not marked on the memorandum and order as a contested issue. At the hearing, Roach testified concerning these issues for the first time on RE-DIRECT. She also testified that she never submitted the bills to Owensboro Hospital or its medical payment obligor for payment. The ALJ did not specifically address these issues in his opinion, but simply held that the decision regarding the work relatedness of Roach’s injury was dispositive.
Owensboro appealed, asserting the ALJ erroneously failed to address the compensability of Roach’s outstanding medical bills, and they were not responsible because Roach did not disclose the bills until her re-direct examination at the final hearing in violation of the regulations governing workers’ compensation. The WCB ruled that introducing these bills for the first time on re-direct examination at the formal hearing is not the appropriate time to raise entitlement of the bills as an issue to be decided by the ALJ.
Procedural History: Roach appeals from the decision of the WCB vacating an ALJ’s conclusion that out-of-pocket medical expenses paid by Roach and an unpaid anesthesiology bill were compensable.
Issues: Was the WCB correct in strictly upholding its regulations?
Holding: Yes
Reasoning: 803 KAR 25:010 sec. 13 is compulsory in nature. Roach’s failure to comply with the regulations regarding introduction of exhibits and identification of contested issues prevented the ALJ from resolving the compensability of the unpaid and out-of-pocket medical bills. Subsection (9) of the regulation says the plaintiff “shall bring to the BRC copies of known unpaid medical bills not previously provided and documentation of out-of-pocket expenses.” Shall means shall. It is a word of command not subject to disregard. Further the regulations provide that the ALJ shall prepare a memorandum identifying issues and stipulations, and shall be signed by the parties or their attorneys. And, finally, those regs provide that “Only contested issues shall be the subject of further proceedings.” All of this is of course compounded by the fact that Roach never addressed these issues until re-direct examination.
Disposition: Affirmed
Court of Appeals Panel: Acree, D. Lambert, Jones
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Doug Trevino v. Transit Authority of River City; WCB No. 201360923; Stivers; Entered 4/7/2017
Facts: Trevino alleges injuries while as a TARC coach operator “when he was assaulted by a passenger.” TARC asserted that Trevino was injured as a result of an altercation in which he was the aggressor, which was outside his employment as a bus driver, and, his injuries were caused primarily by his willful intention to injure another, citing KRS 342.610 (3).
There was a dispute over who started the altercation, and after studying video of the incident, the ALJ determined that Coleman originally pushed the passenger trying to get him off the bus following verbal exchanges. Coleman testified that he was not trying to injure the passenger when pushing him off the bus.
Procedural History: Trevino appeals from the order dismissing his claim for income and medical benefits against TARC, asserting the ALJ erred in relying on KRS 342.610(3) dismissing his claim.
Issues: Did the ALJ properly base his decision on KRS 342.610(3), “whether Mr. Trevino’s injuries were proximately caused primarily by his willful intention to injure another.” 
Holding: Yes
Reasoning: The affirmative defense was properly asserted and preserved by TARC, and Coleman did not contest it as an issue. The actions on the bus, as captured by the surveillance video, satisfied the standards under the statute.
The ALJ set forth in detail what the tape depicted, and he has the sole authority to judge all reasonable inferences to be drawn from the evidence.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author:  Kay Brooks v. Kentucky Transportation Cabinet, Workers’ Compensation Fund (f/k/a Special Fund); ECB No. 199207327; Stivers; Entered 4/7/17.
Facts: There were several issues in this MFD concerning prescriptions and treatment, but the only issue on appeal was the order signed by ALJ Borders that allowed the Transportation Department to choose the Claimant’s treating physician.
In a MTR Brooks was awarded PTD. She eventually moved to Alabama, and there was administered pain management by Dr. Ruan and Pain Specialists. The Transportation Cabinet filed its Motion to Choose the Treating Provider asserting that Dr. Ruan had refused to allow prescriptions to be filled by any other entity aside from his in-house pharmacy. Ruan refused to release the prescriptions to Brooks or the third party provider selected by the Cabinet, further causing the Cabinet to bring into play the reasonableness and necessity of the pharmaceutical charges of the pharmacy owned by Ruan and Pain Specialists.
Subsequently, Transportation renewed its motion on the grounds that Ruan had been arrested on fraud and drug-related charges by the FBI and DEA. 
Another physician chosen by Brooks, in Ruan’s practice was rejected by the Cabinet.
Brooks asserts that the ALJ failed to make findings demonstrating that one of the three criteria set forth in KRS 342.070 (7) was present.
Procedural History: Brooks seeks review of the order in a MFD that adopted ALJ Border’s order allowing the Transportation Cabinet to choose her treating physician.
Issues: Did the ALJ make sufficient findings under KRS 342.070 (7) in support of the decision to allow the cabinet to choose Brooks’ treating physician?
Holding: No
Reasoning: The decision must set forth sufficient findings so the parties are reasonably appraised of the basis of the decision.
Importantly here, one of the three criteria set forth in KRS 342.070 (7) must be met:
1.) The employee is not receiving proper medical treatment and the recovery is being substantially affected or delayed; or,
2.) The funds for medical expenses are being spent without reasonable benefit to the employee; or,
3.) Because of the physician selected by the employee or because of the type of medical treatment being received by the employee that the employer will substantially be prejudiced in any compensation proceedings resulting from the employee’s injury or disease.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author: Leticia Downs v. Baptist Hospital East; WCB No. 201081256; Stivers; Entered 3/31/2017
Facts: Downs sustained a 2010 injury to her low back for which she was awarded a 13% award based on an impairment rating of 13% from Dr. Jules Barefoot. On November 6, 2015 she filed this MTR alleging a worsening of condition which has caused her to be permanently and totally occupationally disabled.
Downs filed the records of Dr. Gary Reasor including a report that stated her degenerative changes had been accelerated by her injury, and changing her current WPI from 13% to 16%, the additional 3% added pursuant to the Guides for her now chronic pain. He did not believe she could return to work.
Baptist Health filed the IME of Dr. Timir Banerjee, who thought she had a 13% WPI, but no change in condition, except for a dependency on narcotics. He thought she could work, and assigned restrictions which were the same as she would have had in 2012, at the time of her settlement.
The ALJ, relying on Dr. Banerjee, overruled her MTR. On reconsideration, Downs changed her position, and argued that she was at least entitled to PPD benefits enhanced by the 3 multiplier.
Procedural History: Downs appeals from an order denying her an award of PPD benefits enhanced by the three multiplier in this MTR.
Issues: Was the failure of the Plaintiff to set forth an alternative argument of entitlement to increased PPD benefits based on an alleged worsening of her condition fatal to her request for the enhanced benefits?
Holding:  Yes
Reasoning: Plaintiff’s argument on appeal for benefits enhanced by three does not match her argument asserted in her MTR, as well as her brief to the ALJ, but she failed to set forth an alternative argument of entitlement to increased PPD benefits based upon the alleged worsening of her condition. Further, the reliance on the report of Dr. Banerjee was proper, his rating was the same as Dr. Barefoot’s 4 years prior, and he specifically stated there was no change except for her dependency on narcotics.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Landmark Media Publishing, LLC D/B/A Standard Publishing Company as Insured/Administered by Praetorian/QBEAI v. Mark Branham; No. 2016-CA-000693-WC; Acree; Rendered 4/7/2017; Not To Be Published
Facts: This was a case we brought you last year when the WCB rendered its decision. This time, however, the employer and the COA focused on Dr. Bilkey’s report instead of Dr. Ballard’s change of position from her initial report without explanation.
Branham alleged 4 injuries, only the 2 hernia related injuries of 2013 and 2014 are subjects of the appeal.
Prior to the 2013 injury Branham was seen by Dr. Elizabeth Doyle, who diagnosed negative for hernias. A CT scan in 2012 revealed a “small fat containing umbilical hernia”, though not mentioned by the radiologist in his impressions.
Dr. Paul Rafson examined Branham in December, 2012. The CT scan was “unremarkable”, and he did not detect anything serious. Four months later he referenced the umbilical hernia, but he did not feel surgery was warranted.
On July 8, 2013 when wielding a wrench Branham felt a tearing sensation in the abdominal area around the navel. With excruciating pain. This was aggravated a couple weeks later, and he then noticed a “little bulge in my bellybutton.”
Hernia surgery was performed in December, 2013. On April 1, 2014, he again felt a tearing sensation, for which a surgery was performed on 10/7/2014.
Dr. Warren Bilkey diagnosed 2 work related injuries and hernia repairs. There was no rating for the first injury, but 2% for the second injury.
Dr.  Ellen Ballard, for the employer, initially agreed with Bilkey on work-relatedness, but assigned 0% for both injuries. She later changed her mind on work-relatedness, without a specific reason for the change.
The ALJ, persuaded by Dr. Bilkey and Dr. Ballard’s initial report, found work-relatedness, but assigned 0% for the second injury, Ballard’s assessment.
Procedural History: The ALJ awarded Branham medical expenses for the cure and relief from the effects of an alleged work-related injury. The WCB affirmed. Appealing, Landmark claims the ALJ and the WCB ignored Branham’s medical record, which revealed Branham’s condition was identifiable, symptomatic, and surgical prior to the work incident, and instead erroneously relied on the unreliable opinion of an IME.
Issues: Did the medical evidence support Dr. Bilkey’s evaluation?
Holding: Yes
Reasoning: There was nothing in the medical records directly linking the umbilical hernia to Branham’s abdominal pain prior to the 2013 work injury. Dr. Rafson thought the CT scan was unremarkable. He was not convincing about a surgery “to see if that is the problem.” Branham was recommended probiotics. The medical evidence was further supported by Branham’s testimony that he experienced a tearing sensation in the abdomen after which the character and nature of his pain changed dramatically.
The COA agreed with the WCB reasoning on Dr. Ballard’s change of opinion, without further comment, and indicated that Ballard’s opinion was merely secondary to that offered by Bilkey.
Disposition: Affirmed
ALJ: Hon. Roland Case
Court of Appeals Panel: Acree, Jones, and J. Lambert

Case Name, Citation, Author:  Publishers Printing Co LLC v. David Vergara; WCB No. 200594473; Rechter; Entered 3/31/2017
Facts: Vergara’s original claim was resolved by opinion and award rendered 1/17/2008 by ALJ Overfield who found Vergara permanently and totally disabled with no pre-existing active occupational disability. A post-award settlement was reached agreeing to the PTD, however carving out a 34% for pre-existing active. Medicals for cervical and lumbar remained open.
During the claim, Vergara had undergone an L5-S1 transforaminal lumbar interbody fusion and an anterior cervical discectomy and fusion at the C5-6 level. Pain persisted. In June, 2014, Vergara moved to Texas.
There he saw Dr. Richard Male. He reported the failed surgeries, including a procedure by Dr. Frank Castro in September, 2014. After physical therapy, he was referred to a pain clinic. Following injections and MRIs, he was referred for possible surgery.
Dr. Glenn Babus conducted a U/R for lumbar injections, and determined they were not medically necessary.
Publishers filed this dispute, submitting the report of Dr. William Nemeth, contesting all lumbar related charges, including a lumbar decompression surgery performed on 1/26/2016. This was from a review of records only, and no physical examination. Only a cervical and lumbar strain and sprain were work-related.
Dr. Mustasim N. Rumi performed the surgery to the lumbar area in January, 2016. This was following a lumbar MRI with findings of multi-level problems in the lumbar area.
Following the surgery, Dr. Nemeth again reviewed the surgical records and concluded the surgery was unrelated to the original work injury.
In his opinion, the ALJ essentially disregarded Dr. Nemeth’s diagnosis that the original injury was merely strain and/or sprain, citing the ALJ’s award that the injury was not sprain/strain. He found Dr. Nemeth’s opinion “null”.
Procedural History: Publishers appeals from an opinion in a post award medical dispute. The ALJ found Publishers responsible for the payment of Vergara’s surgery, hospitalization and x-rays.
Issues: 1.) Did Vergara meet his burden concerning work-relatedness? Did the ALJ properly use the doctrine of res judicata?
Holding: Yes
Reasoning: At this stage in the proceedings, after an ALJ has entered an award and findings, the employer is not permitted to litigate whether Vergara sustained a work-related injury to the lumbar spine. The ALJ did not find that res judicata bars the reopening for a medical fee dispute. He limited the application to the finding regarding the nature of the work injury and its effect on the weight to be given to Dr. Nemeth’s opinion which was premised on a view of facts contrary to the previous determination.
The ALJ considered the relevant evidence and the prior decision in the matter. There was medical evidence to support the ALJ decision, and he had a legitimate basis for rejecting Dr. Nemeth.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  VanMeter Contracting, Inc. v. Jamie Paula Groce; No. 2016-CA-000776-WC; Acree; Rendered 4/14/2017; TO BE PUBLISHED
Facts: This PUBLISHED case is significant when benefits are sought to be increased for safety violations when there has been an agreement reached with KOSHA.
Groce was seriously injured while working with a crew constructing a concrete retaining wall next to a highway. She was on top of the wall when it collapsed.
The ALJ awarded her PTD, however, the ALJ found that Groce had not met her burden for proving a violation of a safety statute or regulation or the general duty clause of KRS 338.031 (1) (a), and was therefore not entitled to an enhanced award.
As a result of an investigation, KOSHA issued 3 citations, with VanMeter conceding liability for the first 2, maintaining those citations did not contribute to the failure of the wall.
Subsequently VanMeter and KOSHA entered into a Stipulation and Settlement Agreement whereby VanMeter did not admit any violation of the Act or standards, or the truth of any allegations.
After the ALJ refused to increase benefits for violation of the safety award, Groce filed a petition for reconsideration arguing that in a co-worker’s workers’ compensation claim based upon the same incident, the ALJ found a safety violation and enhanced benefits accordingly, which was denied.
VanMeter’s sole argument is that the WCB erred in finding its settlement of a KOSHA enforcement action and payment of a fine equivalent to the finding of a safety violation in a workers’ compensation proceeding.
Procedural History: VanMeter appeals from the opinion of the WCB reversing in part, vacating in part, and remanding the opinion, order, and award of the ALJ which determined that Groce did not sustain her burden of proving her employer’s intentional violation of a safety statute or regulation, and, according to the ALJ should not be entitled to the 30% increase in compensation benefits for a safety penalty as provided in KRS 342.165 (1). The COA concludes that the WCB misconstrued controlling authority and flagrantly erred in evaluating the evidence.
Issues: Did the WCB misconstrue controlling authority and flagrantly err in evaluating the evidence in this safety violation case?
Holding: Yes
Reasoning: In reversing the ALJ, the WCB applied the concept of offensive collateral estoppel to award benefits based on findings of a different administrative tribunal. This use was previously rejected by Kentucky courts.
The ALJ decision, after a thorough review of the evidence, found the evidence and testimony was not persuasive, and specified his reasoning. The testimony cited by the WCB in its decision was not credible in the opinion of the ALJ. The WCB substituted its opinion.
It is the ALJ who makes the determination of whether a violation of a safety statute or administrative regulation has occurred.  A settlement agreement for KOSHA citations and resulting fine is not evidence sufficient to compel a finding of an intentional safety violation.
Disposition: Reversing
Court of Appeals Panel: Kramer, C.J., Acree, and Jones
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  Central Christian Church as Insured by KESA v. Benjamin Dunaway; Claim No. 201595081; Rechter; Entered 2/10/2017
Facts: Dunaway injured his neck on July 5, 2014, while working for Central. He was terminated in December 2014, Dunaway claims, because he called and failed to report to work. In his position he had keys to the property, as well as a credit card. He failed to turn these in until about 6 weeks after his termination. In the meantime, approximately one and a half months after his employment ended, Central alleged Dunaway had stolen and used a credit card from his supervisor for personal purchases. He was charged convicted, and required to make restitution.
Central alleged Dunaway was terminated for stealing and using the credit card, and the only logical conclusion is that his employment was terminated because of the theft of the card. Central however offered no proof to substantiate the allegation. The criminal records were not tendered, and Dunaway was not questioned about the reason for his termination. Dunaway acknowledged being charged and convicted, but unequivocally testified the incident occurred one month after his termination.
Procedural History: Central appeals from the award to the Plaintiff which enhanced the PPD benefits by the two multiplier.
Issues: Was there sufficient evidence to uphold the two multiplier?
Holding: Yes
Reasoning: The only evidence supported the ALJ’s determination that the termination occurred before the criminal activity. Therefore it could not be the basis for the cessation of his employment at the same or greater wage. Central did not offer the records from the criminal conviction which might have confirmed whether the unauthorized use of the credit card occurred before or after his employment ceased. At no point did Dunaway ever testify that he was terminated as a result of the use of the credit card.
The only evidence supported the ALJ’s determination that the termination occurred before the criminal activity.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Nesco Inc. v. Louise Perkins; WCB No. 201497379; Stivers; Entered 3/10/017
Facts: Perkins alleged a January 8, 2014 injury to her left kneecap as a result of a trip and fall. She had injured her knee in the 1960s when she was 9 years old and had surgery to remove a cyst degenerative lateral meniscus on the knee.  She denied any treatment for the knee, or any problems with the knee since. 
Dr. John Sanchez performed left knee surgery on May 13, 2014, and Dr. Stephen Duncan at UK performed a total knee replacement on June 17, 2015. His post-operative diagnosis was:
1. Advanced degenerative joint disease secondary to osteoarthritis of the left knee.
2. Left complex valgus deformity.
Nesco introduced Dr. Sanchez who believed Perkins could work at the “light” category. He believed a TKR was the only way for her to RTW regular duty, and it would be for pre-existing arthritis.
Nesco introduced Dr. Michael Best who thought the only condition causally related to the slip and fall was the production of pain and swelling that required knee debridement and partial lateral menisectomy. He determined Perkins had an active impairment prior to the injury, and assessed 1%.
Nesco introduced various reports of Dr. Thomas Loeb, who concluded only the lateral meniscus tear can be considered work-related, and the osteoarthritis in the left knee was a longstanding pre-existing active condition. Loeb assigned 1% for the meniscus, and 15% for the TKR, however, continued to opine the TKR was unrelated to the work injury.
Perkins introduced the IME of Dr. James Owen. He thought within reasonable medical probability the injury was the cause of Perkins’ complaints. He saw no evidence of prior problems. The arthritis was brought into disabling reality. He assessed 20%, all to the injury.
The ALJ relied upon Dr. Owen to find the TKR was work-related. There was no record of any problems with the knee for 47 years, and it was undisputed that the osteoarthritis was asymptomatic. The ALJ disregarded the opinions of Dr. Loeb, except to accept his 15% impairment.
Procedural History: Nesco appeals from an award of PPD, TTD and medical benefits when the ALJ found that Perkins sustained a work-related left knee injury which necessitated left knee replacement surgery. On appeal, Nesco challenges the ALJ’s finding that Perkins’ total left knee replacement surgery is work-related.
Issues: Did the testimony and evidence support the finding that the left TKR was work-related?
Holding: Yes
Reasoning: The unrebutted testimony of Perkins established that prior to January, 2014, she had no left knee symptoms, and following the surgery in 1967, her left knee did not impede her activities. Some of the physicians did not opine whether the left knee osteoarthritis was dormant or active prior to the work injury. The ALJ was left to choose between Dr. Loeb or Dr. Best or Dr. Owen.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  Steven Price v. Toyota Motor Manufacturing Kentucky; WCB No. 200488349; Stivers; Entered 3/10/2017
Facts: On February 3, 2004 Price injured his left ankle/foot and right knee. Benefits were paid, and Dr. Sammarco assigned a 4% impairment for the left foot. A Form 110 Agreement was entered on August 21, 2006 for benefits paid, and a lump sum of $4200.50 for the 4% to the left foot. There was no waiver or buyout of past or future medical expenses. The knee injury was listed on the Form 110. There was no rating assigned to the knee.
A Form 101 was filed on September 2, 2016 alleging the injury to the knee in 2004, and referencing a settlement for the foot only. Treatment for the knee was listed, including 3 surgeries, and corresponding periods of TTD, the most recent being October 14, 2015 thru January 17, 2016. An IME attached to the Form 101 by Dr. James C. Owen assessed an 8% WPI, and the likely need for a knee replacement. Both the knee and the ankle were listed on the Form 110 for injury.
Toyota’s Special Answer included: 1.) statute of limitations; 2.) failure to join claims; 3.) the claim was previously settled by the parties.
Price claimed in his testimony that it was his understanding that the settlement of his claim was only for the foot, and that the only impairment rating had been for his foot, and not the knee.
Procedural History: Price appeals from an Opinion and Order dismissing his Form 101 as an improper means of reopening the 2006 settlement. Price alleged there was no consideration for the alleged waiver of rights regarding Price’s right knee condition; or, in the alternative, there was no waiver of rights regarding his right knee condition.
Issues: Was a remedy available to the claimant to file a Form 101 when a previous Form 110 Settlement Agreement listed his body part involve under injury, but no impairment rating was assigned to that body part?
Holding: No
Reasoning: Settlement agreements are addressed by the Act in KRS 342.265. Under the safeguard of an ALJ, once a voluntary compromise agreement has been reviewed and approved by an ALJ, its legitimacy has the effect of being permanent and irrevocable with very few exceptions.
Reopening under KRS 342.125 is the remedy intended for redressing specific situations that occur or come to light after a properly executed Form 110 has been approved.
Any assertions regarding Price’s right knee injury, including but not limited to a change of disability, the compensability of medical expenses, whether consideration was paid for a waiver of rights concerning the knee injury, and whether the Form 110 even contained a waiver of rights concerning the right knee injury, could only have been raised in a timely filed Motion to Reopen pursuant to KRS 342.125.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  Rex Coal Co. Inc. v. Lonnie Huff; WCB No. 201501945 & 201501131; Rechter; Entered 3/17/2017
Facts: Huff worked for 40 years in mining, and quit working because of pain in his joints. At the time he ceased working he was having problems with his hearing.
Dr. Raleigh Jones of UK performed an evaluation at the request of DWC. He diagnosed occupationally related, noise-induced sensorineural hearing loss and assigned an 11% impairment. He recommended bilateral hearing aids, and for Huff to use hearing protection if he is going to be exposed to any further noise in the future.
Huff submitted a report from Beltone. Testing revealed mild to moderate binaural hearing loss.
The ALJ found the degree of hearing loss would restrict him from returning to work as an underground coal miner without being a danger to himself and other employees.
The ALJ found that Huff had an 11% impairment as a result of the occupational hearing loss, and since Huff could no longer return to work in his customary occupation as an underground coal miner and work safely given his degree of hearing loss, he was entitled to the three factor.
Procedural History: Rex appealed from an award to Huff of TTD, PPD (enhanced by 3), and medical benefits for a hearing loss claim. It claims the ALJ erred in enhancing Huff’s income benefits. 
Rex Coal appeals only from the ALJ’s decision relating to the hearing loss claim, and therefore the proof relating to the cumulative trauma claim was not discussed in the opinion.
Issues: Did the ALJ opinion adequately identify evidence that supported the finding that Huff cannot return to work safely due to his hearing loss alone?
Holding: No
Reasoning: The application of the three multiplier was not supported by substantial evidence. At no point did Huff testify he would be unable to perform his work tasks while wearing hearing protection. He did not claim he would be unable to perform the work safely due to his hearing loss. The reason he quit work was not due to the hearing loss.
The case was remanded with directions to enter an amended order consistent with the WCB opinion.
Disposition: Reversed and Remanded
ALJ: Hon. Roland Case

Case Name, Citation, Author: Landy Mills v. Nally and Hamilton Enterprises; 2016-SC-000327-WC; Rendered 3/23/2017; Not To Be Published
Facts: Mills sustained injuries and filed his claim. At the hearing, Mills agreed to a $40,000.00 lump-sum agreement that included interest, attorney fees, vocational rehabilitation, temporary total disability, permanent partial disability, a waiver of right to reopen, and a waiver of medical expenses. The agreement specifically allotted $8000.00 to the waiver of right to reopen. 
The agreement also recognized that Mills was apprised to the terms and conditions and fully understood he was dismissing future benefits with prejudice.
The CALJ approved the agreement on 8/27/2013. In the meantime, Mills received an MRI and was referred to Dr. Bean for surgical intervention on 8/26/2013. Accordingly, on 9/6/2013, Mills filed a “Motion to Set Aside Proposed Agreement” asserting his need for surgery as the basis. Nally opposed the motion, arguing that this was really just a motion to reopen the case, and that the express terms of the agreement prevented Mills from pursuing.
Eventually, the ALJ ordered the agreement was valid and enforceable and that the motion did not comport with administrative regulations. A reopening can only be justified under certain circumstances, and since Dr. Bean’s report was before the agreement was signed, the need for surgery was not “newly discovered evidence”.
The ALJ denied the motion, stating it was essentially a motion to reopen, and the WCB affirmed.
The COA affirmed the WCB, holding that a MTR under KRS 342.125 was his exclusive remedy from the approved settlement, despite his efforts to style his motion differently. The agreement was valid, and Mills failed to prove the existence of fraud, mistake, or newly discovered evidence, so the ALJ had no basis for reopening the claim.
Procedural History: Mills appeals from the COA decision affirming the WCB, which upheld the ALJ.
Issues: Was the ALJ, as affirmed by the WCB and COA, correct in not allowing Mills’ motion to set aside the agreement?
Holding: Yes
Reasoning: KRS 342.265 (4) provides: If the parties have previously filed an agreement which has been approved by the administrative law judge, and compensation has been paid or is due in accordance therewith and the parties thereafter disagree, either party may invoke the provisions of KRS 342.125, which remedy shall be exclusive.
The only way to alter the approved agreement is to invoke KRS 342.125, and Mills did not do this. Moreover, his agreement expressly contracted this right away. He could not continue his claim once the agreement was approved.
Disposition: Affirmed
ALJ: Hon. J. Gregory Allen

Case Name, Citation, Author: Margie Mullins v. Leggett & Platt; 2016-SC-000383-WC; Rendered 3/23/2017; TO BE PUBLISHED
Facts: This is yet another case which we reported to you in the fall. This one is to be published by the Supreme Court.
The issue in the case is a technical one. It involves granting the employer a multiplier reflecting the future periodic payment of the attorney’s commuted to a present value.
Counsel was awarded $9401.41 in fees, and Mullins elected to have this sum paid in a lump sum by Leggett in a single payment with her weekly benefits reduced pro-rata. According to Mullins, dividing the $9401.41 by the 373 remaining weeks yields a $25.20 reduction per week, meaning that she anticipated her reduced weekly rate would be $193.69.
CCMSI indicated her weekly benefits would be $191.36, calculating her benefits by statute and regulation, and recouping the present-day value of the lump-sum fees to account for the time-value of money. She alleges this weekly reduction of $2.33, or $869.09 in sum, allowed CCMSI unilaterally to take extra money from her benefits without ALJ approval, to perform the calculation itself, and thereby breach the terms of the settlement agreement.
Procedural History: Leggett & Platt appealed from the decisions of the ALJ, WCB, and the COA that the regulations promulgated under statute contemplate the ability to deduct present-value discounts for lump sum payments effectuated by discounting future benefits.
Issues: Did the WCB and the COA correctly determine that the plain text of the WC statutes, and regulations promulgated, contemplate the ability to deduct present-value discounts for lump-sum payments effectuated by discounting future benefits?
Holding: Yes
Reasoning: KRS 342.320 authorizes the discount. The claimant pays the fees; KRS 342.320 (4) (b) provides the mechanism. CCMSI followed the formula found in 803 KAR 25:075, Section 1.
Mullins’ contention that the calculation is made unilaterally, and without her input is without merit. Attorney fees are not mentioned in the settlement agreement. The payment of fees, and their calculation are dictates of law.
Disposition: Affirmed
ALJ: Hon. Robert L. Swisher

Case Name, Citation, Author: Andre Pyatt v. UPS Supply Chain Solution; WCB No. 201598230; Rechter; Entered 3/10/2017.
Facts: Pyatt sustained a low back injury in June, 2014 when he felt a “pop” in the back. He denied any hip pain, although did complain of radiculopathy. Pyatt had sustained a hip dislocation at age 15 with resulting surgery. He was working within restrictions until January 15, 2015, when he returned to his regular position, where his low back pain progressed during the day, and his hip pain began. He described the back pain as “burning”, and the same as in June, 2014, an injury he claimed to have never fully recovered from.
Dr. Jules Barefoot performed an IME for Pyatt and diagnosed end-stage degenerative osteoarthritis of the right hip, describing it as dormant, asymptomatic and non-disabling prior to the injury. It was activated into disabling reality. The low back pain likely came from the hip region, and he assigned 20% for the arthritis of the hip with bone on bone contact.
UPS submitted treatment records of Dr. Peter Urda who opined an exacerbation of the prior injury, and diagnosed cervical and lumbar sprain.
Pyatt submitted treatment records of Dr. Venu Vemuri who diagnosed end-stage right hip osteoarthritis, low back pain and cervical radiculopathy. The hip condition caused the back pain. Vemuri referred Pyatt to Dr. Yakkanti for evaluation of the right hip degenerative joint disease.
Pyatt also submitted treatment records of Dr. Madhusudhan Yakkanti who diagnosed right hip degenerative arthritis, post-traumatic. Most of the back problems were related to the hip. Both Dr. Vemuri and Dr. Yakkanti treated Pyatt at the Louisville Orthopedic Clinic.
Dr. Ron Fadel saw Pyatt for UPS. He diagnosed status post strain/sprain of the lumbar spine, possible age related degenerative spondylosis with secondary foraminal/canal stenosis; possible lumbar discopathy with secondary compression neuropathy; end-stage post-traumatic joint disease right hip; possible occult peripheral neuropathy. The lumbar and hip were pre-existing active. 
The ALJ found no evidence of a work-related back injury, and, found that any hip condition was pre-existing active. It could not be pre-existing and dormant and brought into reality because the condition now must be in disabling reality worse than prior to the date of the injury. The ALJ relied primarily on Dr. Fadel.
Procedural History: Pyatt appeals from an Opinion and Order finding that Pyatt sustained no permanent work-related injury and dismissed the claim with the exception of benefits already paid. Pyatt claims the ALJ erred in finding no permanent work-related injury.
Issues: Did the evidence compel a finding of a work–related injury?
Holding: No
Reasoning: No. The original records do not document a hip injury or complaints of hip pain. No physician opined a physical change in the condition of the hip caused by alleged work injuries. Dr. Fadel was specific that the hip was not work-related. The ALJ found Fadel’s opinions most persuasive over any conflicting treating physician testimony.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author: Commonwealth of Kentucky, Uninsured Employers’ Fund v. Morgan Crayne, Piper Logging; 2016-SC-000584-WC; Rendered 3/23/2017; Not To Be Published; Memorandum Opinion
Facts: This is another case we previously brought to you. It’s the one where the guy stepped on a snake while working and injured his low back. Later that same day, while still working and driving a truck, Crayne’s seat moved forward, intensifying the back pain. Both Dr. Davies (Crayne’s doctor), and Dr. Best (UEF’s doctor) both indicated the work event of April 17, 2013 is what caused the Plaintiff’s back condition which resulted in surgery. Crayne testified he worked 3 to 4 days per week, at $100.00 per day, cash. Piper did not have nor produce adequate wage records. The ALJ found a work-related injury, and based AWW on an average of 3 to 4 days per week, at $100.00 per day.
Procedural History: The UEF appealed the ALJ award to the WCB. It then appealed a unanimous WCB to the COA. Now it appeals a unanimous COA opinion to the Supreme Court.
Issues:  1) Did the medical testimony establish a work-related injury? 2) Did substantial evidence support the finding on notice? 3) Was AWW properly calculated?
Holding:  1) Yes 2) Yes 3) Yes
Reasoning:  1) The ALJ considered the depositions and evidence of record. Also, both doctors, including UEF’s, found the injury to be work-related. 2) Medical records supported the date, one employee saw the accident, and another confirmed a conversation about it, and the owner was present when it happened. There was substantial evidence. 3) The employer did not provide the required paperwork. There was no dispute as to how the wages were paid. There were some checks produced by Crayne to support his testimony.
Disposition: Affirmed
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author: Voith Industrial Services Inc. v. Astin Gray; No. 2016-CA-001083-WC; Dixon; Rendered 3/24/2017; TO BE PUBLISHED
Facts: This is an affirmation of a WCB case we brought to you last fall. Note that IT IS TO BE PUBLISHED.
In short, while cleaning the paint room, Gray inhaled chemical fumes from Purge solvent. He was immediately taken to the EER. He was eventually diagnosed with asthma reactive airway dysfunction (RADS). He was also then diagnosed with sleep apnea with oxygen deficit. He returned to work, but not allowed exposure to Purge solvent. He remained somewhat symptomatic, but because he was to avoid exposure to paint chemicals, he could not perform all of his duties in the paint room. Gray submitted the IME report of Dr. Warren Bilkey who determined Gray developed RADS, asthma, and sleep apnea as a result of inhaling the Purge solvent. He assigned 22%. Voith submitted Dr. Douglas Lotz, an allergist and immunologist, who diagnosed allergic rhinitis and moderate persistent occupational asthma as a result of the exposure. He assessed 10% and disagreed with Bilkey concerning the sleep apnea and RADS. The ALJ ruled that Gray developed occupational asthma, RADS, and sleep apnea as a result of the exposure. He noted there were no sleep problems before the exposure. He also awarded the three multiplier since Gray could not perform the essential job duties he performed pre-injury. The WCB affirmed on the “three” issue and on the sleep apnea, but remanded on a TTD issue stating that the ALJ had failed to properly analyze the issue of TTD. TTD was not involved in the appeal, nor was the WCB decision further explained.
Procedural History: Voith sought review of a WCB opinion which Affirmed in Part, Vacated in Part, and Remanded an ALJ award of PPD to Gray. Voith’s appeal went to the “three” issue and sleep apnea.
Issues:  1) Was there evidence to support the ALJ’s award of the “three” multiplier”? 2) Was the evidence sufficient to support the ALJ’s finding of work-related sleep apnea?
Holding: 1) Yes 2) Yes
Reasoning: 1) The ALJ found that Gray’s pre-injury job required him to work in the paint area, and that he was no longer able to tolerate the presence of Purge solvent as he had pre-injury. The continued pulmonary symptoms and limitations provided a reasonable basis for the ALJ to conclude that Gray is unlikely to continue to earn a wage equal or greater than the pre-injury earnings for the indefinite future. 2) Bilkey’s testimony was sufficient. He noted Gray had no history of sleep disturbance prior to the work incident, and unequivocally stated he found the diagnosis resulted from the work incident. Medical experts are permitted to draw conclusions as to causation based upon the relationship of symptoms to the environment or the elimination of other possible factors when determining causation.
Disposition: Affirmed
Court of Appeals Panel: Combs, Dixon, and Nickell
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author: Jason White v. United Parcel Service; WCB No. 201584752; Rechter; Entered 3/10/2017
Facts: White sustained a calcaneus fracture and complete tear of the distal Achilles’ tendon on May 8, 2015. Doppler images at the time were negative for a DVT. Surgery was performed June 17, 2015. On August 20, 2015 he underwent a venous study which showed a DVT in his right calf. He was prescribed Lovenox and Xarelto. Dr. Andrew DeGruccio conducted 2 IMEs, the second on 4/18/2016 which dealt with the DVT. He opined the DVT was related to White’s “hypertensive episodes combined with his diabetes and his morbid obesity, which has continued to worsen.” Dr. Warren Bilkey, for White, characterized the DVT as a complication of the surgery, and therefore the injury. He expressed a continued need for blood thinners, and found no permanent impairment. The ALJ dismissed the DVT portion of the claim, explaining that Bilkey did not adequately explain the nature of the causal relationship, and, that Degruccio noted some records of White’s doctors who followed him for clots, and told him that he had a blood factor that indicates a higher risk for blood clots.
Procedural History: White appeals from an award for income and medical benefits for a right ankle injury, but denying medical benefits for a deep vein thrombosis (“DVT”). The WCB addressed only the DVT portion of the claim.
Issues: Did the evidence compel a finding that the DVT was work-related?
Holding: No
Reasoning: The ALJ was free to choose the evidence to rely on in his decision. Dr. Bilkey failed to explain his conclusion. Dr. DeGruccio was more convincing and explained his reasons for doing so.
Disposition: Affirmed
ALJ: Hon. Robert L. Swisher

Case Name, Citation, Author:  Raleigh P. Blackburn v. Kentucky Fuel Corporation; WCB No. 201402213; Alvey; Entered 2/10/2017.
Facts: Blackburn filed his claim alleging he contacted CWP in the coal mining industry. His date of last exposure was 5/5/2014 while employed by Kentucky Fuel.
Blackburn filed Dr. Matthew Vuskovich who interpreted an X-Ray and classified the film as quality 1, and interpreted it as 2/1 for CWP. Blackburn filed Dr. Ayesha Sikder. Pulmonary function tests revealed an FEV1 of 55% and FVC 60%, indicating moderate obstructive and restrictive lung disease, non-reversible. She opined the restrictive lung disease is due to CWP. Kentucky Fuel filed the X-Ray report of Dr. Thomas Jarboe. He classified the film as quality 2, and interpreted it as 0/0, or negative for CWP. The Commissioner scheduled Blackburn at UL. There, Dr. Rosenblum interpreted an x-ray and concluded there was no evidence of CWP. Pulmonary function studies yielded a pre-bronchodilator FVC function of 87% of predicted value and a FEV1 of 92% of predicted value, and a post-bronchodilator FVC of 89% of predicted value and an FEV1 of 96% of predicted value. Any impairment was not due to coal dust.
Procedural History: Blackburn appeals from the order dismissing his CWP claim against Kentucky Fuel, arguing the evidence compels a finding he contracted occupational CWP due to his exposure to coal dust.
Issues: Was the ALJ correct in relying on the opinion of the university evaluator in this CWP case?
Holding: Yes
Reasoning: KRS 342.315(2) generally requires presumptive weight be afforded the clinical findings and opinions of the university evaluator. An ALJ has the discretion to reject such testimony where it is determined the presumption has been overcome by other evidence and the reasons for doing so are expressly stated within the body of the opinion. Whether a party overcomes the presumption established pursuant to KRS 342.315(2) is not an issue of law, but rather a question of fact at all times subject to the ALJ’s discretion as fact finder to choose from the evidence.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Texas Roadhouse v. Patty Ann Neal; WCB No. 201501858; Stivers; Entered 2/3/2017
Facts: Neal alleged a work-related cervical injury occurred on 8/18/2014 when containers stacked overhead fell on her. After undergoing an MRI and CAT Scan, she was referred to Dr. James Bean, a neurosurgeon on 3/3/2015, and an anterior surgical discectomy and fusion, at C4-5, was performed on 4/10/2015. The surgery relieved most of the pain in her neck and arms and numbness in her fingers and hands.
Neal relied upon Dr. Bean while Texas relied on Dr. Henry Tutt.
The ALJ relied on Dr. Bean and used his 25%, and enhanced his benefits by the 3, finding that Neal lacked the capacity to perform the job he was performing at the time of the injury based on the medical opinion of Dr. Bean.
Procedural History: Texas seeks review of an award finding a work-related cervical injury and awarding TTD, PPD, enhanced by 3, and medical benefits. It contests the award of TTD and PPD as not being supported by substantial evidence, and, alternatively, the claim should be remanded for entry of additional facts.
Issues:  Did Texas Roadhouse waive any objection to the admission of Dr. Bean’s Form 107 and the impairment rating assessed therein by him by failing to object to its introduction and by failing to list the rating ‘s failure to conform to the AMA Guides as a contested issue?
Holding: Yes
Reasoning: As required by 803 KAR 25:010 section 13(13), Texas Roadhouse did not identify whether Dr. Bean’s impairment rating was compliant with the AMA Guides as a contested issue.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author:  United Parcel Service v. Caela Helms; No. 2015-CA-001728-WC; Lambert J.; Rendered 1/13/2017; NOT TO BE PUBLISHED
Facts: Only the facts relating to the TTD will be reviewed. Helms injured her leg on1/4/2012. She returned to work at UPS on 8/15/2012, and in September, 2012, she also began work at a second job at Delta Global Services as a driver working the ramp at the airport. She was paid TTD from 1/4/2012 thru 8/12/2012. The ALJ awarded her TTD thru 1/4/2013, the date the ALJ indicated she reached MMI. Helms RTW at UPS without restrictions, although it was more difficult for her to do her job, and co-workers assisted her. She was earning AWW equal to or greater, and not taking any medication.
Procedural History: This is the second time this case has been to the COA. The case appears somewhat contentious. The COA reversed the decision of the WCB to uphold an award of TTD beyond the time the Plaintiff returned to work.
Issues: The sole issue is whether or not the Plaintiff was entitled to TTD benefits from the time that she returned to work on 8/15/2012 thru 1/4/2013, after she had returned to work at UPS as well as with another employer. This is the date the ALJ found that she reached MMI, based on Dr. McEldowney
Holding: No
Reasoning: There are 2 requirements for TTD: 1) the worker has not reached MMI; and, 2) the worker has not reached a level of improvement that would permit a return to employment.
Helms had returned to her usual and customary work, and in addition had taken a second job with Delta doing the same job she did at UPS. The COA found that the ALJ erred as a matter of law.
Disposition: Opinion Reversing
Court of Appeals Panel: J. Lambert, Taylor, and Thompson
ALJ: Hon. William Rudloff

Case Name, Citation, Author: American Fuji Seal v. James Roberts; WCB No. 201490065; Alvey; Entered 3/10/2017
Facts: Roberts alleges injuries to his neck, right shoulder, right wrist, sternum, back and both knees on March 7, 2014. After treatment at Bardstown Ambulatory Care, Roberts was referred to Dr. Greg Nazar who performed low back surgery in May, 2015. Nazar then referred him to Dr. Rodney Chou for pain management. Roberts admitted to experiencing right hip problems prior to 3/7/2014, but it was different and worse after the accident. He also had treated for a right knee problem in 2012, and had prior right rotator cuff problems. Dr. James Rice evaluated Roberts who noted the history of previous pain in the low back, right hip, and neck. He assigned a combined 20%, attributing 13% to the lumbar, 6% to the cervical, and 3% to the bilateral knees. After reviewing Dr. Mehta’s records, he determined 6% could be pre-existing and active. Dr. Nazar found both the lumbar and the cervical to be work-related. AFS filed Dr. Chou who assessed 10% for the lumbar, not addressing causation. Dr. Brian Sonsin treated prior to the accident for a pinched nerve in the hip, sciatica, knee pain, shoulder pain, and cervical pain. Dr. Mehta, prior to the injury diagnosed bilateral knee degenerative joint disease, right hip pain, and lumbar radiculopathy. Dr. Rick Lyon examined Roberts at AFS’s request. There was no new injury to the lumbar spine, no cervical injury, but did assign 2% to each knee for a combined 4%. The final award, after reconsideration was 13%, with a 3.4 multiplier, for the low back and knees. The cervical was dismissed. The ALJ used Dr. Rice for the knee, dismissed the cervical per Dr. Lyon, found the lumbar work-related per Dr. Nazar, and adopted the 10% for the back from Dr. Chou.
Procedural History: AFS appeals from an award of TTD, PPD, and medical benefits arguing the ALJ misapplied the standard of law for exclusion of preexisting active impairment, and, the decision is not supported by substantial evidence.
Issues: 1) Did the ALJ apply the wrong standard concerning prior active? 2) Was the decision concerning the lumbar spine supported by substantial evidence?
Holding: 1) No 2) Yes
Reasoning: 1) There was no question that Roberts was treated prior to the injury for various issues. Nazar clearly stated the low back was work-related. To succeed in establishing a pre-existing active condition, AFS was required to prove it was both symptomatic and impairment ratable prior to the accident. Dr. Nazar clearly found an acute herniated disc which necessitated surgery. The record was completely devoid of any evidence establishing Roberts’ ability to work was in any way restricted or that he was disabled in any manner prior to the injury. 2) It was argued that Dr. Nazar did not have all of the records available to him to review, and that with an inaccurate or complete history, his testimony could not constitute substantial evidence. The burden was on the employer to prove this failure, and it did not do so. Only Nazar’s records were introduced-no report, and no deposition. The record failed to disclose what he may or may not have considered.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author: Ford Motor Company v. Christopher Curtsinger; No. 2016-CA-001423-WC; Kramer; Rendered 2/17/2017/ TO BE PUBLISHED.
Facts: Curtsinger alleged a work-related injury to his left shoulder on April 27, 2015. He acknowledged a left shoulder and arm injury in 2009 which resulted in 2 surgeries. He did not file claim for his 2009 injuries, and had RTW without restrictions and/or problems.
Curtsinger began to experience a gradual onset of new and permanent work-related injury to his left arm and shoulder on 5/8/2014. He argued that it became occupationally  disabling on 4/27/2015, the date he was provided with work restrictions, and that he attained MMI on 10/30/2015, the date Dr. Barefoot assigned him a 13% WPI. He thus sought medical, TTD, and PPD.
The ALJ relied upon the reports and records of Dr. Rinnert and Dr. Grossfeld in finding the problems were related to 2009, and not 2014.
The ALJ dismissed the claim as time barred, relating everything to the events of 2009, a claim that was never filed.
The WCB determined the ALJ did not err in finding Curtsinger had no entitlement to TTD or PPD, but determined the ALJ may have committed error in finding Curtsinger had no entitlement to some form of medical benefits.
Procedural History: Ford appeals a decision of the WCB vacating in part, a decision of the ALJ which dismissed a claim for income and medical benefits asserted by Curtsinger, and remanded for a determination of whether Curtsinger was entitled to an award of benefits due to an exacerbation of a pre-existing injury.
Issues: Did the WCB correctly find that the ALJ had failed to make a finding as to whether or not that Curtsinger was entitled to medical benefits for only a temporary injury that resulted in no impairment after he had dismissed the claim for permanent injury?
Holding: Yes
Reasoning: The ALJ did not dispose of any claim alleging that Curtsinger was entitled to medical benefits for only a temporary injury that had resulted in no impairment rating.
The COA goes on to reiterate: “… a worker with a work-related exacerbation of a pre-existing condition sustains a new and separate “injury” within the meaning of KRS 342.020 (1) , and is thus entitled to medical benefits, per KRS 342.020 (1), at least until the date he or she returns to his or her pre-exacerbation, baseline state of health.”
Disposition: Affirmed
Court of Appeals Panel: Kramer, Acree, and Stumbo
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: Jackson County RECC v. David Lear; WCB No. 197953429; Alvey; Entered 3/10/2017
Facts: Lear’s claim was based on a 1979 work injury based on a 10% impairment, the specific injuries not being outlined. The Form 101 had alleged, inter alia, “a puncture in the low back…a low back sprain/strain.” In 2005 Jackson had filed a MTR to contest treatment of Lear’s mid-back, L4-5, and psychological conditions. The ALJ found L5-S1 compensable, but dismissed L4-5.
This current medical dispute was filed to challenge a proposed L3-4 fusion, and removal of hardware at L4-5 and L5-S1. Jackson County filed Dr. Henry Tutt, who found that while the L3-4 surgery might be helpful, it was not work-related. Neither was the proposed removal of the hardware considered work-related. Dr. El-Naggar, the treating physician, employed Sarah Todd, a PA, whose office note indicated a note finding “adjacent” level disc disease at L3-4 with a broad based bulge. There was no indication of Dr. El-Naggar’s opinion. Further, the evidence showed that on 9/16/ 2005, ALJ Manno determined that a L4-5 herniation was not causally related to the 1979 injury, however, the ALJ did not acknowledge this in her decision.
The ALJ relied on the opinion of Dr. El-Naggar as being persuasive, and dismissed Dr. Tutt’s as being based on the premise that the original surgery should not have occurred.
Procedural History: Jackson appeals from the decision resolving a medical dispute in favor of Lear, arguing an unwarranted exercise of discretion, and that the ALJ failed to acknowledge or address a previous decision rendered by ALJ Manno.
Issues: Did the ALJ have a correct understanding of the evidence submitted during the litigation, and based upon correct procedural history?
Holding: No
Reasoning: The ALJ did not consider ALJ Manno’s decision of 2005 finding treatment for Lear’s L4-5 condition to be not work-related. Likewise, she failed to correct her finding that said Dr. El-Naggar’s opinion was actually that of Ms. Todd, the PA, despite being requested to do so in the petition for reconsideration. Res judicata applies here even though it has limited effect in workers’ compensation cases. The issue of work-relatedness was previously determined by ALJ Manno, and affirmed by the WCB. The determination must be based on accurate facts and the appropriate history.
Disposition: Vacating and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Laurel Creek Health care Center v. Ailene Fryman; WCB No. 201564134; Stivers; Entered 3/3/2017
Facts: Fryman alleged an October 19, 2015 injury to her low back and bladder, while lifting a patient.
Fryman introduced a Form 107 from Dr. Arthur Hughes who assessed a 10% impairment rating for pelvic organ prolapse and urinary incontinence and a 3% for the low back pain, resulting in 13%. Laurel Creek introduced Dr. Ellen Ballard who assessed a 5% for the lumbar and there was no causal relation between the work incident and Fryman’s gynecological condition.
The ALJ relied on Dr. Ballard and determined the uterine prolapse and hysterectomy were not the result of the work injury, and adopted the 5% for the back. The ALJ noted that Dr. Hughes chose to assess the low back using the pain model rather than the DRE model for the spine. Relying on the reports of Drs. Hughes and Ballard, as well as Fryman’s testimony, the ALJ enhanced the award by use of the 3 multiplier.
TTD benefits were awarded from October 21, 2015 through March 3, 2016.
On reconsideration, Laurel Creek did not request additional findings of fact on either issue but requested the ALJ reconsider her findings and deny TTD benefits and enhanced PPD benefits.
Procedural History: Laurel Creek appeals an award of TTD, PPD (Enhanced), and medicals benefits.
Issues: Was there substantial evidence to support the findings of the ALJ concerning TTD and the enhancement of PPD?
Holding: Yes
Reasoning: The significance of this case wasn’t the actual evidence but the fact that the employer did not file a petition for reconsideration that sought additional findings of fact regarding the TTD and PPD, but simply reargued the case. That being the case, the only issue before the WCB was whether the decision was supported by substantial evidence. It could no longer argue insufficient findings. N.B. If you fail to file a petition for reconsideration challenging the facts or that the ALJ decision failed to consider all the facts, or was otherwise insufficient in his or her findings, you have now accepted the facts and your only argument is substantial evidence.
Disposition: Affirmed
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author:  Demetria Ruedel v. Ford Motor Co.; WCB No. 201573861; Rechter; Entered 3/3/2017.
Facts: Ruedel was an electrician who injured her knee on 7/2/2015. Dr. Frank Bonnarens performed surgery on 8/12/2015, and thereafter ordered PT. Bonnarens placed Ruedel on light duty from 7/3/2015 thru 8/11/2015, and following surgery, from 8/29/2105 thru 12/12/2015. During this time she reported to the office, however, sat all day, and not given any tasks to perform. During these periods she was paid her regular wages, but not offered overtime, which would be less than what she earned before, but more than she would get under workers compensation. She testified, unrefuted, that she would not have been paid if she did not report for work every day, and, instead, stayed home.
The ALJ called it a close call, denied TTD, and stated the employer should not be penalized for making work available. He did not believe she was coerced to report to work.
The ALJ acknowledged that Ruedel was performing no work during her periods of light duty, and the work was “made-up work” that did not qualify as her “customary employment.”
Procedural History: Ruedel appeals from the award which denied her request for TTD benefits during a period she was working light duty.
Issues: Did the ALJ identify sufficient evidence to support his decision in light of Trane v. Tipton?
Holding: No
Reasoning: Ford did not make work available within Ruedel’s restrictions. She reported to work with no tasks to be performed. Ford presented no proof to rebut Ruedel’s description of her work. Further, the ALJ failed to identify the facts on which he based his conclusions that Ruedel was not coerced into coming in to work, when her testimony was unrefuted.
The WCB must have substantial evidence identified in order to permit meaningful review.
Disposition: Vacating and Remanding in Part
ALJ: Hon. Roland Case

Case Name, Citation, Author: Stratosphere Quality LLC v. Shannon R. Hoskins; WCB No. 201601282; Alvey; Entered 3/10/2017
Facts: This is a case of have you ever read the rules on appeal.
The ALJ decision noted that it was interlocutory and not final and appealable. It was labeled “Interlocutory Order”, and placed the parties on a proof schedule. Nonetheless, Stratosphere appealed.
Procedural History: Stratosphere appeals an Interlocutory Opinion and Order solely ruling on the issue of whether Kentucky has jurisdiction of this claim.
Issues: Is an Interlocutory Order appealable?
Holding: No
Reasoning: An order of an ALJ is appealable only if: 1) it terminates the action itself; 2) acts to decide all matters litigated by the parties; and, 3) operates to determine all the rights of the parties so as to divest the ALJ of authority.
Disposition: Dismissed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: Christopher Wayne Turner v. Cumberland River Coal; WCB No.  2015 01853; Alvey; Entered 3/10/2017
Facts: This is an extraterritorial case. No medicals were covered.
Turner was hired in 2009. Cumberland had mining operations in Kentucky and Virginia which were geographically linked, including a belt corridor from Kentucky to Virginia. Turner originally worked in Kentucky until February, 2012 when he bid on a job in Virginia. He lived in Kentucky, and paid Kentucky taxes, but only returned occasionally for work to remove parts and return them to Virginia. He did not bid on any Kentucky jobs because he did not qualify for them. He last worked on May 2, 2014, when working at the Virginia mine. Turner filed three other claims for WC in Virginia, but none for cumulative trauma.
Jurisdiction was originally stipulated however, Turner filed a motion to bifurcate on the issue of extraterritorial coverage just before a scheduled hearing.
The ALJ found that Turner’s employment was principally localized in Virginia.
Procedural History: Turner appeals from an Opinion and Order dismissing his claim for cumulative trauma while working for Cumberland because the ALJ found Kentucky did not have extraterritorial jurisdiction during the time he worked in Virginia pursuant to KRS 342.670.
Issues: Did Kentucky have extraterritorial jurisdiction pursuant to KRS 342.670?
Holding: No
Reasoning: The ALJ concluded that Turner regularly worked in Cumberland’s Virginia mine pursuant to KRS 342.670 (5) (d) 1 since he worked there exclusively from 2/2012 thru 5/2/14. He was eligible to apply for transfer anytime, but did not. As of May 5, 2014, his date of last exposure, he was working daily in Virginia.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author: United Parcel Service Inc. v. Mary Thompson; WCB No. 200586164; Rechter; Entered 3/3/2017.
Facts: This one falls into the “what were they thinking” category.
Thompson had an injury to her neck and right shoulder for which she retained her right to medicals. UPS filed a MTR challenging the compensability of various treatments recommended by Dr. Jason Glenn Lee. 
This appeal only concerns the compensability of a compound cream recommended by Dr. Lee. Dr. Lee submitted a letter and office notes explaining that Thompson was previously taking oral pain medication but was able to reduce her regimen after starting targeted facet injections and topical treatment with a compound cream. This treatment significantly reduced her secondary myofascial pain, and reduced her need to take morphine. His treatment notes document pain reduction with fewer adverse side effects than oral medication.
Dr. Terry Troutt conducted a utilization review and recommended the injections be denied, and stated the compound creams are largely experimental and there is no research documenting their efficacy. The combination of drugs are not supported by guideline criteria for topical use.
The ALJ explained that Dr. Lee’s treatment notes were particularly persuasive because they documented the outcome after use. UPS continues to argue that the compound cream is experimental treatment and cannot be considered reasonable and necessary.
Procedural History: UPS appeals from an ALJ order in a medical dispute that found a compound cream was a reasonable and necessary medical expense for the cure and relief of Thompson’s neck and right shoulder injury, arguing it was not based upon substantial evidence.
Issues: Was the use of compound creams for pain, while reducing opioid use, considered experimental, reasonable and necessary?
Holding: Yes
Reasoning: This was in the area of the ALJ’s discretion. There was no testimony that compound creams are considered unproductive or outside the type of treatment generally accepted by the medical profession as reasonable. There is no Kentucky case law indicating a treatment is non-compensable due solely to the lack of research concerning its effectiveness. Note that Dr. Lee’s treatment notes were extremely persuasive and UPS provided only Utilization Review.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author: Doyle Whitaker v. James River Coal Co, Healthsmart Cas Claims Solutions, Ky. Coal Employers’ Self-Insurance Fund; WCB No. 200997597; Rechter; Entered 3/3/2017
Facts: Whitaker was previously found to be totally disabled as a result of injuries, and his award was increased pursuant to KRS 342.165 upon the determination that the employer had failed to comply with several safety regulations. James River was self-insured, and paid bi-weekly until 2014, making its final payment on 12/31/2104, filing for bankruptcy. The claim was then referred to the Self-Insurance Fund’s Third Party Administrator, Healthsmart.
The Fund filed a MTR, citing KRS 342.910(2) arguing it was not responsible or the payment of any penalties, including those imposed pursuant to KRS 342.165. The ALJ found the Fund not responsible.
Whitaker argued the MTR was untimely, and the Fund lacks the legal right to reopen the claim because it was not a party to the original claim, and, lastly, that the enhanced benefit provision of KRS 342.165 is not a penalty from which the Fund is exempt.
Procedural History: Whitaker appeals from an order granting a motion of Self -Insurance Guaranty Fund to reopen Whitaker’s claim to relieve it of liability to pay increased benefits pursuant to KRS 342.165 (Safety Violations)
Issues: Were the increased compensation payments awarded pursuant to KRS 342.165 for safety violations a penalty within the meaning of KRS 342.910(2)?
Holding: No
Reasoning: The Fund acknowledged it failed to satisfy any of the criteria to reopen pursuant to KRS 342.125(1) (a), stating the motion was only “technically made” as a means of getting before an ALJ. The Supreme Court of Kentucky has determined that the increased compensation benefits pursuant to KRS 342.165, within the meaning of an insurance carrier’s contract, is not a penalty. AIG/AIU v. South Akers Mining Co., LLC, 192 S.W.3d 687 (Ky. 2006). The term “penalty” is not used in KRS 342.165, so the WCB concluded that KRS 342.165 does not impose a penalty but, rather, operates to increase or decrease a claimant’s compensation. The WCB then referenced its opinion of one month ago, McCoy Elkhorn Coal Corp. v. Sargent (WCB February 17, 2017; Claim No. 2012-80645).
Disposition: Reversing and Remanding
ALJ: Hon. Robert L. Swisher

Case Name, Citation, Author: Commonwealth of Kentucky, Uninsured Employers Fund v. Michael Brock, et al; 2016-SC-000111-WC; Venters; Rendered 2/16/2017; Not To Be Published.
Facts: This is an “up the ladder” case. The parties are: 1.) MPD- a diesel engine repair shop; 2.) Winford Brewer, William Haney, Sr., and Michael Cornwell-the “Partners”, and owners of MPD, and also the owners of 3.) HBC, a company formed for the purpose of investing in real estate, with no employees, who owned 3 tracts of land where Brock’s work-injury occurred; 4.) Brent Owen, who operated an automobile repair shop on HBC’s property, and also the owner of 5.) O & O Builders, a building contractor business, and; 6.) Michael Brock, the injured employee. Owen was looking to open a third business and entered into an agreement with HBC that HBC would arrange for the construction of a new building on the Tract near Owens’ repair business, and that Owen would lease the building for his new business.  Owen would act as general contractor for the construction, and use O & O Builders. Brock suffered grave injuries. Owen and O & O were uninsured. Only MPD, the diesel shop, had employees and insurance. The ALJ identified Owen as the person responsible for payment of Brock’s benefit. UEF argued that pursuant to “up the ladder”, MPD was responsible due to its close ties to HBC, including the commingling of business activities, and its participation in the agreement with Owen for the construction of the  building. The ALJ rejected this argument, reasoning that the statute was not intended to make every entity that contracts with a general construction contractor responsible for the contractor’s actions regardless of the nature of the business that had hired the contractor.
Procedural History: UEF appeals from a decision upholding the ALJ and WCB conclusions that neither More Power Diesel Inc. (MPD), HBC Leasing Company (HBC), nor the owners of these companies individually, were “up the ladder” contractors under KRS 342.610 and KRS 342.700 for the purposes of assigning liability following a work-related injury incurred by Michael Brock.
Issues: As the proponent of assigning up the ladder liability, did the UEF meet its burden to prove the essential elements of it position?
Holding: No
Reasoning: To be adjudged liable, an entity must fit those statutory descriptions of a “contractor”, and for that to occur he must be regularly engaged in the same or similar type of work as the work the subcontractor was hired to perform. A series of factors are taken into consideration including the putative “contractor’s” nature, size, and scope, as well as whether he is equipped with the skilled manpower and tools to handle the task the “subcontractor” was hired to perform. The ALJ undertook this task and made a factual finding that none of the entities to which UEF would assign liability qualify as a contractor. In addition, the record also established that Owen hired Brock to do the gravel work in connection with the project. Entering into a contract with a building contractor does not convert one into a “contractor” for purposes of up the ladder liability.
Disposition: Affirmed
ALJ: Hon. Thomas Polites

Case Name, Citation, Author: Toyota Motor Manufacturing Kentucky, Inc. v. William Mark Wedding; WCB No. 201563848; Stivers; Entered 2/10/2017
Facts: This somewhat lengthy opinion centers around the definitions of physical trauma, physical injury, and psychological injury. Wedding alleged the body part injured was “head and psychological trauma” following an incident that occurred while sitting at the break room table. At the center of the controversy were the different versions of the incident provided by Wedding, ranging from a verbal altercation and getting into Wedding’s face, to a “belly bump”, to being poked in the head three or four times and having his safety glasses bent. There was no immediate lost time from work, but about 3 months later, after experiencing “concentration” problems, he missed about 3 months of work. He came under treatment of Drs. Morrisey and Ghanta for emotional problems. TMMK presented testimony that there was no type of physical contact, however, the ALJ summarily dismissed that as not credible. He found that the physical contact was not sufficient to cause permanent physical injury, however, the contact, within the heated, verbal exchange is enough of a physical contact to support the resulting psychological condition and impairment. TMMK argues that there must be physical trauma in order for there to be a compensable psychological claim. TMMK argued that KRS 342.0011(1) mandates a psychological, psychiatric, or stress-related change in the human organism is not an injury unless it is the direct result of a physical injury.
Procedural History: Toyota appeals the ALJ finding that Wedding sustained a work-related psychological injury and awarded PPD and medical benefits, arguing that the ALJ did not find Wedding suffered physical trauma, and therefore he could not award benefits for a psychological injury, and, the findings do not support a finding of physical trauma as defined by the statute.
Issues: 1) Did substantial evidence support the ALJ’s finding of an injury as defined by KRS 342.0011(1) and the applicable case law? 2) Were the ALJ’s findings of fact sufficient? Did he address all the records in the file?
Holding: 1) Yes 2) Yes
Reasoning: 1) KRS 342.0011(1) mandates a psychological, psychiatric, or stress-related change in the human organism is not an injury unless it is a direct result of a physical injury. KRS 342.0011 does not define physical injury. The Kentucky Supreme Court in Lexington-Fayette Urban County Government v. West, 52 S.W. 3d 564 (Ky. 2001) defined physical injury: “…a “physical injury is an event that involves physical trauma and proximately causes a harmful change in the human organism that is evidenced by objective medical findings. An event that involves physical trauma may be viewed as a “physical injury” without regard to whether the harmful change that directly and proximately results is physical, psychological, psychiatric, or stressrelated. But in instances where the harmful change is psychological, psychiatric, or stress-related, it must directly result from the physically traumatic event.” Pursuant to the definition of injury set forth in West, the physical contact of shoving Wedding’s head was a physical traumatic event that constituted a physical injury as contemplated by the statute, because the event directly and proximately in a harmful change which was psychological and stress-related. West does not require the harmful change resulting from the physical trauma be physical. Rather, the harmful change may just be “psychological, psychiatric, or stress-related. 2) The ALJ noted Wedding’s “accounts of the August 31, 2015 incident as set forth in the record and his deposition and hearing testimony are not entirely consistent”. That sentenced convinced the WCB the ALJ not only considered Wedding’s deposition and hearing testimony but also that he had reviewed all the medical records.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Ronald D. Peck v. Jackson Oaks, Holiday Retirement Corporation; WCB No. 201484242; Alvey; Entered 2/17/2017
Facts: Peck had a lumbar procedure performed in 2007 to remove a bone spur. He worked following the surgery, without restrictions, taking Lortab, and denying pain ever radiated down in his right leg prior to this event. Immediately following this April19, 2014 event Peck began experiencing neck pain radiating into his right arm and hand. He was referred to a surgeon, and cervical surgery took place on August19, 2014. At the hearing Peck stated his low back pain began a couple weeks after the event. When seen by RediCare on occasions immediately following the injury, however, he did not mention the low back. He began treating with Dr. Hill on 6/2/2104, however did not complain of right lower extremity pain until 7/28/2014, three months after the incident. On October 22, 2014 Peck reported his right lower extremity remained unchanged. An MRI was ordered which revealed moderate to severe stenosis at L3-4; facet joint hypertrophy and rightward disc occluding the right intervertebral neural foramen at the L5-S1 level; and facet joint hypertrophy encroaching the right side of thoracic cord at T11-12. Dr. Hill then diagnosed severe spinal stenosis at L3-4 secondary to spondylolisthesis at L3-4. Following failed injections, a left-sided lateral lumbar interbody fusion at L3-4 with placement of fusion space and posterior spinal fusion at L4-5 was performed. Dr. Hill thought the radiculopathy was causally related and assigned 20 to 23% for the lumbar, with pre-existing active of 10 to 13%. Jackson Oaks filed Dr. Thomas O’Brien’s report who opined that Peck did not sustain a lumbar injury. The stenosis was long standing and progressive. Jackson Oaks filed Dr. Travis who opined that any impairment for the lumbar spine would be due to pre-existing, symptomatic disease, unrelated to the April work incident. One of his concerns was the long delay in reporting low back and leg pain. Peck filed Dr. Warren Bilkey who opined a lumbar strain superimposed on lumbar degenerative disc disease and chronic low back pain. The diagnoses, including the surgery, were due to the April injury. Relying on Drs. Travis and O’Brien, the ALJ dismissed the low back claim. 
Procedural History: Peck appeals from the order finding his low back and right leg conditions are unrelated to an April 2014 work incident. The parties entered into a settlement agreement on the date of the hearing regarding Peck’s cervical and right upper extremity conditions only, reserving the low back as an issue of work-relatedness/causation.
Issues: Did the ALJ have an accurate understanding of the evidence in reaching his decision?
Holding: Yes.
Reasoning: The ALJ noted the characterization of low back problems prior to the incident, and the difference he experienced afterwards. He carefully reviewed all of the medical evidence both pre and post injury. He appropriately considered all the medical opinions, and acted within his discretion. The ALJ also correctly noted that causation is a factual issue to be determined within his discretion and medical causation must be proven by medical opinions within a “reasonable medical probability.”
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Ronald Overstreet v. American Printing House for the Blind; WCB No. 201599349 & 201478055; Stivers; Entered 2/17/2017
Facts: The facts herein are not in dispute. Overstreet was born January 29, 1954. He was injured on June 3, 2014 and December 8, 2014. The Parties entered into a Form 110 Agreement which preserved from settlement submitted for decision is the termination date for income benefits. Overstreet argues the termination date of income benefits prescribed by KRS 342.730(4) is unconstitutional.
Procedural History: Overstreet appeals from the order of ALJ Gott ordering Overstreet’s PPD benefits terminate when he reaches normal old-age Social Security retirement age pursuant to KRS 342. 730(4).
Issues: Is KRS 342.730(4) unconstitutional as there is no rational basis for treating two similarly injured individuals disparately on the basis of their age on the date of injury, and, is the statute a violation of due process and equal protection under both the Kentucky and Federal Constitutions?
Holding: WCB has no authority to determine.
Reasoning: The Court has determined in McDowell v. Jackson Energy RECC, 845 S.W. 3d 71 (Ky. 2002) that KRS 342.730 (4) was constitutional, and the statute has not been altered since the decision. As an administrative tribunal, the WCB lacks jurisdiction to determine constitutional issues.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: McCoy Elkhorn Coal Corp-Insolvent Employer Ky Coal Employees Self-Insurance Fund and its TPA Healthsmart v. Jeannie Sargent, as Widow, Personal Representative, Administratrix of the Estate of Farley Sargent, II, et al; WCB No. 201280645; Stivers; Entered 2/17/2017
Facts: This 61 page WCB Opinion (Yes, You read that right) actually boils down to 2 simple and direct issues that the WCB just couldn’t seem to consolidate into a shorter opinion. Farley Sargent was killed in a rock fall while in the employ of McCoy Elkhorn. A Form 110 Settlement Agreement was entered on September 14, 2015, with respect to all matters except the issue of the applicability of KRS 342.165. Then an Opinion and Award was entered on 9/25/2015 wherein the ALJ enhanced compensation by 30% pursuant to KRS 342.165 (1). Without getting into detailed specifics, the safety issue involved a Roof Control, General Safety Precautions, specifically “Rib Control”, which had been approved by MSHA on 8/10/2011, and was in force on the date of death. The ALJ found that the employer failed to comply with MSHA standards, and in fact, had been cited for this failure by MSHA. The reports and citations were filed of record in the case, and relied upon by the ALJ in her decision. McCoy asserted the ALJ erred by finding inferred intent under KRS 342.165 due to the issuance of the MSHA citations without the ALJ citing evidence that, in the ALJ’s own estimation, supports a violation of each of the regulations.
Procedural History: McCoy Elkhorn appeals from an Amended Opinion and Award on Remand wherein the ALJ assessed the 30% enhancement of compensation pursuant to KRS 342.165 (1), and asserts the ALJ erred in assessing the 30% enhancement of compensation against the Ky. Coal Employers Self Insurance Fund and its TPA Healthsmart. 
Issues: 1) Was the 30% enhancement of compensation under KRS 342.165(1) for safety violation proper? 2) Was the enhancement properly assessed against the Ky Coal Self Insurers Guaranty Fund, as it is not as insurer?
Holding: 1) Yes 2) Yes
Reasoning: 1) This revolves primarily around the definition of intent. The worker has the burden to demonstrate the employer intentionally failed to comply with a specific statute or lawful regulation. Intent to violate a regulation can be inferred from an employer’s failure to comply because employers are presumed to know what state and federal regulations require. The ALJ relied upon the MSHS citations as well as the testimony of a section foreman indicating McCoy Elkhorn was in violation of its own Roof Control Plan and these comprised substantial evidence in support of the ALJ’s determination that McCoy violated federal regulations, and therefore KRS 342.165(1). 2) The party responsible for payment of KRS 342.750 compensation pursuant to the Form 110 Settlement Agreement approved on August 9, 2016 is also responsible for enhancement of that compensation pursuant to KRS 342.165(1). The legislature calls this an enhancement, and did not designate the increase or decrease as a penalty or include it in KRS 342.990.
Disposition: Affirming
ALJ: Hon. Jeannie Owen Miller

Case Name, Citation, Author: Archways Florence Inc. #3398 d/b/a McDonalds/AIK v. Frank Mike Battaglia; WCB No. 200476983; Stivers; Entered 3/10/2017
Facts: Greg Little strikes again! (In the same case). This case was already reversed and remanded by the WCB once on essentially the same issues. Again, the ALJ refuses to follow uncontroverted medical evidence in the form of a U/R report of Dr. Jedamski, and instead relied upon the records of the treating physician, who interestingly, did not express any disagreement with Dr. Jadamski’s opinions, despite having the opportunity to do so. 
Procedural History: Archways seeks review of a Medical fee Order, on Remand, resolving the dispute in favor of Battaglia and Dr. Allen Rison which found that Battaglia was entitled to 6 weeks of PT, 6 lumbar injections, and a prescription for Tizanidine.
Issues: Did the ALJ err in ignoring the uncontroverted medical evidence where the issue to be resolved pertained to questions falling solely within the province of medical experts?
Holding: Yes
Reasoning: The ALJ erred in disregarding Dr. Jedamski’s opinions. There was nothing in the report that indicated his opinions were based on a lack of documentation and verification of specific symptoms. The resolution of this medical dispute fell solely within the province of expert medical opinion. The ALJ should have relied on these opinions since they constituted the only substantial evidence in the case. This time the case was remanded with directions to enter an opinion and order adopting the opinions of Dr. Jedamski regarding the proposed treatment. This case revolved around the issue of 6 weeks PT versus 4 weeks, and 6 injections versus 4 injections, and the prescription. While the recommended treatment did not appear to be unreasonable on its face, the issue here was not to allow a precedent to be set by allowing an ALJ to reject uncontroverted medical evidence, obtained by U/R, in a medical dispute. 
Disposition: Reversing and Remanding with Directions
ALJ: Hon. Jane Rice Williams
Def. Atty.: Greg Little

Case Name, Citation, Author: Rosa Perez-Pena v. ABM Janitorial Services; WCB No. 201369896; Rechter; Entered 2/3/2017
Facts: On 8/15/2013 Perez-Pena was mopping a floor when she felt pain in her back and neck, and her legs and hands felt weak. She went to OPS the next day and was referred to Drs. Vallabhuni and Jonathan Hodes. She began treating with Dr. Thomas Altstadt and had cervical surgery on July 23, 2015. At OPS she was diagnosed with thoracic sprain/ strain and given restrictions before a release to full duty. On 8/7/14 she was first seen by Hodes, and when last seen by him on 12/2/2014 was diagnosed with cervical disc displacement and cervical myelopathy. She was first seen at UL Physicians on 10/27/2104 complaining of upper back pain and right arm weakness and tremors. Dr. Altstadt ws part of this group when he performed the surgery. Perez-Pena submitted Dr. Warren Bilkey who performed IMEs on 6/3/15 and on 2/29/16. He opined a work injury with an aggravation of degenerative disease of the cervical spine, spondylotic myelopathy, and cervical disc herniation with radiculopathy and assigned 28%. ABM submitted Dr. Thomas Loeb who performed IMEs on 6/9/15 and3/8/16. He found no evidence of a work injury, and at most she had sustained a transient strain of the cervical and thoracic spine which would have completely resolved within 2 weeks. He assigned 4%, but nothing work-related. At the second IME, Loeb diagnosed long-standing DDD of the cervical spine at C4-5 and failed anterior cervical fusion, which was due to the active preexisting condition. He commented that his exam was only 6 days after Bilkey’s and that he found none of the exam findings of Bilkey. In his opinion, the ALJ noted the first complaints were of the lumbar spine, and that a year had passed before Perez-Pena had cervical complaints. He lamented that it would have been more helpful to have a more definitive statement from the treating doctors.
Procedural History: Perez-Pena appeals from a decision dismissing her claim for alleged neck and back injuries arguing the ALJ erred in dismissing the claim based on causation and in failing to award a period of TTD. 
Issues: 1) Was there too much emphasis placed on causation, mainly the emphasis placed on the lack of treatment after August, 2013? 2) Was Perez-Pena entitled to a period of TTD benefits?
Holding: 1) No 2) No
Reasoning: 1) Dr. Loeb’s statements constituted substantial evidence that the cervical condition was not work-related. The initial records contain no reference to cervical complaints. There was a gap of close to one year without reference to cervical in the medical records. 2) Dr. Loeb had indicated that MMI was reached as of 8/30/2013. Records show she worked 27.52 hours in the 8/31 pay period. Perez-Pena did not offer specific testimony concerning the days she worked prior to her release to RTW on 8/30, and therefore there was no compelling evidence that she missed more than 7 days of work. Since the cervical was found not to be work-related, she was not entitled to TTD following that surgery.
Disposition: Affirming
ALJ: Hon. Chris Davis

Case Name, Citation, Author: Ibrahim Mohammed, Administrator of the Estate of Sayel Mohammed, and Kristyle Ann Martish, Widow v. Maverick Transportation, LLC; WCB No. 201563904; Alvey; Entered 2/10/2017
Facts: Mohammed was an over the road truck driver from Mount Washington, Kentucky, who was offered and accepted employment while he was in Arkansas, and his fatal accident occurred in Indiana. His employment was not localized in Kentucky. Maverick is based in Arkansas. It advertises with numerous national methods. Mohammed was selected as a potential employee, went to Arkansas for orientation and testing, accepted an offer, and signed his contract in Arkansas. He agreed in the contract that his principal state of employment was Arkansas. Work in Kentucky only comprised16.49% of his total work time, and was 4th out of 25 states in that regard. 
Procedural History: This is an appeal of the decision of ALJ Davis dismissing the claims for Kentucky workers’ compensation benefits against Maverick for lack of extraterritorial jurisdiction pursuant to KRS 342.670. Abrahim and Martish argue the employment form signed by Mohammed is unenforceable because it is an adhesion contract.
Issues: Was the ALJ correct in relying on KRS 342.670 (5) (a) in dismissing this claim?
Holding: Yes
Reasoning: This statute clearly applied, and the ALJ was correct in relying on it. He detailed the factual basis. KRS 342.670(1) did not apply as Mohammed did not meet any of the necessary requirements, including that his employment would be required to be principally located in Kentucky. KRS 342.670 (5) (e) clearly acknowledges an agreement, such as the one signed by Mohammed, shall be given effect.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author: Dwight Isaac v. Enterprise Mining Co. LLC; WCB No. 201401458; Rechter; Entered 2/10/2017
Facts: Isaac worked for Enterprise from 2005 thru 7/23/12 when he left for non -work-related health issues. Though released to RTW, he never returned there due to massive layoffs, instead going to work at Pine Branch Mining. Isaac filed a 101 against Enterprise alleging cumulative trauma to neck and back relying on a lumbar MRI dated 6/26/2012. Since he was working at Pine Mountain, that claim was placed in abeyance. He then filed an injury and hearing loss claim against Pine Mountain, alleging cumulative trauma and attaching the report of Dr. Robert Hoskins dated 9/24/2014. That claim was settled, with dates of manifestation for back and cervical problems of “on or about May 30, 2014 or February 6, 2015.” The ALJ determined the manifestation date was September 24, 2014, the date of Hoskins’ report, not 6/26/2012, because there was no indication that anyone told him the conditions were work–related, therefore Pine Mountain was solely responsible. 
Procedural History: Isaac appeals from the decision dismissing his claim for benefits arguing the ALJ erred in determining the date his cumulative trauma injuries manifested.
Issues: Did the Supreme Court ruling in Hale v. CDR Operations Inc., holding that an employer on the date a cumulative trauma manifests is liable for the entirety of the award, not yet decided at the time of the filing of either of Isaac’s petitions, apply here?
Holding: Yes
Reasoning: Judicial decisions are given retroactive application unless the Court specifically so limits. The employer on the date of manifestation is solely liable for the entirety of a claimant’s cumulative trauma.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Ford Motor Company (LAP) v. Shawn Milliron; No. 2016-CA-000935-WC; Stumbo; Rendered 2/17/2017; Not to Be Published
Facts: This case was previously summarized as a WCB case. Nothing has changed. Milliron was originally employed by Ford in Minnesota where he sustained a work-related cervical injury that required a laminectomy and cervical fusion. He was assigned a rating of 23.5%, but not under the AMA Guides. He continued working with Ford, without problems, and, upon the plant closing, transferred to Louisville. On May 7, 2013, he experienced a popping sensation and immediate pain in the neck. Milliron was seen by Dr. Warren Bilkey for an IME, who diagnosed cervical strain superimposed on a prior history of C4-5 decompression and fusion surgery. He assessed a 28% under the Guides, and acknowledged a portion of this was related to the prior condition, not rated under the Guides, and expressed difficulty in determining the actual percentage. He opined the “most reasonably medical common sense method” was to apportion one-third of the impairment (9%) to the 2013 injury. Dr. John Guarnaschelli thought this was soft tissue only, and Dr. Timir Banerjee thought this was a temporary aggravation of a pre-existing active condition, assigned no rating, and stated Bilkey’s report was not sufficient to apportion one-third to the 2013 injury. The WCB affirmed the ALJ and Bilkey’s apportionment. The ALJ also used Dr. Bilkey’s date of MMI, which in fact was the date of his examination, as opposed to Dr. Banerjee’s date of one month previous. The WCB also affirmed this date.
Procedural History: Ford appeals from a WCB Opinion Affirming in Part, Vacating in Part, and Remanding. Ford argues that the WCB erred in its findings on impairment and apportionment, that its decision is not consistent with the AMA Guides, and that the ALJ’s decision is not based on substantial evidence. Ford also argues the WCB erred in affirming the ALJ’s finding that Milliron reached MMI on 12/1/2013.
Issues: 1) Was Dr. Bilkey’s impairment sufficient under the Guides when a previous rating for a prior injury was not done pursuant to the Guides? 2) Was Dr. Bilkey’s finding that Milliron reached MMI as of the date of his IME sufficient to be upheld?
Holding: 1) Yes 2) Yes
Reasoning: 1) The AMA Guides do not provide guidance under these circumstances. The crux of the issue is whether the finding was so unreasonable under the evidence that it must be viewed as erroneous under the law, not whether Dr. Bilkey could have reached a different conclusion. 2) Dr. Bilkey’s finding was supported by substantial evidence. The ALJ is the sole authority to determine the quality, character, and substance of evidence. 
Disposition: Affirmed
Court of Appeals Panel: Combs, Stumbo, and Thompson
ALJ: Hon. Otto Daniel Wolff

Case Name, Citation, Author: Alden Resources LLC v. Alfard King; WCB No.201401657; Rechter; Entered 2/3/2017
Facts: King’s last date of work was March 22, 2013. Several records were tendered but the ALJ relied upon Dr. Chavda’s report to conclude that King was only entitled to RIB benefits, and because of his age he was entitled to elect the alternate income award available pursuant to KRS 342 732(1)(a)7. Alden requested the ALJ to commence any award on May 7, 2014, the date that Dr. Baker diagnosed CWP category 1/2. The ALJ commenced the award on the date of last exposure. 
Procedural History: Alden appeals from an award commencing King’s award of benefits for CWP on the last day of King’s employment as opposed to the date his disability became manifest.
Issues: Was the date of last exposure or the date of the diagnoses the date to
be used to commence RIB benefits?
Holding: Date of last exposure.
Reasoning: The statute does not state when the benefits should commence. The WCB had previously stated, in a case we notified you of, and, summarized a few months ago, that where there is no proof of disability, the award begins on the date of last exposure. The elective award does not require a finding of actual disability. In fact, the 25% is statutorily assigned and not an actual representation of the true impairment. Here, there was no proof of disability and the ALJ correctly commenced benefits on the date of last exposure. For a more detailed account of the WCB’s previous finding, see Kentucky Fuel Corp. v. Senters, Claim No. 2013-01850 (WCB February 1, 2016).
Disposition: Affirming
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Action Pest Control Inc., as Insured by Secura Ins. Co. v. Anthony Romano, and Action Pest Control Inc., as Insured by Meadowbrook Insurance Co.; WCB No. 201479118; Rechter; Entered 2/3/2017
Facts: On 6/3/2013 Romano, a sales rep whose job required him to drive a company car throughout the work day, was involved in an mva and suffered an injury to the right shoulder. He was off work 2 months and released to RTW full duty. Dr. Genovese was the treating doctor and Action was insured by Meadowbrook at the time. After his RTW he continued to complain of some pain and weakness in the right arm, but continued to work full duty. On 11/7/2013 he was involved in a second mva and began having right shoulder and chest pain. Now Action was insured by Secura. After unsuccessful PT, Dr. Mark McGinnis diagnosed a labrum tear and performed surgery in June, 2014. He then assigned 5% as a result of the second injury. Dr. Daniel Woolens originally could not make a determination, however, after reviewing additional records, as well as Romao’s deposition where Romano stated his symptoms had completely resolved before the second accident, Woolens revised his opinion and stated Romano’s current condition and impairment were the direct result of the second accident. Dr. Richard Sheridan evaluated Romano on 3/20/2015, and eventually revised an original opinion and found that Romano suffered no permanent impairment from the first accident and 4% as a result of the second. Dr. Bart Goldman, also, after reviewing additional records and depositions found the problems after the second accident were unrelated to the first accident. Dr. Daniel Emerson stated it was impossible to determine which accident caused the problems. Dr. McGinnis could not be certain between the two, however, reaffirmed his belief that the second accident is the cause of Romano’s current condition if he had no active symptomatology just prior to the second accident. The ALJ concluded the first accident was a temporary injury and relied on Dr. McGinnis to conclude the second accident was “the source of his symptoms” and caused the permanent injury adopted McGinnis’ 5%, determined Romano could not return to pre-injury work, and enhanced his award by the 3 multiplier.
Procedural History: Action, as insured by Secura, appeals the award to Roman for income and medical benefits for an mva that occurred during a period when Secura insured Action. Secura contends that Romano’ injury and resulting impairment was caused by a prior mva which occurred when Action was insured by Meadowbrook. It argues the ALJ employed an incorrect standard in assessing the proof, and the evidence compels a decision in its favor.
Issues: Was Romano’ permanent injury and impairment rating caused by the first or second accident?
Holding: The second injury. 
Reasoning: The arguments presented by Secura were that the doctors changed their minds after reviewing Romano’s deposition, and additional records, and was therefore not reliable were rejected by the ALJ. The ALJ acknowledged all the evidence in her opinion, even though she may not have specifically noted the change in positions. Secura had attacked Romano’s credibility, and the WCB carefully notes Secura “in an argument that toes the lines of propriety, insinuates Romano and Meadowbrook have colluded to defraud Secura.” However, the ALJ was free to determine which proof is more credible.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author: Randy Wayne Woods v. Private Investigations & Counter Intelligence, Inc.; WCB No. 201595828 & 201500770; Rechter; Entered 2/23 2017
Facts: Woods injured his neck and back on 10/10/2014. He immediately felt a sensation in his neck and back. He worked the balance of the week, and then informed his employer he needed to see a doctor. He saw Dr. Abdul Kader Dahhan on 11/17/2014 who diagnosed sprains and strains of both areas. An MRI revealed mild bulges at L4-5 and L5-S1. Woods indicated he had fallen at home due to weakness in the left leg caused by the work accident. This included a fall down a set of ice-covered steps at his home. He was treated at Hazard ARH for acute lumbar strain and large hematoma, left gluteal region. Subsequently he was treated by Dr. James Bean who eventually performed a lumbar discectomy at L4-5 on 7/29/2015. For the following year he continued to complain of pain and numbness in the left leg and foot. The issue before the ALJ was whether the current condition originated from the work injury, the slip and fall at home, or a combination of both. Woods submitted the IME of Dr. Arthur Hughes, whose diagnosis included right and left shoulder pain with limitation of motion, status post lumbar discectomy at L4-5, and, he attributed the complaints and lumbar surgery to the work injury and assigned a 23% rating which was 15% for the 2014 injury and 11% from cumulative trauma to the shoulders. Dr. Bruce Guberman conducted an IME for the Plaintiff and diagnosed posttraumatic strain of the cervical and lumbar spine, herniated discs at L4-5 and L5-S1, and status post lumbar discectomy at L4-5. He attributed Woods’ complaints to the work injury noting his complaints became more severe after the fall at home. He assigned 20%, 13% for the lumbar spine and 8% for the cervical. Reviewing tests, he discerned no significant change between the 2014 and 2015 lumbar MRI studies. Dr. David Muffly did an IME. In his final report he stated the 2015 fall at home made the lumbar disc problem worse and as the reason for the surgery. He assigned 11% to the lumbar: 3% to the 2014 injury, and 8% to the 2015 injury. Dr. Russell Travis performed an IME for the Employer. After comparing films and records, he concluded the slip and fall was the cause of all evils. He found nothing significant from the work injury. He also felt the evidence was clear that Woods slipped and fell on ice, and that he did not fall as a result of his keg giving way. Alleging a psychological component to the injury, Woods was examined by Dr. Piyush Patel who diagnosed major depressive disorder and assigned 15% under the Guides. PICI filed Dr. Timothy Allen who performed an independent psychiatric examination, and diagnosed malingering and adjustment disorder with mixed depression and anxious mood. He assigned 0%. Citing disagreement of the opinions of Drs. Muffly and Guberman, the ALJ relied on Dr. Travis and found no permanent impairment from work related injuries, and, the 2015 was the sole reason for the surgery and back expenses.
Procedural History: Woods appeals from an award of TTD benefits and a limited period of medical benefits but dismissing his claim for permanent income and medical benefits. His arguments concerned the ALJ’s understanding of the evidence and the sufficiency of the proof.
Issues: 1) Was the proof sufficient to support the ALJ’s decision? 2) Was Dr. Travis required to examine Woods for his opinion to be valid? 3) Was the ALJ required to make a finding as to future medical benefits for the psychological condition?
Holding: 1) Yes 2) No 3) Yes
Reasoning: 1) Neither Dr. Travis or Muffly found a permanent impairment to the cervical. Travis found no permanent to the lumbar as a result of the work incident, instead finding the 2015 non-work incident necessitated the surgery and impairment rating. The ALJ was not compelled to find the Plaintiff fell as a result of his leg “giving way”. 2) That fact was inconsequential to this claim. Even if the AMA Guides require an examination, however, the ALJ did not rely on Travis for an impairment rating, only for his diagnosis and his opinion as to causation. KRS 342 requires only that the permanent impairment rating comport with the AMA Guides. 3) Future medicals may be awarded even if there is no finding of an impairment rating, but the patient requires additional treatment. It is not clear from the decision whether he considered the possibility of an award for the psychological condition. Here, Dr. Allen stated Woods should continue on a medication regimen and that regimen is work-related. The matter was remanded for a decision, with no directions.
Disposition: Affirming in part, Vacating in Part, and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Darrell Peace v. Mountainside Coal Co.; WCB No. 201600060 & 201501618; Entered 2/3/2017
Facts: Peace filed his Form 101 alleging on March 13, 2015, he sustained cumulative trauma injuries to his right shoulder and lower back, “performing constant medium to heavy manual labor while working at the mines.” Peace began working in the mining industry in 1982. He worked for Mountainside from 2/23/2015 to March 8, 2015. He stopped work due to “fatigue and pain”, and because of the conditions of his neck and right knee. His low back also played a role in his quitting. Peace submitted Dr. Arthur Hughes who diagnosed lower back pain with possible radiculopathy on the right, and right shoulder limitation of motion, both of which he attributed to work. He assessed 5% for the right shoulder and 5% for lower back pain for a combined 10%. Mountainside relied on Dr. Daniel Primm as well as Dr. Leon Ensalada. The ALJ entered an award for the hearing loss, but relying on Drs. Primm and Ensalada, both of whom indicated they could not identify any objective changes that could be causally related to the Plaintiff’s work activities with Mountainside. Specifically, Primm could find no reference to shoulder problems that could be related to work, and could find no objective finding suggesting a functional impairment for the lumbar spine. Dr. Ensalada thought at best there was a temporal relationship between work and the shoulder and back. It was noted that Peace, prior to working the one week with Mountainside, had not worked in Kentucky since sometime in 2011, and in 2010 and 2011 worked less than a year in Kentucky. Peace contends the ALJ should have addressed his cumulative trauma injuries based on “the course of the entirety of his cumulative years working on the surface mines and being exposed to those traumatic activities resulting in his cumulative trauma injuries.”
Procedural History: Peace seeks review of the Opinion dismissing his injury and hearing loss claims for income and medical benefits. Peace asserts the ALJ’s decision dismissing his claim for work-related right shoulder and lower back injuries was based on an erroneous legal standard not in conformity with the standard set forth in Hale v. CDR Operations, Inc., 474 S. W. 3d 129 (Ky. 2015).
Issues: Was the ALJ decision based on an erroneous standard not in conformity with the Hale case which holds in a cumulative trauma claim the employee is entitled to the same amount of compensation whether he worked for one employer or many.
Holding: No
Reasoning: Any perceived failure by the ALJ to follow the mandates of Hale is harmless error as remand would be pointless. Drs. Ensalada and Primm opined that Peace had not sustained work-related cumulative traumas to his right shoulder and back. The ALJ’s reliance on their opinions, regardless of the evidentiary standard to be applied, mandate dismissal of Peace’s claims as both opined Peace did not sustain work-related cumulative trauma right shoulder and low back injuries.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Brenda Hopkins v. Wal-Mart, Inc; WCB No. 201457916 & 201359054; Rechter; Entered 2/24/2017
Facts: This is the case of the Black Friday Charge of the Light Brigade! The facts are largely uncontested. Hopkins worked in the automotive section of the Nicholasville location where she was required to climb ladders and stoop to stock and straighten shelves, to stock merchandise from the stockroom, and carry items for oil changes and locate tires from inventory. Hopkins sustained an injury to her left shoulder, left arm, neck, and bilateral knees when a customer pushed her to the floor during a Black Friday sale. Hopkins testified she was unable to perform some of her pre-injury job tasks, such as climbing ladders or stooping to restock lower shelves. She no longer locates tires or retrieves oil for customers. However, she remains in the same position and continues her general duties of assisting customers. She has a higher hourly wage rate, but her net income is lower due to lack of overtime hours. While the medical proof is largely uncontested, the ALJ awarded a 10% permanent partial disability. The ALJ adopted the opinion of Dr. Ronald Burgess, the treating physician who opined Hopkins could return to her normal job duties, but restricted her from utilizing ladders. He assigned no other restrictions. The ALJ did not apply the “3” multiplier. As he did not believe the inability to climb ladders would affect her ability to continue in her position. Hopkins challenged the ALJ’s statement that the required analysis is “whether the injury has permanently altered the worker’s ability to earn an income.”
Procedural History: Hopkins appeals from an Award arguing the ALJ erred in refusing to enhance her award of PPD income benefits by the three multiplier.
Issues: Did the ALJ identify the precise analysis required by KRS 342. 730 (1) (c) 1?
Holding: No
Reasoning: The correct inquiry is whether Hopkins retains the physical capacity to return to her pre-injury work. The ALJ referred to the Adams case which does not reflect the correct case law or analysis to be undertaken. The correct analysis is under Trane Commercial Systems v. Tipton, citing Ford Motor Co. v. Forman: “To determine if an injured employee is capable of returning to the type of work performed at the time of the injury, an ALJ must consider whether the employee is capable of performing “the actual jobs that the individual performed”.
Disposition: Vacating and Remanding
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Hopkins Co. Coal LLC v. Dennis Jared Nolen; WCB No. 201297004; Rechter; Entered 2/24/2017
Facts: Nolen filed his claim on 12/3/2013 alleging he sustained a low back injury on January 9, 2012 while loading mining materials. A formal report was filed on 1/17/2012, however, Nolen said he called the employer on 1/10 and told them he hurt his back, and he would not be in to work. There apparently were no follow up questions by the employer about the back. He saw a physician on 6/12/12, but did not relate the work site as the injury site because it would cause his name to go on a “wall of shame” and cost he and his coworkers a safety bonus. An Interlocutory Award, to which no petition for reconsideration was filed, was entered by ALJ Allen, concluded that Nolen did provide notice in a prompt manner.
Procedural History: Hopkins appeals from the 8/7/2015 Interlocutory order of ALJ Allen and the final opinion and award of ALJ Roland Case of 10/14/2016. Hopkins argues the findings of sufficient notice and a workrelated injury are not supported by substantial evidence.
Issues: Was the finding by the ALJ that the delay in giving notice as excusable erroneous as a matter of law and not supported by substantial evidence?
Holding: No
Reasoning: The purpose of the notice requirement is threefold. It is not to create a technical barrier to meritorious claims, and no constructive purpose is served by an overly technical construction of the notice requirement. Violation of a company policy to report an injury by the end of a shift does not automatically render any delay inexcusable. There is no set time limit for what may be considered an excusable delay in giving notice within the meaning of KRS 342.200. There is no indication the delay in giving notice resulted in Nolen not receiving proper treatment or unduly frustrated Hopkins’ ability to investigate. Furthermore, the ALJ considered Nolen’s hesitance in reporting a work-related injury because of the safety bonus.
Disposition: Affirmed
ALJ: Hon. J. Gregory Allen/Hon. Roland Case

Case Name, Citation, Author: Active Care Chiropractic, Inc. v. Katherine Rudd; WCB No. 201481319; Alvey; Entered 2/24/2017
Facts: Rudd was born 6/29/1956, and began work for Active in June, 2004. On June 2, 2014 she slipped in the parking lot injuring her left shoulder. Surgery was performed the next day, and again on 8/27/2014, and a third surgery on 2/2/2015. She was released to regular duty with no restrictions in September, 2015, resumed her pre-injury job duties with same rate of pay until she retired on May 2, 2016. She testified her left shoulder injury did not factor into her decision to retire. Dr. Hunt was her treating physician, who performed the surgeries, and assigned a 22% WPI. Active Care filed Dr. Robert Jacob, who also assessed 22%, and released her to work to her former job. The ALJ relied upon the two ratings of 22%, and in light of the Livingood decision, and the fact that Rudd’s cessation from work was due to her voluntary retirement and not misconduct, the ALJ determined she was entitled to the two multiplier.
Procedural History: Active seeks review of the ALJ award of TTD, PPD benefits increased by the 2 multiplier, and medical benefits for a left upper extremity injury occurring on 6/2/2014. Active argues the ALJ erred in awarding double income benefits after she voluntarily retired since her decision to cease working is unrelated to her work injury and the purpose of the statute is not applicable to this case.
Issues: Was Rudd entitled to the two multiplier when her cessation from work was purely voluntary, and unrelated to her work injury?
Holding: Yes
Reasoning: The Supreme Court ruled in Livingood that KRS 342.730 (1) (c) 2 permits a double income benefit during any period that employment at the same or greater wage ceases “for any reason, with or without cause”, except where the reason is the employee’s conduct is shown to have been an intentional, deliberate action with a reckless disregard of the consequences either to himself or to another.”
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author: River View Coal, LLC v. Angela Whitlock; 2016-SC-000072-WC; Memorandum Opinion of the Court; Not to Be Published; Rendered 2/16/2017
Facts: Whitlock suffered different injuries to her left leg, nose, and low back. She was a “pinner” for River View which required her to work underground lifting and maneuvering heavy items while working in a bent, stooped, or kneeling position. When her benefits sopped she began working part-time at her sister’s restaurant 10-15 hours per week. To pay bills. Her sister paid the bills in lieu of wages. Whitlock filed her treating physicians-Drs. Wallace, Canlas, and Oropilla, and an IME from Dr. Charles Barlow. None of the treating physicians offered any opinions as to permanent disability, ratings, or restrictions. Barlow assigned 6%for the low back injury with restrictions to avoid bending and twisting at the waist, lifting more than 40 pounds, and pushing/pulling more than 60 pounds. River View filed the IME of Dr. Thomas Huhn who assigned no impairment rating and no restrictions for any of her injuries. The ALJ adopted Dr. Barlow’s opinions, as well as Whitlock’s testimony concerning her pain, limitations, and inability to work, and found Whitlock totally disabled. On appeal to the WCB, the WCB found the award of medical benefits was not sufficiently specific, the ALJ awarded TTD for a period of time Whitlock had returned to work, and the ALJ had not addressed the psychological claim, and also affirmed the total disability award. The WCB remanded those issues back for more findings, except for the total award.
Procedural History: An ALJ found Whitlock to be permanently totally disabled. The WCB and COA affirmed the finding of total disability. River View argues the finding is not supported by substantia evidence. Whitlock argues the matter is not final and appealable because the WCB vacated the ALJ award of TTD and medical expense benefits, and remanded for additional findings on these issues and for findings on an alleged psychological claim.
Issues: 1) Was the WCB opinion not final because it vacated and remanded in part the matter to the ALJ for additional findings? 2) Was there sufficient evidence to support the total award?
Holding: 1) No 2) Yes
Reasoning: 1) When the WCM vacates and remands, the WCB opinion is final and appealable. Hampton v, Flav-O-Rich dairies, 489 S.W. 3d 230 (Ky. 2016). Vacating and Remanding either deprives a party of a vested right or authorizes or directs the ALJ to reach a different conclusion. There is no difference when the WCB only partially vacates and remands. 2) The ALJ relied on Dr. Barlow’s opinion and Whitlock’s testimony, and taking into consideration her age, education, work history, restrictions, and selfimposed restrictions. The fact that she was able to do part-time work at her sister’s restaurant does not, as a matter of law, negate her award. The restrictions, in and of themselves, would not have supported the award, however, the ALJ was free to believe self-imposed limitations
Disposition: Affirmed
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author: Sheila Neal v. Hazard ARH; WCB No. 201501756; Stivers; Entered 2/3/2017
Facts: Neal alleges injuries on 2/7/2014 to her back, neck, left and right upper extremities, left and right lower extremities and tailbone when she tripped and fell down steps. Hazard submitted an IME of Dr. Gregory Snider, who opined that Neal had no objective findings and no anatomic change. He assigned 0%, and stated no future medical treatment was necessary or reasonable. The ALJ relied on Snider and noted that the first medical treatment received was 6 months after the injury. The WCB literally ignored the report of Dr. Autry, and did not even refer to it. He had assigned 9%, 3% of which was allotted to pain. It noted that Dr. snider’s report was in line with the records of treating physician Dr. Sharma.
Procedural History: Neal appeals from the decision dismissing her claim for income and future medical benefits and awarded only those medical benefits paid by the employer. Neal argues that the evidence did not support a finding that she only sustained a transient injury.
Issues: Was the Claimant entitled to income and future medical benefits when the ALJ found only a “transient” injury?
Holding: No
Reasoning: The opinion of Dr. Snider was clearly substantial evidence that Neal only sustained transient injuries, and not permanent ones. Where there is evidence that the claimant will not require future medical benefits for the effects of a work-related injury, an award of medical benefits is not required. The ALJ carried out a thorough analysis and ultimately exercised the discretion afforded under applicable law.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author: Commonwealth of Kentucky, Uninsured Employers Fund v. Kara Sidebottom; Whitney Brand Inc; 2016-SC-000249-WC; Venters; Rendered 2/16/2017; TO BE PUBLISHED
Facts: This is a case we visited last year when the COA affirmed the ALJ and WCB. The facts were undisputed. Sidebottom was employed as a waitress earning $2.10 per hour plus tips. After somewhat of a promotion, her pay was increased to $100.00 per week, plus tips. She reported the tips to her employer, but he did not report them to the IRS. Neither did she, even after learning this. The ALJ used her wage records prior to her increase in pay to determine AWW. The UEF argued that Sidebottom should have been treated as a fixed weekly wage employee and since her tips were not reported they could not be considered part of her wages for computing AWW. Further, since no tips were being included in her income, she was bound by the $100.00 per week in determining income, in effect arguing the income being reported to the IRS at the time of the injury is dispositive of the AWW to be used in calculating benefits.
Procedural History: UEF appealed from a COA decision that upheld a WCB decision which determined that the ALJ properly calculated Sidebottom’s AWW, affirming that she was a variable wage employee (salary plus tips) at the time of her injury and her benefits must be calculated according to KRS 342.140(d), rather than KRS 342.140 (1) (a) which applies to claimants who are paid a fixed weekly wage.
Issues: Did the ALJ, and hence the WCB, apply the correct statute to the facts in determining Sidebottom’s AWW?
Holding: Yes
Reasoning: The AWW of an employee must be decided on a case by case basis. The fact that Sidebottom’s tip income was not reported for tax purposes does not alter the reality that she was paid a variable wage rate based on a “wage plus tips” arrangement. Failure to report the income does not change the nature of the worker’s pay or the method to be used for calculating AWW based on the nature of the worker’s pay. Sidebottom is properly deprived of the benefit she would otherwise have gained by applying the potentially higher income, which, BTW, the UEF also benefited from. After properly excluding all unreported earnings, the ALJ correctly utilized Sidebottom’s wage data from the most advantageous quarter of the 52 week period preceding her injury, pursuant to KRS 342.140 (1) (d) and calculated her AWW accordingly.
Disposition: Affirming
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Howell & Howell Contractors Inc. v. Patrick Marshall; WCB No. 201502142; Alvey; Entered 2/3/2017
Facts: Marshall alleges injurie to cervical, thoracic, lumbar and head injuries when he was standing next to a disabled vehicle and another motorist struck his vehicle knocking him unconscious to the ground. He was treated for a concussion and released. Months later he experienced numbness and tingling in the left hand which spread into the left arm, left side of his face, and into the left leg. He experienced up to 15 episodes daily. Marshall was a journeyman painter whose job involved working on ladders, scaffolding, and lifts “at times”. He was referred to Dr. Joseph Seipel, a neurologist who diagnosed sensory seizures and prescribed Keppra, which mostly controls his seizures, but they still occur. When they do occur, he has to stop what he is doing. When he returned to work, he avoided vibratory tools and working at heights, and the employer tried to accommodate his restrictions. When last seen, he was doing well and his seizures had reduced. Marshall reported no problems with job performance. Seipel diagnosed focal sensory seizure disorder secondary to a closed head injury Marshall filed Dr. Blaine Lisner who diagnosed a sensory type seizure caused by the closed head injury, trauma to the head and probably brain, and concussion. He assigned a 6% WPI. He recommended avoid working on raised surfaces and vibratory equipment or tools with repetitive movements because these could activate sensory seizure. Marshall’s general manager testified that his duties had not changed, and, that he was performing his job. Marshall’s superintendent testified that his job duties had not changed, and that he was performing his job. Howell filed Dr. Joseph Zerga who diagnosed sensory seizures following trauma to the right side of the brain, which went away after the prescription for Keppra. He assessed 4% with no additional treatment, but will require Keppra for a lifetime. It would be an acceptable risk to climb a ladder occasionally, and he did not anticipate any problems which would preclude him from doing his job. The ALJ adopted Dr. Lisner’s 6% rating, with no TTD, and enhanced the benefit by 3, primarily because of restrictions working with heights. 
Procedural History: Howell appeals from an award of PPD (enhanced by 3) and medical benefits for a seizure disorder caused by a work accident occurring on 12/30/2013. Howell argues the finding that Marshall lacks the physical capacity to return to the type of work he was performing at the time of the injury is not supported by substantial evidence. 
Issues: Did Marshall retain the ability to perform the type of work performed at the time of injury?
Holding: No
Reasoning: Dr. Lisner restricted Marshall from working on scaffolding, raised surfaces, and using tools requiring repetitive movement such as drills or sandblasting equipment. He was limited in performing certain tasks he worked on prior to the accident. Dr. Zerga assigned lifelong restrictions of working around machinery or heights. The ALJ weighed the evidence and provided a sufficient analysis in support of his determination.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: Ford Motor Company v. Grover Jones; No. 2016-CA-001588-WC; Clayton; Rendered 2/24/2017; Not to Be Published
Facts: Jones’ job at FMC required him to continually step in and out of vehicles using a stool. He complained of right foot problems and was diagnosed with a stress fracture, and surgery was performed on the right. Eventually, he developed left foot problems, which also required surgery. He had 2 additional surgeries to the right foot. Following each surgery he missed work, and would return to work as a “floater”. In order to remain at Ford, he asked his physician to remove all restrictions. He can only stand for 2 hours because of swelling and must sit down, and must stop work to apply hot compresses. From the WCB opinion, it is learned that Dr. Barefoot assigned 4% for the right and 0% for the left, but found both work-related. Dr. Ron Fadel said right foot was not work-related, and Dr. Andrew Degruccio said neither was workrelated. The ALJ awarded medical benefits, finding work-related injuries to both feet, TTD benefits, and found a 4% impairment to the right foot, enhanced by the “3”.
Procedural History: Ford petitions for review of a WCB decision affirming in part and reversing in part and remanding in part an ALJ decision granting Jones benefits. Ford argues Jones was not entitled to TTD benefits and he was not entitled to the “3 multiplier” for his PPD. 
Issues: 1) Was there substantial evidence to support the award of TTD benefits. following the three surgeries to Jones’ right foot? 2) Was the ALJ finding that Jones cannot continue earning the same or greater wages in the indefinite future speculative and not supported by the evidence? 
Holding: 1) Yes 2) No
Reasoning: 1) There was in fact sufficient medical evidence to support the TTD, as well as Jones’ own testimony. A doctor’s note to be off work was not entered into the record, however, another physician referred to it, and that was sufficient in one of the periods. “A worker’s testimony may provide adequate support for a finding concerning his inability to work at a particular point in time.” Arnold v. Toyota Motor Mfg., 375 S.W. 3d56 (Ky. 2012) 2) Jones was only working because the doctor removed his restrictions. He continued to struggle throughout the work day. The medical experts also provided some evidence that Jones employment would not be a long-term endeavor. His condition would be potentially exacerbated by the work activity and weight-bearing activity may result in symptoms. It should be noted here that Ford was actually complimented for its efforts to keep Jones working, and that nothing in the opinion should serve to dissuade Ford or Jones, or other similarly-situated parties from acting precisely as these parties did. Ford put itself in the best position possible to avoid the 3 multiplier.
Disposition: Affirmed
Court of Appeals Panel: Clayton, Combs, and Taylor
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: Bardstown Independent Board of Education v. Marlin Robinson; WCB No. 201392891; Alvey; Entered 1/20/2017
Facts: Robinson underwent 2 back surgeries for a low back injury sustained in 2013. Robinson filed the MTR because the carrier refused to continue paying for Vimovo. The carrier argued that this was a combination of medications including Esomeprazole and Naproxen. A nurse case manager contacted Dr. Parrish and inquired if these two drugs could be prescribed individually
because the cost was much less. The treating physician Dr. William Parrish obliged. Dr. Parrish then stated that Robinson’s response to the generic form of Naproxen and Esomeprazole was not good, unlike Robinson’s response to the Vimovo. A patient may be more sensitive to the pioneer drug (Vimovo), or the other drugs may have an interaction with other medications taken. Also,
generics do not equal the amount of pioneer drug in the blood stream. Robinson may absorb the pioneer formulation better than the generic. Dr. David Randolph performed a records review for Bardstown. He did not support the use of the combined medication known as Vimovo, as opposed to the use of separate medications. There were no IMEs performed, nor were type of studies performed or submitted in support of either position. All of the testimony was based on either reports or records. The ALJ found in favor of Robinson and found Dr. Parrish’s testimony
persuasive in that Robinson did not respond as well when taken off the brand name drug, Vimovo.
Procedural History: Bardstown appeals from the MFD which found Robinson’s treatment with Vimovo for residuals of a low back and left leg injury compensable.
Issues: Did the ALJ properly decide the use of the brand name drug Vimovo in favor of the Claimant?
Holding: Yes
Reasoning: Dr. Parrish clearly set forth the treatment with the Vimovo was more effective than that with the separate components and explained the basis for his opinion.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Floyd County Board of Education v. Jennifer Martin; WCB No. 201166927; Alvey; Entered 1/13/2017
Facts: The relevant facts are short and simple. Martin was in a MVA and sustained several injuries, including a concussion and left shoulder injury. The case was originally decided, appealed, and on remand the ALJ was to determine whether or not Martin was entitled to medical benefits for the left shoulder which did not receive an impairment rating. Dr. John Jasko was the treating doctor who treated the shoulder conservatively, including injections, PT, and medications. He last diagnosed shoulder pain in the deltoid insertion and restricted Martin from working overhead, and lifting or carrying over 25 pounds. He was released to return on an as needed basis. He did not issue an opinion on future medicals. Dr. David Muffly, who evaluated Martin at Floyd County’s request, said Martin had a temporary left shoulder strain, with no permanent impairment.
Procedural History: Floyd County appeals from the opinion and order on remand by Hon. Jon Coleman, after reassignment, that Martin was entitled to medical benefits for the left shoulder following this work-related MVA.
Issues: Did the evidence support a finding by the ALJ that Marin was entitled to future medical benefits despite no permanent impairment rating?
Holding: Yes
Reasoning: The ALJ performed an adequate analysis as he was directed by the WCB. He determined that Martin was entitled to future medicals since she continued treating, with complaints. His analysis is supported by Dr. Kasko’s notes. No permanent impairment rating was necessary. The ALJ noted that Martin was continuously diagnosed for shoulder pain by Dr. Jasko, and an
MRI of 4/21/2015 confirmed objective evidence of continuing problems with the left shoulder, the MRI demonstrating anterior capsular stripping with deficiency of the anterior inferior aspect of the cartilaginous labrum attributed to a labral tear. The medical evidence simply established that Martin did indeed sustain a left shoulder injury for which she continued to suffer. Neither physician apparently testified that no future medical treatment was necessary, nor was there any mention that Martin suffered any loss of use of the limb.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Hopkins County Coal, LLC v. William Morse; No. 2015-CA-001405-WC; Lambert, D.: Rendered 1/20/2017; Not To Be Published
Facts: Morse had worked in the coal mines for 40 years. During the preparation for his workers’ compensation claim for the shoulder injury, it was discovered that Morse had also suffered a significant hearing loss. The ALJ then determined that there was not sufficient evidence to support the shoulder claim and denied it. The award is based on Morse’s hearing loss which was attributed to his 40 years of work in the noisy underground mine environment. Audiologist Brittany A. Brose assigned a 21% WPI, and restricted him to wearing protective protection while working in the noisy underground environment. Morse testified that type of protection was both unsafe and impractical. The devices prevented miners from hearing the tell-tale audible
indications of an imminent ceiling collapse, and also hindered or prevented communications between co-workers. On the BRC order, the ALJ had handwritten a note to himself which appeared
to indicate that perhaps the only issue to be decided was the shoulder. The ALJ indicated this was purely a note to himself, and he never intended the shoulder to be the only issue litigated.
Procedural History: Hopkins appealed the decision of the WCB which affirmed the ALJ award of permanent total disability to Morse relating to his hearing loss.
Issues:
1) Did the hand-written note to the ALJ for his own notes, preclude the hearing loss issue from further proceedings?
2) Did the record contain substantial evidence to support the finding of PTD?
Holding:
1) No
2) Yes
Reasoning:
1) The ALJ specifically noted the handwritten note was not intended to be read the way that HCC insists. Further, the issue was in fact contested at the BRC, and was then was treated as contested by HCC when it addressed the issue in its brief to the ALJ. There was also “implied consent” to try the issue. HCC discussed the hearing loss in its brief, and had the opportunity to present a defense to the hearing loss claim.
2) The ALJ made specific findings that he found Brose’s report credible and applied the factors in Ira Watson to assess Morse’s circumstances. The protective equipment was both unsafe and impractical. Morse was 61, 11th grade education, and his skills as a miner do not transfer to another occupation outside mining. There was no indication that the ALJ applied other factors in his decision-making process.
Disposition: Affirmed
Court of Appeals Panel: D. Lambert, Maze, and Vanmeter
ALJ: Hon. Otto Wolff IV

Case Name, Citation, Author: Mountain Water District v. Jeremiah Elswick; WCB No. 200376829 & 200265463; Stivers; Entered 1/20/2017.
Facts: These were 2 low back injuries which were settled for a lump sum of $225,000.00 and $600.00 per month until Elswick attains age 67. Mountain filed a MTR and Medical Dispute challenging the reasonableness/necessity and work-relatedness of Flector patches, Andrederm, and Methylprednisolone. Mountain relied on a physician review report of Dr. Bart Olash who did not find the pain pump to be effective, and did not find Androderm and the methylprednisolone were being used for the work-related pathology. Mountain also filed the Final Utilization Review Decision of Dr. John Rademaker who did not believe the medications were medically necessary or appropriate for the treatment of the injury. Elswick submitted Dr. Gary Reasor, who after first blasting Dr. Olash for not ever having seen or treated Elswick, and then, because he had never dealt with pain management or drug delivery devices, then stated that the testosterone replacement therapy is to correct opioid induced hypotestosteronemia which can be causally related to the use of the pain medication to treat the pain from the work injury. He stated the other medications had not been prescribed for over one year. There were no IMEs performed. The ALJ found the Androderm was necessary at that time to treat work related opioid side effects, relying on the testimony and opinion of the treating physician.
Procedural History: Mountain Water District appeals from the MFD opinion which determined that the medication Androderm was compensable and the contested Flector patches and Methylprednisolone are non-compensable as they had not been prescribed in over a year.
Issues: Did the evidence compel a finding that the Androderm was not reasonable nor necessary?
Holding: No
Reasoning: Dr. Reasor explicitly stated the need for the Androderm to correct opioid induced hypotestosteronemia which can be causally related to the use of pain medication to treat the pain from the work injury. Mountain had the burden of proving the contested medications were neither reasonable nor necessary, and failed to do so.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Road ID Inc. v. Holly Y. Forman; WCB No. 201398925; Stivers; Entered 1/20/2017
Facts: Only the facts related to the contested right shoulder and neck award of medical benefits will be discussed. Forman’s original Form 101 listed the left sided injuries. An amendment was
filed for the right sided injuries. Contested issues all pertained to the right shoulder, including notice. Forman alleges her right shoulder issues began about one month after returning to work following left shoulder surgery due to overcompensation. She claims she told “the workers’ compensation insurance lady” at work, as well as Dr. Grunkmeyer. She also saw Dr. John Larkin during her treatment with Grunkmeyer. Larkin told her that her neck problems were worse than her shoulder problems. In his deposition, Dr. Grunkmeyer refused to speculate about the right
shoulder injury, and believed those conditions occurred after his treatment had ended. Dr. Richard Sheridan concluded after his IME that Forman did not sustain neck and right shoulder injuries.
At issue was the failure of the ALJ to make findings on Dr. Larkin’s original office notes of 1/27, 2014 which essentially found normal activity and findings in both the right shoulder and cervical areas, which were not consistent with the ALJ’s findings concerning the right shoulder and cervical in his opinion. Road says that there was thus no evidence that Forman had any problems with
these areas for the first 2 years following the surgery. The ALJ relied on Dr. Larkin’s later notes in his decision.
Procedural History: Road appeals from an award finding Forman sustained a work-related left shoulder and elbow injury for which she was awarded TTD, PPD, and medicals, as well as work-related right shoulder and neck injuries for which she was awarded medical benefits. Road challenges the finding of right shoulder and neck injuries and the award of medical benefits only.
Issues: Did the ALJ properly assess the original office notes of Dr. Larkin in his findings?
Holding: No
Reasoning: This note was significant as it revealed that Forman voiced no complaints of right shoulder or cervical injuries at the time. The ALJ needs to discuss the significance of this note as it relates to his findings. There is substantial evidence to support the decision otherwise, however, that decision must be reviewed considering the doctor’s office note.
NOTE: The WCB SUA SPONTE addressed and found that the ALJ had failed to award the multiplier of 2 applied for any period of cessation of her employment at such wages with or without cause since Forman had returned to work for greater wages since the injury.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Sidney Coal Company v. Greeley Hurley, Jr.; WCB No. 201476628; Rechter; Entered 1/13/2017
Facts: Hurley sustained injuries on June 16, 2012, when an 80 pound rock fell striking him on the head and left shoulder. He was treated by Dr. Stanly Tao who performed shoulder surgery on 3/29/13 and again on 7/15/14. His final diagnoses were impingement syndrome, SLAP lesion, and rotator tendinitis. Hurley had worked in the mines since 1991, with no other skills. He was a high school graduate with no specialized or vocational training. He was a roof bolter with Sidney. Dr. David Muffly performed an IME for Hurley and diagnosed left shoulder labral tear, biceps tendon tear, and a cervical strain with arousal of degenerative changes. He assigned 5% for the cervical spine and 6% for the left shoulder, combining for 11%, with significant restrictions.
Dr. Robert Walker’s IME for Hurley resulted in 6% for the shoulder, with restrictions, and no return to previous type of work. Dr. Leigh Ann Ford performed a psychological IME for Hurley and diagnosed major depressive disorder and post-traumatic stress disorder, and assigned 6% psychological, and stated these problems were affecting his activities of daily living. Sidney filed the IME report of Dr. Tim Allen who performed a psychiatric evaluation and diagnosed malingering and possible adjustment disorder with anxious mood, and assigned 0% for psychological impairment. Dr. David Jenkinson saw Hurley at Sidney’s request. He opined that the injuries were not significant, he had self-limiting behavior/symptom exaggeration, and opined a RTW without restriction, and 0%. The ALJ accepted Dr. Muffly’s 11% rating and restrictions, as well as Dr. Ford’s 5%, and finding Hurley to be a credible witness, found him permanently totally disabled, as he lacked the skills or experience to find gainful employment that he could perform given his significant restrictions.
Procedural History: Sidney appeals from the award finding Hurley permanently totally disabled, arguing the award of PTD is not supported by substantial evidence.
Issues: Did the evidence support a finding of total disability?
Holding: Yes
Reasoning: Based on the medical evidence and the restrictions, as well as Hurley’s testimony, the ALJ could reasonably conclude that Hurley was not capable of performing work on a regular and sustained basis in a competitive economy. The ALJ found Hurley to be a credible witness. Further, the ALJ sufficiently articulated his findings and conducted the analysis required by the Ira Watson case.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: H&G Construction v. John Mathis; WCB No. 200570825; Rechter; Entered 12/16/2016
Facts: Mathis injured his low back on 8/23/2005 and was awarded benefits based on a 12% impairment on 11/26/2007. Mathis filed a MTR on November 18, 2013 requesting H & G be required to pay for a proposed surgery and requesting TTD until MMI. H & G voluntarily agreed to pay. On 12/17/2013 the ALJ dismissed the MTR as moot. Mathis filed a petition for reconsideration of the order dismissing arguing he wished to preserve his right to seek attorney fees and costs related to the MTR. On 1/8/2014 the ALJ set aside the prior order dismissing, placing the claim in
abeyance. Mathis underwent surgery on 2/12/2014. On 2/19/15, he was placed at MMI and H & G moved to remove from abeyance. It then changed its mind, and petitioned for an order not to remove from abeyance, but only removed from the active docket, and be considered only as it related to medical benefits, and, for the first time, argued that the 11/18/2013 MTR was untimely.
In his response, Mathis requested leave to amend his MTR to seek increased permanent income benefits. That was sustained. Relying on Dr. Strenge’s opinion, the ALJ concluded that the WPI had increased from 12% to 25%, and Mathis was now PTD.
Procedural History: H & G appeals from the award on reopening, arguing the MTR was not filed within the time limitations of KRS 342.125(3).
Issues: Was the MTR timely filed?
Holding: Yes
Reasoning: The original award was rendered 11/26/2007. The MTR was filed 11/18/2013 seeking medicals and TTD. A MTR for determination of medical benefits or to seek TTD benefits is not subject to the four-year time limitation in KRS 342.125(3). The ALJ issued an order on 1/8/2014 for payment of TTD benefits, preserving Mathis’ rights should a disagreement concerning TTD or medicals arise, and placing the claim in abeyance. The fact that Mathis’ motion to seek TTD benefits was filed more than 4 years after the original award does not affect the timeliness of the motion to seek increased indemnity benefits. The order for TTD of 1/8/2014 was sufficient and met the standards under the statute.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: Tracy Russell v. Smithfield Packing Company; WCB No. 201166947; Rechter; Entered 1/27/2017
Facts: Russell’s original claim was for “left shoulder/left upper arm/left arm.” The agreement identified the body part as “left shoulder/upper left extremity” and the diagnosis as “scapular dyskinesis.” Smithfield relied on a records review by Dr. Daniel Woolens who opined that any cervical issues could not be related to the original injury. Tests run originally were negative. The cervical has nothing to do with the scapula. Russell submitted Kimberly Green, APRN, who diagnosed brachial plexus neuropathy, chronic left shoulder pain, muscle spasm, anxiety, and cervicalgia. She recommended a spinal cord stimulator and another cervical MRI. Russell also submitted Dr. Ben Kibler who performed an evaluation and indicated a marked amount of scapular dyskinesis with decompensation. The ALJ found the cervical degeneration was not the result of the shoulder injury.
Procedural History: Russell appeals from a Medical Dispute Opinion and Order finding a cervical MRI and neck treatment were not related to her workrelated injury and therefore non-compensable.
Issues: Did the evidence support the ALJ’s decision?
Holding: Yes
Reasoning: Dr. Woolens unequivocally stated scapular dyskinesis does not cause cervical pathology and concluded there was no causal relationship between the work event and the evaluation for cervical pathology.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Safelite Auto Glass v. John W. Dickerson; WCB No. 201501699; Alvey; Entered 1/13/2017
Facts: Dickerson alleged injuries to low back and right hip when he slipped exiting his work vehicle while meeting a customer at a car wash. He immediately experienced a sharp burning pain, and was eventually referred to Dr. Phillip Tibbs, a neurosurgeon, who recommended surgery. Dickerson had previously experienced some low back and left hip pain. Hundreds of pages of medical records were filed, and Safelite sought and received an order requiring Dickerson to choose which two physicians whose opinions he would rely on. Dickerson chose Drs. Tibbs and Guberman.
Dr. Tibbs performed a neurosurgical consult on 6/25/2015. Following the MRI that he recommended, Dr. Tibbs diagnosed a right sided disc herniation at L4/5, pain radiating down the right thigh was worsening, and recommended surgery. Dr. Guberman performed an IME on 9/15/2015. He assigned a 13% WPI, and determined that Dickerson did not retain the capacity to return to the type of work performed at the time of injury. Dr. Jenkinson performed an IME for the employer on 12/15/2015.He did not find any significant injury which may require future treatment, and did not find any incident from work that could have caused this problem. Nothing was related to work, including the 10% WPI that he assigned. Absent surgery, he was at MMI, and there were no restrictions. Neither party made any attempt to rely on any of the medical records excluded by the ALJ. In his decision, the ALJ summarized the records which he had previously excluded, and determined the employer had failed to show any existence of a prior active disability, and used Dr. Guberman’s 13%, and the restrictions he assigned, and enhanced the award by 3.
Procedural History: Safelite appeals from an award of TTD, PPD (enhanced), and medicals for low back and right hip injuries sustained by the Plaintiff on March 11, 2015 when he slipped while exiting a work vehicle. Safelite argues Dickerson had a pre-existing lumbar spine impairment prior to the injury and the decision was erroneous because the ALJ relied on the opinion of Dr. Bruce Guberman, and that the three multiplier should not have been applied.
Issues:
1) Did the opinions of Drs. Tibbs and Guberman constitute substantial evidence?
2) Did the ALJ err in failing to find that Dickerson failed to follow reasonable medical advice by not having the recommended surgery to the low back?
Holding:
1) Yes
2) No
Reasoning:
1) The ALJ was free to choose the evidence to rely upon. There was nothing in the evidence of record to establish a pre-existing active disability. Safelite would have the WCB review evidence not of record to reach a determination contrary to the ALJ. Neither party deposed or questioned Dr. Guberman about his findings. The decision concerning the use of the three multiplier was well within the province of the ALJ also.
2) This is a special defense which Safelite failed to assert via a Special Answer, so this was not available to them. Further, it was not preserved as an issue at the BRC. Further, Dickerson had testified that he wanted to undergo the surgery. There was no evidence that Safelite approved this surgery, and, importantly, it was Safelite’s doctor who said the surgery would not be work-related.
Disposition: Affirming
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author: Thoroughtruck Inc. v. Ronnie Baker; WCB No. 201590857; Alvey; Entered 1/13/2017
Facts: On 2/21/2015 Baker was driving his tow truck in a snowstorm when his truck was struck by another. He began experiencing low and mid back pain. His employer is trying to work him within restrictions. Accommodations have been made and he gets a helper sometimes. He thinks he can do local hauls, but not long distance ones. Thoroughtruck was trying to secure other work so that it could assign those jobs to Baker. Dr. Joseph Zerga’s report dated 1/4/2016 was filed. He concluded Baker suffered an injury to his lumbar spine resulting in a transient radiculopathy, which had resolved. He assessed 7% and found MMI. He restricted Baker from driving more than 3 hours without rest and stretching, and no lifting over 40
pounds. In a report, Dr. Nemeth found MMI on 6/17/2015, and assessed 0%. Thoroughtruck requests a credit for TTD paid from 12/14/2015 through 1/3/2016, since Baker worked during this time.
Procedural History: Thoroughtruck appeals the decision of the ALJ awarding TTD, PPD (enhanced by the 3), and medical benefits for low and mid back injuries sustained on 2/21/15. Thoroughtruck argues the evidence compels a finding that Baker is not entitled to the 3, and that it is entitled to a credit for TTD paid for a period of “on-call” duty for which Baker also received wages.
Issues:
1) Did the evidence support a finding of the “3” multiplier?
2) Was Thoroughtruck entitled to a credit for TTD paid from12/14/15 thru 1/3/16 since Baker worked during this period of time?
Holding:
1) Yes
2) To Be Determined.
Reasoning:
1) Although Baker had returned to his previous employment, he can no longer drive long hauls, cannot do the rigs, pull the cables or perform heavy lifting. He does not use medication while working. A new employer would find it difficult to accommodate the restrictions in this line of work, or to assign a helper. It was reasonable to conclude that it is unlikely that Baker will be able to
continue to earn same or greater wages for the foreseeable future.
2) The employer was under an order to pay these benefits even though Baker had returned to work. The ALJ refused to make additional findings or determinations on this issue in the petition for reconsideration order. The case was remanded for the ALJ to specifically address this issue.
Disposition: Affirming in part, Vacating in Part, and Remanding
ALJ: Hon. Chris Davis

Case Name, Citation, Author: Bernabe D. Aguirre v. National Drywall LLC, R & T Acoustics; WCB No. 201500236; Stivers; Entered 12/16/2017.
Facts: Aguirre alleges injuries in the employ of National Drywall, alleging he was on a ladder when it became unstable, causing him to fall. National Drywall was uninsured, so R & T acknowledged “up the ladder” responsibility. R & T introduced the IME of Dr. Richard Sheridan who diagnosed “fracture right ankle, fracture multiple bones right foot, and strain right shoulder.” He stated that there was a presence of cocaine in quantities documented that could have been a significantly contributing factor in his injury. He assigned 7% WPI, with no restrictions. R & T also filed a report of Dr. Saeed Jortani, who reviewed records. After offering several scenarios, he finally opined “with reasonable scientific probability that he was more likely than not an active user of cocaine. What is not clear here is the time of last ingestion as well as the frequency of abuse.” Absent that information, he could only conclude that by ingesting cocaine at some point during the period of 1-24 hours prior to testing Aguirre put himself in a greater risk of falling while being on top of the ladder and the resulting fall and injuries. The ALJ dismissed the claim, finding that the work accident was caused by plaintiff’s voluntary ingestion of cocaine.
Procedural History: Aguirre appeals the ALJ dismissal of his claim after concluding the cause of his work injury was voluntary intoxication.
Issues: Will a finding of intoxication alone operate to bar a claim for benefits?
Holding: No
Reasoning: KRS 342.610(3) mandates there be a finding that the intoxication was the “proximate cause” that “primarily” lead to the accident. Proof of intoxication alone is insufficient. Neither doctor’s opinion supports a finding that Aguirre’s cocaine use was the proximate cause “primarily” leading to the accident. Neither of the opinions meet the standard of proof for an affirmative defense.
Disposition: Vacated and Remanded (Ignore the heading that it was Affirmed!)
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author: Kenneth Ray Ballou v. Cumberland River Coal Co; WCB No. 201501877; Rechter; Entered 1/6/2017.
Facts: Ballou resides in Kentucky. He was hired by Cumberland in 2006 after he applied for a job with Cumberland in Virginia. He worked in Kentucky until November 2010 when he successfully bid on a job in Virginia. He had opportunities to return to a job in Kentucky but did not. He had joined the Union in Kentucky. Referencing KRS 342.670(1), the ALJ concluded Ballou’s employment was principally localized in Virginia because he worked exclusively at the Virginia mine for the last 4 years of his career. He performed no work for Cumberland in Kentucky after 2010.
Procedural History: Ballou appeals from the Opinion dismissing his claim, concluding Kentucky did not have jurisdiction or extraterritorial jurisdiction.
Issues: Was there Kentucky coverage for a miner who worked the last 4 years of his career exclusively in Virginia?
Holding: No
Reasoning: The ALJ concluded Ballou’s employment was principally localized in Virginia. He worked exclusively at the Virginia mine from 2010 to 2014, with no work in Kentucky after 2010.
We must interpret words with their literal meaning unless to do so would lead to an absurd result. “Regular” means “normal, typical, usual, or ordinary.” Ballou did not regularly work in both Kentucky and Virginia.
Disposition: Affirming
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: Lakitea Gordon v. Wild Horse Saloon; WCB No. 201500924; Alvey; Entered 1/13/2017.
Facts: Gordon was a dancer for Wild Horse Saloon when she was struck in the head by a flying stiletto when she happened to walk into an altercation with 2 of her comrade entertainers, sustaining a 3 inch laceration to her forehead, abruptly ending her shot at a lucrative modeling contract. There was no contract of employment. She paid a “door fee” to dance at the
club. She kept her tips, and split her drink fees. She kept her lap dance fees, and, and, most assuredly, was not allowed to engage in solicitation or sexual acts with customers. Dancers could work when they wanted, no taxes were withheld, no uniforms or props. The ALJ found that Gordon was an independent contractor and dismissed the case.
Procedural History: Gordon appeals the decision of the ALJ finding her an independent contractor while working as a dancer when she was struck in the head by a stiletto shoe as she walked into a bathroom/dressing room during an altercation between other entertainers or dancers.
Issues: Was the “entertainer/dance” at the adult night club an independent contractor or employee?
Holding: Independent contractor
Reasoning: The ALJ went into great detail in reviewing the factors set forth in Ratliff v. Redmon in arriving at his decision. He also carefully reviewed the guides in Chambers v. Wooten’s IGA Foodliner. There was substantial evidence to support his decision. As ALJ Coleman so aptly noted, Gordon was a professional entertainer and salesperson who paid a fee in order to be able to utilize her entertainment and sales skills at the Defendant’s facility.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Steve Kareken v. MH Logistics; WCB No. 200598138; Rechter: entered 1/6/2017
Facts: Kareken sustained a low back injury in 2004 resulting in fusion surgery, and eventually a settlement of his claim in 2008 for an annuity and medical benefits. In 2015 MH filed a MFD contesting the work-relatedness, reasonableness and necessity of treatment with Dr. Htin and prescriptions for Hydrocodone, Gabapentin, Diclofenac and Methocarbamol. It submitted the report of Dr. William Baumgartl who conducted a records review and who opined Hydrocodone was not medically necessary, Gabapentin was not medically reasonable, and submitted a portion of the Official Disability Guidelines concerning chronic pain. MH also submitted the report of Dr. Ellen Ballard following an IME. She felt that Kareken’s treatment is reasonable and necessary, but did not feel the current pain treatment was related to the 2004 injury, but rather to multiple pre-existing back problems. Kareken submitted Dr. Stephen Payne stating prescriptions for Robaxin,
Diclofenac and Gabapentin were clearly related to the work injury. Dr. Richard Holt treated and said Kareken needed medications lifelong. He quit treating because the insurance company “is giving me a hard time.” Dr. Htin provided pain management and it would be “inhumane to deny him the basic pain management and medication he requires to lead a reasonable life.”
The ALJ found treatment with Dr. Htin, and Hydrocodone and Gabapentin not reasonable and necessary for the cure and/or relief.
Procedural History: Kareken appeals from a MFD finding that MH is not responsible for treatment with Dr. Kyan Htin and prescriptions for hydrocodone and Gabapentin. Kareken argues the ALJ applied an incorrect burden of proof and failed to state the evidentiary basis for her findings, and that the decision is not supported by substantial evidence.
Issues:
1) Was an incorrect burden of proof placed on the Plaintiff to establish workrelatedness?
2) Was the opinion of Dr. Baumgartl substantial evidence?
Holding:
1) No
2) Yes
Reasoning:
1) The WCB lamented the fact that a published opinion is necessary on this issue, however, here, the ALJ correctly stated the employer bore the burden of proof regarding the reasonableness and necessity of the contested treatment.
2) Dr. Baumgartl indicated there was not sufficient documentation regarding functional improvement with the use of Hydrocodone and Gabapentin. Further, the incorporated provisions of the Official Disability Guidelines provided a reasonable basis for the ALJ to infer long term use of narcotic medication is not recommended. There was an absence of proper documentation, functional status, side effects etc. in the records.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Michael Plumley v. Kroger, Inc.; No. 2016-CA-001031; Lambert, D.; Rendered 1/13/2017; NOT TO BE PUBLISHED
Facts: Over the course of Plumley’s 25 year employment with Kroger he sustained 4 separate work-related injuries, all to the low back, with several resulting surgeries. The first injury occurred in 1998 with surgery at L4-5, permanent restrictions, and a 10% WPI settlement. The next three injuries were in 2006, 2009, and 2011, all at L3-4, several surgeries, and always remaining under his 1998 restrictions. Claims for these injuries were filed but held in abeyance as his symptoms worsened. Two doctors evaluated Plumley after the fusion surgery: Dr. Frank Burke who assigned a WPI of 34%, and Dr. Greg Snider, who assigned 22%. The ALJ relied on Snider, adopted his 22%, and calculated the award based on three separate and distinct injuries, rather than aggregate them as if they were one injury. Plumley alleges Snider departed from the Guides in three ways: 1) He did not assess Plumley’s three most recent injuries under both the ROM and DRE method; 2) With regards to the failure to assess under both methods, he did not determine which methodology produced the higher impairment rating; 3) Snider’s ROM assessment did not note any spinal neural impairment reflected by the deranged gait, an element of the ROM analysis. Plumley’s appeal did not present to the court the issues of vocational rehab or PTD, but solely challenges the propriety of the ALJ’s reliance on Dr. Snider, and the calculation of the award based on three separate injuries.
Procedural History: Plumley seeks review of a WCB ruling which affirmed in part and reversed in part an award of PPD benefits. Plumley argues that the opinion was not supported by substantial evidence as it related to the WPI adopted by the ALJ, and, as a matter of first impression, he contends that multiple injuries to the same body part should be treated as a single injury for the purpose of calculating the amount of the award.
Issues:
1) Were there instances of disregard from the AMA Guides?
2) Should multiple specific traumatic injuries, separated by a period of years be treated as a single cumulative stress injury for the purposes of determining benefits pursuant to KRS 342.730(b) because they had a cumulative effect on his condition?
Holding:
1) No
2) No
Reasoning:
1) What Plumley characterizes as multiple instances of disregard from the AMA Guides is just as easily characterized as a differing interpretation of the Guides by a medical professional. The methodology simply differed from that employed by Plumley’s experts. According to Section 15.2 a(4) of the Guides where there are multiple injuries to the same spinal region, the more specialized and situational range-of-motion method should be used to combine the several ratings. In Section 15.2, the Guides specify that “In the small number of instances in which the ROM and DRE methods can both be used, evaluate the individual with both methods and award the higher rating.” The “disregard” here did not arise to the level of “disregard” as found in Jones v. Brasch-Berry Contractors, 189 S.W.3d149, 153 (Ky. App. 2006), which contained a conclusion reached by a physician who explicitly disagreed with the Guides and intentionally assigned a rating higher than the ratings directed. 2) The WCB declined to address this argument, deferring to the legislature and the courts to craft a change in the law, noting that “existing case law supports
the notion that as long as injuries are successive, the award of PPD must be separated.” To rule that Plumley’s distinct and specific traumatic injuries somehow amounted to a cumulative trauma injury would be to ignore the delineation between the two types of injury and the very definition of what a cumulative trauma injury is.
Disposition: Affirming
Court of Appeals Panel: Jones, D. Lambert, and Taylor
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Corrections Corporation of America D/B/A Lee Adjustment Center v. James Combs; WCB No. 201359455; Rechter; Entered 1/20/2017.
Facts: On June 28, 2013, Combs was in the act of standing up when he struck the middle of his low back on the corner of a shelf. He did not strike his neck or left arm on the shelf. He self medicated until seen on October 11, 2013 for his low back by Dr. Salem Hanna. He complained only of low back, and indicated he had undergone surgery earlier in the year for his low back. The surgery was the result of a low back injury he sustained while hunting, and was performed on April 15, 2013 by Dr. Robert Owen. He RTW on June 18, 2013. The surgery was a right L4-5 lumbar discectomy and left lumbar foraminotomy. On June 4, 2013, Combs complained of right severe radicular leg pain, and on June 18, some pain in the right posterior iliac region. In October, he complained of arm pain and MRIs revealed a left paracentral disc protrusion resulting in severe stenosis, and left-sided protrusions at C3-4, C4-5, and C6-7. Combs submitted Dr. Jeffrey Uzzle who opined Combs had developed a C5-6 disc herniation, and a lumbar sprain or strain with an aggravation of left lower extremity radiculopathy. He assigned 13% for the lumbar, with 10% preexisting, and 3% to the injury. He assigned 6% for the cervical, related to the injury. CCA filed the report of Dr. Michael Best. He diagnosed abrasion and contusion of the low back with no causal relationship to the complaints. There was no active impairment. The 10% to 13% would be for the pre-existing injury, with no additional for this injury. He assigned 5% for the cervical, but nothing for this injury. No restrictions. Per Best, there was no objective basis for the rating of Dr. Uzzle, and no causal relationship of the lower spine. The original decision of the ALJ awarded 9%, using Dr. Uzzle’s 3% for the lumbar, and 6% for the cervical. On the first appeal, the WCB vacated, and ordered an analysis in accordance with statutory and case law. Specific evidentiary findings were directed as to the lumbar and cervical as to causation, as well as the application of the 3 multiplier. On remand, the ALJ awarded the same benefits as initially, relying on Combs and Dr. Uzzle. This appeal followed.
Procedural History: CCA appeals from an Amended Order on REMAND. On Remand, the ALJ again awarded Combs PD and medical benefits for neck and back injuries as a result of scraping his back on a shelf at work. On appeal, CCA argues there is insufficient evidence to support the finding of a cervical injury, and that the evidence compels a finding of pre-existing condition. CCA also asserts there is insufficient evidence of impairment, and therefore the application of the three multiplier is error.
Issues:
1) Was there an occurrence of a work-related cervical injury?
2) Was the evidence sufficient to support the ALJ’s finding of no pre-existing active lumbar condition?
3) Was the three multiplier correctly applied?
Holding:
1) No
2) No.
3) To Be Determined
Reasoning:
1) Uzzle’s opinion as to causation was based solely on the history Combs provided to him, including that cervical complaints began a few days after the incident. Combs had never described any trauma to the neck or shoulder. It was unclear if Uzzle had reviewed prior medical records which contained no reference to a neck injury. Uzzle provides no explanation of how an injury to the lumbar spine caused a cervical herniation. The circumstances of the cervical injury were unusual, and it was insufficient for the ALJ to merely state he found Dr. Uzzle to be persuasive. On remand there must be an adequate discussion of the proof relating to the cervical injury.
2) The ALJ relied solely on Combs’ release to RTW as finding that Combs’ lumbar condition was asymptomatic. It was also contradictory for him to rely on Uzzle’s 3% WPI when the rating clearly stated that 10% of the 13% was assigned to a pre-existing condition. On remand the ALJ was directed to make more specific findings concerning the pre-existing condition.
3) It was premature for the WCB to make any determination until the proper analysis and additional findings are made as ordered herein.
Disposition: Vacating and Remanding
ALJ: Hon. William Rudloff

Case Name, Citation, Author: Seth R. Dedrick v. Brown Forman Cooperage; WCB No. 201177089; Alvey; Entered 1/27/2017.
Facts: Brown Forman filed contesting the frequency of office visits and medications including Oxycodone and a compound cream prescribed by Dr. Htin. BF did not file a motion to join Htin, but did send him a copy of the motion. The settlement agreement reflects Dedrick injured his right hand and fingers, which required an index finger amputation/repair. Dr. Ellen Ballard’s report noted the surgeries to amputate and repair the fingers by Dr. Huey-Yuan Tien, and the referral to pain management with Dr. Htin, who Dedrick sees every two months. Dr. Ballard did not believe a referral to Htin was warranted as Dedrick was not taking a narcotic prior to seeing Htin, and she recommended Neurontin and possibly Elavil, with annual visits only. The cream was not necessary, as it was reported that Dedrick doesn’t use it anyway. Dr. LaFavore, for BF, opined the compound cream was not medically necessary as its use was not supported by the 2016 edition of the Official Disability Guidelines, which notes compound creams are largely experimental. Dr. Htin had switched Dedrick to Percocet, 10 milligrams, 4 times a day, increased Neurontin to 800 milligrams, 4 times a day, and added Elavil, 25 milligrams. He then prescribed Oxycodone and the topical cream, and wanted to see Dedrick every 8 to 10 weeks because of the opioid medication.
Procedural History: Dedrick appeals from a Medical Dispute Opinion and Order resolving the dispute in favor of Brown Forman Cooperage. The ALJ found non-compensable monthly office visits to Dedrick’s treating physician, Dr. Kyaw J. Htin, as well as prescriptions for a compound cream and Oxycodone. Because the ALJ failed to consider the evidence designated by Dedrick from the
original claim, the decision was vacated.
Issues:
1) Was the Motion to reopen procedurally deficient since it failed to move to join Dr. Htin as a party?
2) Did the ALJ err in failing to summarize or consider the evidence Dedrick designated from the original record in his Response and Objection to the Motion to Reopen?
Holding:
1) No
2) Yes
Reasoning:
1) Dr. Htin received a copy of the motion, and, in fact, participated in a telephonic conference and filed a questionnaire response. When it was noticed that he was not a party, the ALJ, SUA SPONTE, added him as a party, as previously allowed in other cases.
2) Because the ALJ failed to summarize the evidence Dedrick designated from the original claim, it was unclear whether she considered it in reaching her decision. On remand, she must make her decision based on all of the evidence in the record.
Disposition: Vacating and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: James Rose v. Speedway, LLC.; No. 2015-CA-001987-WC & No. 2016-CA-000085-WC; Taylor; Rendered 2/3/2017; Not To Be Published
Facts: Rose was an employee of Speedway, starting in Kentucky in August, 2013. On April 25, 2014, he was transferred to a store in Ohio, and, in May, 2014 to Huntington West Virginia. On May 19, and on May22, 2014 he injured his right shoulder working at the store in Huntington. He was transferred to Louisville in June, 2014. Rose filed his claim in Kentucky, alleging Kentucky jurisdiction pursuant to extraterritorial coverage provisions of KRS 342.670. The ALJ concluded that Rose was “covered” under KRS 342.670. Speedway, without filing a motion for rehearing, filed an appeal to the WCB. The WCB vacated and remanded, concluding the ALJ erred by failing to set forth any findings of fact consistent with KRS 342.670 and by failing to specify the subsection of KRS 342.670 that confers such extraterritorial coverage.
Procedural History: Rose petitioned the COA to review a WCB opinion which vacated and remanded the ALJ decision on jurisdiction. Speedway also filed a cross-petition.
Issues:
1) When Speedway failed to file a petition for reconsideration, did it waive any deficiency in the ALJ’s findings of fact?
2) Should the WCB have simply reversed the ALJ and conclude that no extraterritorial coverage existed?
Holding:
1) No
2) No
Reasoning:
1) The ALJ did not engage in any discussion or analysis of the potential applicability of KRS 342.670(1) (a) or (b). He reached a conclusion unsupported by a citation to any specific testimony in the record. It did not resolve whether Rose was principally localized in West Virginia, or, not principally localized in any state. Because the ALJ did not summarize the evidence relating to extraterritorial coverage and to engage in any fact finding, the failure to file a petition for reconsideration is not legally significant. The failure of the ALJ to support his determination was a question of law, and the decision was not in conformity with KRS Chapter 342.
2) The WCB properly determined that the ALJ must reconsider the issue of extraterritorial coverage under the provisions of KRS 342.670. It was incumbent upon the WCB to remand so the ALJ can make the appropriate conclusions and analysis concerning whether Rose’s employment was principally located in Kentucky or any other state per the extraterritorial provisions of KRS 342.670.
Disposition: Affirmed
Court of Appeals Panel: Acree, Stumbo, and Taylor
ALJ: Hon. William Rudloff

Case Name, Citation, Author: James Sweeney v. Ford Motor Co.; WCB No. 201596780; Alvey; Entered 1/27/2017
Facts: Sweeney filed his claim alleging cumulative trauma to his right hand and wrist due to the repetitive nature of his assembly work at Ford, alleging 7/28/2014 as the date of injury. After PT at FMC, he was referred to Dr. Rodrigo Moreno at Kleinert and Kutz for injections. Surgery was eventually performed on the right middle and ring fingers on 11/27/2014. He missed no work, and was placed on light duty. He was released to unrestricted duty on 4/13/2015. In October, 2015, Dr. Moreno recommended surgery for DeQuervain’s tendonitis on the right wrist. Sweeney filed Dr. Warren Bilkey who diagnosed a work injury occurring on July 28, 2014. He assessed a 12% impairment rating due to loss of grip strength. He thought Sweeney at MMI. In a subsequent note dated 10/12/2015, Bilkey changed his mind about MMI, and the previous rating could not be applied. In a note dated 7/15/2016, he stated he disagreed with Dr. Thomas Gabriel, and no MMI yet. Dr. Gabriel evaluated Sweeney at Ford’s request on 7/20/2015. He noted Sweeney’s wrist problems had resolved, he was at MMI 3 months after surgery, with no residual impairment, and RTW unrestricted, with no anticipated surgery. Subsequently, he assigned 0% and stated DeQuervain’s was not observed by anyone in 2015, and if Sweeney had it, it started later and was not due to the 7/28/2014 injury. Ford also filed Dr. William Burns who stated the DeQuervain’s was not workrelated, and Dr. Kenneth Sabbag who opined Sweeney needed the surgery, but had no opinion on causation. The ALJ awarded Medicals for the right middle, ring, and little fingers, but not for DeQuervain’s. There was no TTD, no PPD, and Dr. Gabriel’s assessment was most credible.
Procedural History: Sweeney appeals from the decision dismissing her claim for cumulative trauma injuries to his right hand and wrists, but awarding medical benefits pursuant to KRS 342.020. The ALJ also denied his claim for DeQuervain’s tendonitis to his right wrist. Sweeney argues the ALJ misinterpreted the medical evidence concerning the DeQuervain’s, as well as when he reached MMI, and in disregarding the 12% rating of Dr. Warren Bilkey.
Issues: Was the reliance on Dr. Gabriel’s opinion substantial evidence?
Holding: Yes
Reasoning: The ALJ was of course free to choose. Sweeney showed no signs of DeQuervain’s when seen by Bilkey and Gabriel in 2015. There was no motion to use another date. The ALJ properly reviewed and considered all the evidence. Dr. Gabriel clearly stated why he assessed 0%. Additionally, after Dr. Bilkey assigned the 12%, he withdrew it, as well as his opinion concerning
MMI. Bilkey never saw Sweeney again after that.
Disposition: Affirmed
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author: FM Sylvan, INC. v. Matthew Gibson, WCB No. 201593772; Alvey; Entered 1/20/2017.
Facts: Gibson, a union pipefitter, stepped into a hole covered by a tarp, injuring his low back and knee. Only the knee is at issue in this appeal, as the low back was dismissed. Following his injury, Gibson attempted to RTW, but both times worked one half days because of his knee. Gibson was driving to Louisville from his home in Mount Sterling, however, testified his knee would lock up on the drive, and while at the job in Louisville, he could not handle the sit down position to which he was assigned. Dr. Peter Urda originally diagnosed Gibson with right knee sprain. Dr. Thomas Huhn stated the right knee MRI demonstrated bone bruising/marrow edema in the patella with a questionable small fracture and moderate patellofemoral chondromalacia. He assigned 0% and did not anticipate further treatment. Sylvan filed Dr. Hunt, who diagnosed right knee patella fracture, recommended PT, and restricted him to seated duty. Hunt said MMI for right knee on
6/22/2015, no restrictions, a 0%, and no further treatment. Gibson filed Dr. Smith who diagnosed right knee pain and fractured patella. He originally used the Sixth Edition of the Guides, assigning 17% for the lumbar and 18% for the knee, with significant restrictions. Smith testified he is a family practice physician, and was board certified from 1989 to 2013. He originally could not explain his ratings, and then acknowledged he may have looked in the wrong place. He then corrected his ratings, and assigned 5% for the knee, this time using the Fifth Edition of the
Guides. Smith also acknowledged that he is restricted from prescribing narcotic medicine by the Board of Medical Licensure. Inter alia, the ALJ awarded TTD between 2/2/2015 and 5/27/2015, and adopted the 5% impairment by Dr. Smith. The ALJ further found Gibson lacked the physical capacity to perform his prior job and found the three
multiplier applicable.
Procedural History: Sylvan appeals from the award of TTD, PPD, increased by the three multiplier, and medical benefits for a work-related right knee injury he sustained on 2/2/2015. Sylvan argues the award of TTD does not comport with applicable case law, the ALJ erred in relying on the rating of Dr. Thomas Smith, and the ALJ should have determined whether Dr. Smith acted within the scope of his restricted medical license in rendering his opinion.
Issues:
1) Was the ALJ’s reliance on Dr. Smith’s 5% for the knee proper?
2) Did the limited license of Dr. Smith affect his ability to give a rating?
Holding:
1) Yes
2) No
Reasoning:
1) It is the ALJ’s function as fact finder to weigh the evidence and select the rating upon which benefits, if any, will be awarded. Determining the weight and character of the medical testimony and drawing reasonable inferences therefrom are matters for the ALJ. Sylvan does not argue that the assessment is not in conformity with the Guides, but rather goes to the weight of the
evidence.
2) This issue was not properly preserved for appeal, however, there was no evidence that Dr. Smith was not a licensed physician.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Ford Motor Company (LAP) v. Eric Turner; No. 2016-CA-001008-WC; Combs; Rendered 1/13/2107; Not to Be Published
Facts: Turner filed a claim alleging that on 9/27/2012 he sustained an injury to both upper extremities as a result of his repetitive job duties. After original treatment at Ford, he was referred to Dr. Tsai. Surgery was performed on 3/8/2013, and again on 3/5/2015, this time a cubital tunnel release, submitted on his private insurance. After the first surgery, Turner was assigned to light duty which included sweeping or putting dots on engines with a marker, receiving his normal wages. He remained on light or medium duty work for several months. Turner also filed DR. Byrd’s IME report. His examination was 12/5/2013, and he did not believe that Turner was at MMI because he had not had a complete
work-up and treatment for “probable ulnar neuropathy at the elbow.” His assessment was: 1) History of pronator teres symptom; 2) History of carpal tunnel syndrome; and: 3) probable ulnar neuropathy at the elbow. In July, 2015, Dr. Byrd assigned 7% WPI for the right upper extremity. His status was post pronator teres syndrome, status post carpal tunnel syndrome with release, and ulnar nerve transposition. Ford filed Dr. Richard Dubou who in October, 2013 diagnosed status post right carpal tunnel, right pronator release. The cubital tunnel syndrome “has
nothing to do with work.” In August, 2015, he assigned 2%, stating the carpal tunnel was work-related, the relationship of the pronator was still being discussed as possible work-related, and the cubital tunnel was not workrelated. The ALJ found the cubital tunnel work-related, and awarded PPD based upon Dr. Byrd’s 7%. He awarded TTD from March 8, 2013 to July 15, 2013, while
Turner was performing the light-duty inspector job, which the ALJ concluded was not sufficiently similar to his pre-work injuries. The WCB affirmed on all counts, citing at length from the Tipton v. Trane case concerning the TTD.
Procedural History: Ford appeals the opinion of the WCB affirming the ALJ, claiming the WCB erred in affirming the following conclusions: 1) Turner’s cubital tunnel injury was work–related; 2) Turner was entitled to TTD benefits while on light duty; and 3) that Turner had a 7% impairment.
Issues:
1) Was the ALJ’s decision concerning cubital tunnel supported by substantial evidence?
2) Was the use of Dr. Byrd’s 7% invalid because it included the impairment for ulnar neuropathy/cubital tunnel?
3)Did the ALJ err in awarding TTD from March 8,2013-July 15, 2013, while Turner was on light duty?
Holding:
1) Yes
2) No
3) No
Reasoning:
1) The ALJ relied upon the opinion of Dr. Byrd who believed that Turner was having problems” associated with an ulnar neuropathy of his right elbow from repetitive work.” Dr. Tsai’s records also supported this. Ford, the COA stated, did not believe that Dr. Byrd’s opinion was supportive of Turner, however, in reviewing Dr. Dubou’s report, the COA notes that Dr. Dubou had stated he
“would disagree with Dr. Byrd that the cubital tunnel is related in any way to (Turner’s) work.” It is the quality and substance of a physician’s testimony, not the use of “magic words.”
2) This is moot in light of #1.
3) The Tipton case was rendered after the ALJ opinion and award. Because the ALJ could not have considered the Tipton factors, the case was remanded for that consideration.
Disposition: Affirming in Part, Reversing in Part, and Remanding
Court of Appeals Panel: Combs, Stumbo, and Thompson
ALJ: Hon. Thomas Polites

Case Name, Citation, Author: Michael Franks v. Lone Mountain Processing; WCB No. 200383334; Stivers; Entered 12/16/2016
Facts: Franks received an award in 2005 for a low back injury based on an 8% WPI with a 3 multiplier. Lone Mountain filed the MFD contesting the use of Hydrocodone and Gabapentin as not being medically necessary and reasonable relying on the review report of Dr. F. Albert Olash who found the hydrocodone related, but not reasonable and necessary, and the Gabapentin neither related nor reasonable and necessary. The affidavit of Dr. Karelis stated that if Franks was denied these medications, his pain may become unbearable and increase to such an extent that he may
be rendered totally disabled. The ALJ believed and relied on Dr. Olash stating that the work injury was only a sprain/strain to the lumbar area. Other changes in the back were progressive
changes concerning arthritis, natural aging, etc. not stemming from the work injury.
Procedural History: Franks appeals the ALJ MFD opinion in favor of Lone Mountain concerning the reasonableness and necessity of Hydrocodone and Gabapentin. Franks asserts the ALJ erred by not relying on the affidavit of his physician, Dr. Thomas Karelis.
Issues: Since Franks did not file a petition for reconsideration, was there substantial evidence to support the ALJ decision?
Holding: Yes
Reasoning: The views of Dr. Karelis were nothing more than conflicting evidence compelling no particular result.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Randal Holbrook v. Fools Gold Energy Corp; WCB No. 201360755; Stivers; Entered 1/6/2017
Facts: Holbrook alleges that he sustained an injury to his neck on June 27, 2013, and, further that he sustained work-related cumulative trauma to his neck, back, knees, wrists, and joints which manifested in October, 2013. Fools Gold filed an IME with Dr. Daniel Primm. He testified the June injury was nothing more than an aggravation of his 2 previous neck injuries which had resulted in surgeries. He did not have a diagnosis causally related to cumulative trauma. There was an exacerbation of a third cervical spine injury in 2013, Holbrook’s work and other physical activities did not produce a harmful change to the human organism. Holbrook had a DRE IV, 25% to 28%, all pre-existing active. Fools Gold produced an IME of Dr. Russell Travis. There was no diagnosis any
way related to cumulative trauma nor any evidence that work caused a harmful change in the human organism. He assigned 27%, all related to the 2 previous injuries and resulting surgeries.
Procedural History: Holbrook appeals from the Opinion and Order dismissing his claim for failure to prove he sustained injuries as defined by KRS 342.0011(1) of the Act. He also asserts the ALJ erred by failing to award future medical benefits, and, that his right to procedural due process and equal protection under the Fourteenth Amendment was violated because he did not receive a transcript of the final hearing.
Issues:
1) Did the ALJ err in not addressing the issue of future medical benefits for the cervical spine?
2) Was Claimant denied due process because he was not provided a copy of the transcript with which to prepare his brief?
Holding:
1) Yes
2) No
Reasoning:
1) Despite testimony concerning exacerbation and aggravation of pre-existing active neck conditions, the ALJ failed to discuss entitlement to medical benefits in his opinion. In the Order on Reconsideration, the request was denied not only using an improper standard, but also with an inaccurate understanding of the record. He had ignored any evidence of aggravation or exacerbation. Further, it is not required that a claimant have a permanent injury to be entitled to medical benefits. He is entitled to benefits “at the time of injury and thereafter during disability.” The statute does not require proof of an impairment rating to obtain future medical benefit, and, the absence of a functional impairment rating does not necessarily preclude such an award. The
decision is vacated for an analysis utilizing the correct legal standard and with a correct understanding of the record. The ALJ was also directed to consider Claimant’s entitlement to TTD since the medical evidence firmly established a temporary cervical injury.
2) Procedural due process in an administrative proceeding requires a hearing, the taking and weighing of evidence, if such is offered, a finding of fact based upon consideration of the evidence, the making of an order supported by substantial evidence, and, where the party’s constitutional rights are involved, a judicial review of the administrative action. The requisites of due process focus upon the appraisal and evaluation of evidence supplied the decision maker.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: James River Coal Service Co. v. Jennings Fields; No. 2016-CA-000643-WC; VanMeter; Rendered 1/13/2017; Not to Be Published
Facts: In 1993 Fields filed a claim for pneumoconiosis while working for Ikerd & Bandy. After testing, Fields entered into a settlement whereby he agreed to resolve his pneumoconiosis claim in exchange for a lump sum RIB payment. Fields filed this claim, and the ALJ determined that Fields would only be entitled to a Retraining Incentive Benefit. Since he was age 60, he was given an
option, pursuant to KRS 342.732(1)(a)7 to elect to receive, in lieu of RIB, a 25% disability rating from the date of last exposure until 65. The problem was the 1994 agreement failed to explicitly set forth what was settled. The 1994 agreement was ambiguous. It was clearly identified as a “compromise” agreement. The settlement recites its basis as a RIB claim, evidence was presented in the 1994 case that Fields had his X-Ray interpreted by 3 separate “B” readers; two interpretations were read as Category 1/0 and one was read as Category 1/2. Fields entered into an agreement where he “agreed to resolve his pneumoconiosis claim in exchange for a lump sum RIB payment.” That agreement went on to also state however, “this amount is inclusive of all attorney fees, rehabilitation, and no medical expenses as this is a claim for simple coal worker’s pneumoconiosis.” The WCB affirmed the ALJ.
Procedural History: James River appeals an award of RIB, affirmed by the WCB.
Issues: Did the ALJ err as a matter of law in failing to give preclusive effect to a 1994 settlement agreement entered into by Jennings Fields and Ikerd & Bandy Coal Company for Fields’ RIB claim as a bar to his current claim against James River?
Holding: Yes
Reasoning: The agreement was ambiguous. The COA applied the law concerning settlements. Since the 1994 settlement agreement explicitly recites its basis as a RIB claim, the evidence at the time indicated no less than a category 1/0 coal worker’s pneumoconiosis, and Fields received a lump sum payment, as then permitted, as an RIB award, the COA concluded that Fields
contracted for and received an RIB award in 1994. Since the statute provides that an employee is entitled to a one time only RIB, the WCB erred in affirming the ALJ.
Disposition: Vacating and Remanding
Court of Appeals Panel: Clayton, Stumbo, and Vanmeter
ALJ: Hon. Roland Case

Case Name, Citation, Author: Kay Trucking v. Tom Miller; No. 2016-CA-000088-WC; Kramer, Rendered 1/13/2017
Facts: Miller and his wife owned Kay Trucking. Miller sustained 3 injuries, and advised his wife about all 3 of them. Miller had prior problems with neck, low back, and shoulders for which he was treated. Dr. Andu Nadar conducted an IME on 6/17/2014. He diagnosed cervical and lumbrosacral strain with non- verifiable radiculopathy, bilateral shoulder strain, and rotator cuff tendonitis. He assessed 5% for cervical, 8% for lumbar, and 10% for bilateral shoulders. He indicated a pre-existing active for neck and back and concluded 30% of the overall rating was attributable to these
conditions. An amended report reflected 6% for the right shoulder and 4% for the left. Dr. David Jenkinson conducted an IME and found no objective evidence of a significant work injury. He assessed 0% for the 3 injuries, and stated Dr. Nadar’s assessment was based solely on subjective complaints of pain. The ALJ relied totally on Dr. Nadar and awarded PTD benefits. The ALJ further found that no statute requires notice be given to the insurer,
only the employer.
Procedural History: Kay Trucking appeals a finding of PTD awarded by the ALJ and affirmed by the WCB. Kay argues the ALJ erroneously based Miller’s award upon an IME of Dr. Andu Nadar, a report it views as less than substantial evidence, and that Miller failed to give timely notice.
Issues:
1) Was the report of Dr. Nadar sufficient for substantial evidence?
2) Was due and timely notice given?
Holding:
1) Yes
2) Yes
Reasoning:
1) Any alleged deficiency in Dr. Nadar’s report due to medical history goes to the weight of evidence. It can be addressed during cross examination. He was provided the information concerning past medical.
2) Miller informed his wife after each incident. Kay’s assertion that the carrier was not told immediately is without merit. There is no requirement in KRS 342 regarding timely notice to the carrier.
Disposition: Affirmed
Court of Appeals Panel: Kramer, Dixon, and Taylor
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author: Kentucky Eye Institute v. Daena Wilds; WCB No. 201584893; Stivers; Entered 1/6/2017
Facts: Wilds alleges that she tripped, fell, and broke her left hip and the neck of the left femur bone while in the employ of Kentucky Eye. She underwent a total left hip arthroplasty performed by Dr. James Ritterbusch thee next day. Dr. Ritterbusch stated that when Wilds heard the popping sound, that is when the fracture occurred that caused the need for the hip replacement. The stress reaction was just a weakening of the medial femoral head. Wilds was on crutches when she walked in the employer’s premises, and her crutch got caught in the strap of a bag. When she saw it was caught, she started hopping trying to right herself when she heard a crack and fell. Wilds was on crutches because of a pre-existing active stress reaction in association with avascular necrosis which had been asymptomatic until approximately 4 days before the injury. An MRI prior to the injury showed bilateral avascular necrosis of the femoral head. During the “hopping” it appears that the left femoral head stress fracture became a displaced fracture. Wilds filed an IME of Dr. James Owen who opined that the injury was the cause of Wilds’ complaints. It was a work-related incident that provoked an otherwise mild distress lesion in association with asymptomatic avascular necrosis. He assigned 15%, with 3% the pre-existing active component.
Kentucky Eye filed Dr. Gregory Gleis who opined that Wilds suffered from a pre-existing actively symptomatic left femoral neck stress fracture prior to the work incident, and the stress fracture then became a displaced fracture, which fracture occurred before Wilds landed on the floor. Gleis assigned 15%, one half of which constituted a pre-existing active condition. Gleis stated that the avascular necrosis was not active at the time of the injury, however, the symptoms were coming from the left femoral neck stress fracture.
Procedural History: Kentucky Eye appeals from an ALJ award of TTD, PPD, and medicals for a work-related left hip injury. Kentucky Eye argues the ALJ erred by finding Wilds sustained her burden of proving an “injury” as defined by the Act.
Issues:
1) Did the medical evidence relied upon by the ALJ regarding causation establish the work event produced an injury as defined by the Act?
2) Did the ALJ set forth sufficient findings of fact and conclusions of law?
Holding:
1) Yes
2) Yes
Reasoning:
1) The ALJ relied on the opinions of Drs. Owen and Ritterbusch. Dr. Owen stated that within reasonable medical probability the fall caused the fracture of the femoral neck. He also opined the femoral head would not have fractured spontaneously “unless she was hopping on it which she does describe and/or if it were severely contused as it would have been with the fall. Either way it is a work-related incident that provoked what was otherwise a mild distress lesion in association with asymptomatic avascular necrosis.” He only prescribed 3% of his 15% to a pre-existing stress reaction. Dr. Ritterbusch opined that within reasonable medical probability the incident caused the fracture of the femoral neck and the need for hip replacement surgery.
2) The Opinion, Award, and Order clearly explains the medical opinions upon which the ALJ relied in determining Wilds met her burden of proof. His discussion of the evidence demonstrated why he found the testimony of Drs. Owen and Ritterbusch compelling on the issue.
Disposition: Affirmed
ALJ: Hon. Douglas Scott

Case Name, Citation, Author: Eddie’s Service Center v. Donna Thomas, Administratrix of the Estate of Eddie Ray Thomas Jr.; 2015-SC-000676-WC; Justice Keller; Rendered 12/15/2016; TO BE PUBLISHED
Facts: Eddie worked for his father’s service center and gas station for 30 years, the last 20 as manager. He also was on call for the towing service part of the business. Eddie died while attempting to tow a truck from a roadside culvert. On 1/20/2010, a representative from EPA advised Eddie that gas tanks were leaking and would be removed the next day. As the tanks were being removed, Eddie became quite upset and inconsolable over the possible loss of his father’s business and his livelihood. That evening he appeared flushed, was pacing and couldn’t eat. He received a call from KSP asking him to tow a car that had gone off the road. Eddie had a history of HBP, with medication, but no history of cardiac diagnosis or treatment. When he arrived, the truck was in a culvert, and the top of the truck was 4 feet below the road. The owner of the truck and Eddie climbed up and down the embankment of the culvert 4 times, and Eddie got under the truck 4 times to position the chains. The work was strenuous as Eddie had to dig his feet into the side of the embankment to get footing. Eddie complained of heartburn, and the owner of the truck then saw him grab his chest, lean against the truck, and collapse. He died at the hospital. Unfortunately, no autopsy was performed. Eddie filed 2 reports from Dr. Handshoe. He reported that “current medical knowledge would suggest that intense physical stress and emotional stress can indeed precipitate a cardiovascular event such as sudden cardiac death in
those individuals with underlying cardiac disease.” In a supplemental report he stated that Eddie had “chest pain followed quickly by sudden death after a prolonged period of very intense physical activity associated with trying to extricate a wrecked vehicle.” These symptoms are “typical for an acute myocardial infarction” which most commonly occurs “when there is a rupture of a preexisting atherosclerotic plaque resulting in formation of a blood clot that completely occludes an artery.” He concluded the physical exertion immediately preceding Mr. Thomas’ symptoms triggered plaque rupture and precipitated his heart attack and sudden death.” The Service Center filed Dr. Hal Roseman. The SC noted that his summary of the events was at odds with the testimony, and the SC pointed out the differences. He opined that Eddie’s symptoms were primarily angina caused by “ischemia of the right coronary artery.” He disagreed with Dr. Handshoe. The activity was not rigorous enough. Any emotional stress was a “chronic issue” and unrelated to the occupation, but part of Eddie’s personality. In summary, Eddie’s death was not the result of an arrhythmia caused by a plaque rupture, decreased blood flow, and subsequent myocardial infarction, rather, ischemia, an underlying coronary artery disease, that caused a decrease in blood flow to the heart, which caused angina, and a fatal arrhythmia. The ALJ relied on Dr. Roseman, and dismissed the claim. The WCB affirmed. The COA reversed finding the ALJ failed to factor Eddie’s mental stress which was “baffling”, there was no evidence to support the finding of pre-existing ischemic heart disease, and that Roseman mischaracterized the testimony regarding the exertion, and the ALJ could not rely on his report.
Procedural History: The ALJ dismissed the claim for benefits, and the WCB affirmed. The COA reversed and remanded to the ALJ with instructions to award benefits. The Supreme Court affirmed.
Issues: Was the burden of proof met in this fatal heart attack case?
Holding: Yes
Reasoning: The SC cited KRS 342.680 concerning the presumption in a fatality case. The evidence of the employer was not substantial and therefore could not rebut the presumption. Further citing Cepero, “When a physician’s opinion is based on a history that is “substantially inaccurate or largely incomplete”, that opinion cannot constitute substantial evidence.” The foundational leg of Dr. Roseman’s opinion is substantially inaccurate and largely incomplete, his report is not substantial evidence. Further Dr. Roseman interpreted KRS 342.0011(1) as excluding any
consideration of stress because Eddie’s stress was not the result of a physical injury. However, the statute excludes compensation for “mental-mental” claims, not for mental-physical” claims. Dr. Roeman’s testimony regarding causation lacks substance because he ignored a key factor that contribute to Eddie’s death.
Disposition: Affirmed
Supreme Court Panel: All Sitting, Minton Dissents
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: Marion Howard v. DDT Trucking; WCB No. 201501559 & 201501558; Rechter; Entered 12/9/2016
Facts: Howard was a truck driver who quit work because he “just couldn’t do it anymore.” He acknowledged a 15 year history of shoulder, neck, and back pain that had developed gradually.
Howard submitted the report of Dr. Stephen Autry who performed an IME and diagnosed cervical radiculitis, rotator cuff tendinosis of the right shoulder, and aggravation of thoracic arthritis. He assigned 13% for the lumbar radiculitis, 5% for cervical radiculopathy, 3% for aggravation of thoracic arthritis, and 8% for right shoulder tendinosis, for a combined 25%. There was no active
impairment prior to the injury. DDT submitted the IME of Dr. Christopher Stephens who diagnosed chronic neck and back pain with stiffness secondary to ankylosing spondylitis. He
found no evidence to support a claim of cumulative trauma injury, and Howard’s symptoms are completely related to ankylosing spondylitis, an inflammatory condition unrelated to occupational exposure. DDT submitted the report of Dr. David Muffly’s IME who noted Howard had been diagnosed with ankylosing spondylitis 20 years ago by a specialist. No cumulative trauma as a result of work. The ankylosing spondylitis produced a 6% for the lumbar spine and a 6% for the cervical spine; 4% for the shoulder. Nothing was related to work-related cumulative trauma. ALJ Bolton did not find Dr. Autry opinion credible in light of the long term history of ankylosing spondylitis. He found those of Drs. Muffly and Stephens more credible.
Procedural History: Howard appeals from the award of medical benefits for an occupational hearing loss, but dismissing his claim for cumulative trauma injuries to the neck, back, and shoulder.
Issues:
1) Were Howard’s symptoms aroused into disabling reality by the work activities?
2) Were the references to a “Mr. Collins” in the opinion, instead of Howard, significant?
Holding:
1) No
2) No
Reasoning:
1) The opinions of Drs. Stephens and Muffly unequivocally stated the symptoms were related to ankylosing spondylitis, an inflammatory condition unrelated to any occupational exposure.
Importantly, Dr. Autry apparently reviewed only recent medical evidence for treatment and, as noted by the ALJ did not address the contribution of the long-standing ankylosing spondylitis.
2) The references were contained in “boilerplate” language. Any reference to “Mr. Collins” is an unfortunate typographical error and the record is clear that the ALJ properly understood and carefully weighed the evidence of Howard’s claim.
Disposition: Affirmed
ALJ: Hon. John B. Coleman; (Original award by Bolton

Case Name, Citation, Author: Jessamine Car Care v. Raymond Bryant; WCB No. 201364322; Stivers; Entered 12/2/2016
Facts: This 51-page (yes, that is 51) Opinion is heavy on reciting testimony of the parties and the ALJ’s award. Bryant alleges he injured his left arm and lower back while working on a
transmission on June 13, 2014. He alleges he told the owner’s husband within 5 minutes, and later that day, the owner. The owner denied receiving any notice, and said it could not have happened on that date because the vehicle had just been brought in on June 12, and she had requested authorization on June 13, and, she was awaiting approval from
the warranty company which she did not get until the 14th. Typically, the vehicle is not broken down before receiving authorization. The owner’s husband recalled a conversation with Bryant, with no mention of injury, and further stated that Bryant did not work on transmissions. Dr. Harry Lockstadt treated Bryant. Through diagnostic testing he determined that Bryant was a viable candidate for S1 fusion surgery which was performed on 8/18/2015. On 2/25/2016 he placed Bryant at MMI and assessed 12% under the Guides. While awaiting surgery, and while the claim was placed in abeyance but Bryant not receiving TTD benefits, the employer arranged for an IME with Dr. Vaughan to take place on June 15, 2015. Bryant refused, and did not attend the IME. No motion was filed under KRS 342.205(3) for sanctions. Also, while Bryant was claiming he was not working and unable to work and entitled to TTD benefits, he was caught and videoed by a private investigator working at a garage several days consecutively. Bryant was not receiving TTD benefits at the time and there was no evidence that he was receiving pay. The ALJ awarded PPD based on the 12%, enhanced by the “2” multiplier, with TTD payable as follows: 10/1/13 thru 8/26/14; 8/12/15 thru 2/23/16.
Procedural History: Jessamine appeals from the ALJ award of PPD, TTD, and medicals. Bryant appeals over the termination date of his TTD benefits. Jessamine sets forth 4 arguments: 1) No injury was sustained; 2) Notice; 3) Application of KRS 342.205(1); and 4) Failure of the ALJ to refer to the Department of Insurance for fraud. Bryant argues: 1) The ALJ improperly terminated his TTD benefits; and 2) The ALJ should have applied the “3” multiplier under Fawbush instead of the “2”.
Issues:
1) Did the ALJ err in finding that an event and injury had occurred when the employer produced records which would indicate it could not have occurred on that date?
2) Was timely notice given?
3.) Did the ALJ err in failing to apply any sanctions as set forth in KRS 342.205 because of the failure of Bryant to appear for an IME with Dr. Vaughan?
4) Did the ALJ err in not referring the claim to the Kentucky Department of Insurance for a fraud investigation?
5) Did the ALJ err in terminating TTD benefits the date of the video instead of the date Dr. Lockstadt placed him at MMI?
6) Did the ALJ correctly apply the analysis as required by Fawbush?
Holding:
1) No
2) Yes
3) No
4) No
5) No
6) Yes
Reasoning:
1) ALJ Rudloff in an Interlocutory Opinion determined Bryant’s testimony regarding the events of 6/13/13, to be credible and chose to rely on Bryant’s testimony over the testimony of Patty and Mike. As fact-finder he had the authority to do so.
2) Again, ALJ Rudloff had found the testimony of Bryant to be credible. This included a portion of Mike’s testimony. The ALJ had the authority to do so.
3) Placing a claim in abeyance and ordering the cessation of the compensation payable throughout the period during which the refusal or obstruction continues is the only appropriate sanction available to the ALJ for a claimant’s failure to appear at a scheduled medical examination. The claim was already in abeyance as Bryant was awaiting surgery, and Jessamine failed to file any motion definitely requesting the ALJ to grant relief. ALJ Coleman determined that Bryant did not refuse to cooperate, and no petition for reconsideration was filed on this issue.
4) While Bryant was claiming he was not working and unable to work, he was videoed working at a garage several days consecutively. There was no evidence of pay.
The ALJ has the discretion to make a referral for further investigation. He declined to do so, because, as he stated in his Award, Bryant was not receiving TTD benefits at the relevant time. Therefore, it did not matter if he were receiving pay for the activities in the video. The video on its own without other supportive evidence does not mandate a referral.
5) Bryant was seen carrying a small white box in the video. The ALJ, in noting the Trane case, determined Bryant was capable of performing regular work after reviewing the video. The ALJ was unable to “articulate extraordinary circumstances based on specific evidence-based reasons” for awarding TTD benefits beyond the video date.
6) The ALJ set forth an exhaustive Fawbush analysis, and, relying on Bryant’s testimony regarding his ability to return to work, potentially in a supervisory capacity, determined he would be able to return to work for same or greater wages. ALJ Coleman considered Bryant’s advanced experience, relatively young age, advanced certifications, and reputation for work in the business community.
Disposition: Opinion Affirmed on Appeal and Cross-Appeal
ALJ: Hon. John Coleman
Def. Atty.: Greg Little

Case Name, Citation, Author: James Mayer v. Ford Motor Company; WCB No. 200986745; Rechter; Entered 12/2/2016
Facts: Mayer was injured in 2008 and underwent a spinal fusion at L3-4 and L4-5. He was awarded PPD based on a 28% whole person impairment rating. He returned to the same job he performed prior to the surgery and at a greater wage. Thereafter he began to experience increased pain in the right lower extremity. He was advised against additional surgery. He also experienced urinary incontinence, and increased left ankle pain from an injury he had sustained prior to Ford and which had required surgery. In 2014, Dr. George Quill performed fusion surgery to the ankle, and diagnosed him with end-stage arthritis, and later CRPS. Mayer continued to suffer low back and lower right extremity pain, as well as incontinence. The most significant problem was the left ankle pain. Dr. Ellen Ballard examined Mayer after the original injury and assessed a 28% impairment. She saw him again in April, 2015 and opined he had developed
adjacent level degeneration at L2-3, and assessed an additional 5%. She also opined that the urologic problem was caused by his work-related spinal condition and added 41% for the incontinence. She acknowledged this had not been corroborated by any urodynamic study. She also thought the altered gait from the RLE radiculopathy had led to an aggravation of the left ankle condition. He was allowed to do sedentary work so long as he was able to change positions frequently. Dr. Greg Gleis opined the lower back had improved since the injury, and acknowledged a new spinal condition at L2-3, but noted the current ROM warranted a 27%. In the absence of urodynamic studies, the urological condition was not related to the spinal. Even if it were causally related, it would only be a 10%. The left ankle was completely unrelated to the RLE. The ALJ found the urological condition to be work-related, and awarded 10%.
The left ankle condition was not work-related. The ALJ awarded an additional 5% for the lumbar, and concluded that Mayer lacked the capacity to do his prior work, and applied the “3” multiplier.
Procedural History: Mayer appeals from an Opinion and Award on Reopening, arguing the evidence compels a finding that he is now permanently totally disabled.
Issues: Did the ALJ abuse his discretion when he failed to find Mayer totally permanently disabled?
Holding: No
Reasoning: Both Dr. Gleis and Dr. Ballard recommended restrictions relative to the back, but none to the bladder condition. Mayer is relatively young at 47, and has a college degree in accounting. Though there is evidence that would support a different conclusion, it is insufficient to require reversal.
Disposition: Affirmed
ALJ: Hon. John Coleman

Case Name, Citation, Author: Dwight Saylor v. Enterprise Rent A Car; WCB No. 201591714; Rechter; Entered 12/9/2016
Facts: Saylor was in a deep squatting position and when he stood up his knee straightened and twisted. Enterprise accepted the claim for right knee strain and quadriceps strain, and approved initial care. Dr. James Bilbo then requested approval for a total knee replacement. Bilbo’s records showed that Saylor had undergone right knee surgery in 1982, but no subsequent
symptoms. Citing a CT Scan, Bilbo recommended the joint replacement, stating that Saylor suffers from an accentuation of his arthritic symptoms. He opined the changes in his arthritis were due to his work injuries. Enterprise then filed Dr. Richard Sheridan who diagnosed a strain of the quadriceps tendon, which had resolved. He also diagnosed severe osteoarthritis in the right knee which pre-existed the injury. He did not believe the work incident aggravated the osteoarthritis. The ALJ found Dr. Sheridan’s opinion to be most persuasive, and concluded the severe osteoarthritis pre-existed the injury and was the reason for the proposed surgery.
Procedural History: Saylor appeals from a pre-award MFD denying his request for a total knee replacement. The ALJ found the proposed surgery not related to the work injury and not reasonable and necessary.
Issues: Did the evidence overwhelmingly support the conclusion that the work incident substantially aggravated Saylor’s dormant, pre-existing arthritis?
Holding: No
Reasoning: In a pre-award MFD, the claimant bears the burden of proving the proposed treatment is reasonable and necessary for the cure and relief of a work-related injury. The opinion of Dr. Sheridan constituted the requisite substantial evidence.
Disposition: Affirming
ALJ: Jonathan Weatherby

Case Name, Citation, Author: Johnnie Brown v. The Willows at Hamburg; 2015-SC-000322-WC; This is an unpublished Supreme Court case with no listed author. RENDERED 5/5/2016.
Facts: Brown was a CNA who injured her low back lifting a patient. Brown was treated by Dr. Jerry Morris, an osteopath, and Dr. Oliver James, pain management. In addition to filing their reports, Brown also filed the IME of Dr. Anthony McEldowney who assigned 10%, apportioned 7% for the lumbar and 3% for the left hip. Willows filed Dr. Phillip Corbett who assigned 0% for the back, and 0% for the LE. Brown argues the ALJ could not rely on Corbett’s rating for the lumbar, because he did not believe she even had an injury. It is illogical for the ALJ to find she had a low back injury and then adopt an impairment rating of someone who did not believe the injury had even occurred.
Procedural History: Brown appeals a COA decision that affirmed an opinion of the WCB that affirmed in part and reversed in part an award of the ALJ. Brown argued that the ALJ erred by relying on portions of contradictory expert opinions to select an impairment rating for her low back injury.
Issues: Was the ALJ allowed to use testimony of conflicting physicians’ reports?
Holding: Yes
Reasoning: The use of testimony from conflicting reports is well within the discretion of the ALJ.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author: Johnny Collins v. Pine Branch Mining LLC; WCB No. 201500572 & 201500571; Alvey; Entered 11/4/2016
Facts: Collins alleged injuries to neck and back due to repetitive use while working for Pine Mountain, listing the date of injury as 7/7/2014. Collins also filed for a hearing loss. Collins worked in surface mining, and operated a loader. He ceased working due to unrelated renal failure. Collins injured his neck in 2001 but did not file a claim. He treated regularly for this condition. He started having back pain about 8 years previous, but there was no medical treatment except for the neck. Collins filed the records and report of Dr. Chad Morgan, D.C. He noted the history of job-related micro-trauma, and physical jarring and trauma. The neck and back problems were work-related, and Collins’ job brought into disabling reality the cumulative trauma which had been ongoing for years. There was no prior active impairment. Collins filed Dr. Arthur Hughes. Collins’ injuries caused his complaints. Collins’ pain and impaired functioning were a consequence of repetitive and
cumulative trauma to the affected areas. He assessed a combined 30% for the right shoulder, left shoulder, right CTS, left CTS, low back and left knee; 0% for the cervical; no return to former job, and restrictions. Pine Branch filed Dr. Daniel Primm who diagnosed degenerative changes consistent with age and no evidence of cervical or lumbar radiculopathy. No objective evidence of permanent impairment. He could return to work without restrictions. Pine Branch also filed Dr. Russell Travis. He could not understand the diagnosis of a cumulative trauma injury as there had never been an MRI of the lumbar spine, either right or left shoulder, knees, or any other area except the cervical spine years ago. Dr. Brittany Brose performed a university evaluation, and stated objective and behavioral measures are consistent, and show a typical high frequency hearing loss pattern of that seen with long term noise control. She assessed 0% and recommended binaural hearing aids.
Procedural History: Collins appeals from the decision dismissing his claim for cumulative trauma injuries to multiple body parts. Collins essentially argues the evidence compels a finding that he suffered from cumulative trauma injuries due to his work activities with Pine Branch.
Issues: Did the evidence compel a different result?
Holding: No
Reasoning: This is simply a case of which medical evidence the ALJ chose to believe. Drs. Primm and Travis found no objective evidence of permanent impairment or cumulative trauma.
Disposition: Affirmed
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author: Chrystal Lynn v. G UB MK Constructors; WCB No. 200898957; Rechter; Entered 11/4/2016
Facts: Lynn was a boilermaker who was injured on December 6, 2007, when she fell 23 fell from a ladder, injuring her left leg, left ankle, neck and back. Lynn submitted Dr. Robert Sivley, a psychologist, who diagnosed adjustment disorder with mixed anxiety and depressed mood, moderate; PTSD, chronic, and rule out panic disorder. He assigned 20%, recommended psychiatric
treatment, and stated the impairment was related to the injury, with no preexisting condition. GUBMK submitted Dr. Timothy Allen, a psychiatrist, who diagnosed somatic symptom disorder with predominant pain, persistent, moderate. No PTSD. She exaggerated her psychological tests. Stress was a contributor. Since she worked six years following the injury, this contradicts any claim of avoidance. He assigned 10% due to non-work-related psychosocial stressors. GUBMK also filed Dr. Timothy Kriss. He opined Lynn sustained a concussion. Any symptoms resolved within 12 days. No PTSD. He diagnosed somatization and panic attacks which are intrinsic to her personality and not related to the work injury. As to the ankle, she had a badly contused talus and severely
sprained left ankle joint in the injury.
Procedural History: Lynn appeals from the decision awarding her benefits for neck and low back injuries, but failing to award benefits for her psychological and ankle conditions.
Issues: Did the evidence compel a finding in favor of the Claimant for a psychological award, and for medicals for the ankle?
Holding: No
Reasoning: The ALJ’s reliance on Drs. Kriss and Allen was sufficient evidence to deny the psychological award. Dr. Kriss found only a temporary injury to the ankle and Lynn offered no
medical opinion that she required ongoing medical treatment for her ankle.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: United Parcel Service Inc. v. Anthony Woods; 2015-SC-000647-WC; All Sitting, All Concur (Not to be Published) RENDERED 8/25/2016.
Facts: Woods was a utility driver who sustained a “back and ribs” injury on 10/8/08. He later amended his claim to include a psychological injury. The issues in this case revolve around the psychological injury, and not the physical injury. Woods filed Dr. Gregory Singleton who diagnosed a major depressive disorder, single episode-severe. No rating was assigned as Woods was not yet at MMI. UPS filed Dr. Daniel Garst who diagnosed major depressive disorder, half related to the work injury, the other half to non-work related stressors. Garst assessed 0% but recommended continuing treatment and psychotherapy. Neither Dr. Singleton, nor Dr. Garst believed Woods’ psychological injury had reached MMI. On reconsideration, the ALJ stated that as a result of his combined physical injuries and subsequent surgeries and his current psychiatric condition that Woods was totally and permanently disabled. UPS argues that the ALJ erred finding that Woods was entitled to PTD benefits because he partially relied on Woods’ psychological condition in finding he was unable to work. Since Woods had not reached MMI for the psychological, he is ineligible to receive any PTD due to his depression and anxiety. Also, since this may improve with treatment, the claim should be placed in abeyance and he should continue to receive TTD, and not PTD.
Procedural History: COA affirmed ALJ award of PTD to Woods.
Issues: Was the award of PTD inappropriate because the ALJ partially based his findings on a work-related psychological injury which had not reached MMI and for which no rating had been given?
Holding: No
Reasoning: The ALJ did not find that Woods was entitled to PTD benefits for his psychological condition-instead he used his psychological and mental state as an element of his Hamilton analysis in determining his capacity to work. How the psychological condition affected daily life in conjunction with the physical limitations warranted PTD benefits. As a side note, the ALJ had not indicated which impairment rating was used for the back in his PTD award, so the case was remanded for that finding. Note that this award for PTD was made even with the finding that Claimant was not at MMI for the psychological. The ALJ did not base the finding on the psychological, stating it was only an element of the PTD.
Disposition: Affirmed
Supreme Court Panel: All Sitting
ALJ: Hon. Scott Borders

Case Name, Citation, Author: John Blickenstaff v. United Parcel Service; No. 2016-CA-001119-WC; Lambert, D.; Rendered 12/2 2106; NOT TO BE PUBLISHED
Facts: Blickenstaff began experiencing back pain in late September, 2014. He sought treatment from his family physician who diagnosed low back pain and radiculopathy and took him off work. Work-relatedness was not discussed in the diagnosis. Billing was through his health insurance, and not WC. In October, 2014, Blickenstaff took FMLA until November for “my own medical
condition.” In November he saw Dr. Joseph Zerga who took a history that Blickenstaff sustained a specific injury but did not report it. He opined the proximate cause of the symptoms was the single injury event. Blickenstaff provided notice of the injury on March 23, 2015. Blickenstaff’s filed claim alleged a cumulative trauma injury, not a single event. The ALJ found a single event, and that Blickenstaff failed to give adequate notice. The claim was then dismissed by the ALJ and upheld by the WCB.
Procedural History: Blickenstaff appeals for a review of the ALJ and WCB decisions dismissing his claim for failure to timely notify his employer of the alleged work-related injury.
Issues: Did the ALJ appropriately find that the Claimant failed to give adequate notice of his injury?
Holding: Yes
Reasoning: The ALJ’s finding that this was a single event, and not a cumulative trauma claim was within his discretion. The evidence supported such a decision and would not be disturbed.
The ALJ clearly believed Dr. Zerga over Blickenstaff and he was entitled to do so.
Disposition: Affirmed
Court of Appeals Panel: Jones, Lambert, D., and Taylor
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Russell Bolton v. Bolton Bros Concrete; WCB No. 201491561; Alvey; Entered 12/9/2016
Facts: Bolton filed a claim for his left shoulder injury of 2/21/2014 when he slipped and fell on a Bobcat bucket. Bolton treated with Dr. Adam Metzler who performed two surgeries: 4/2011 to
repair the rotator cuff; and 2/2015 to insert at least 8 anchors. He was released to RTW without restrictions. He RTW at the same wage, but fewer hours. He could not perform all of his
prior job duties, and believed he only still had his job was because it was family. Dr. Metzler assessed a 16% under the Guides, including ratings for range of motion, loss of strength, and pain.
Dr. Wunder assessed a 19% impairment under the Guides, including range of motion, loss of strength, and pain. Bolton Bros file Dr. Rafid Kakel who assigned no restrictions, no future
medical, and a 5% based on loss of range of motion. He excluded anything for loss of strength explaining the Guides state: “decreased strength cannot be rated in the presence of decreased range of motion,” and that objective anatomic findings take precedence over loss of strength. He specifically stated that he disagreed with the calculations of Metzler and Wunder. The ALJ adopted the 5% of Kakel stating that he did not believe that neither Metzler nor Wunder’s ratings were in compliance with the Guides, and were not consistent with the fact that Metzler released Bolton to RTW full duty with no restrictions.
Procedural History: Bolton appeals from an award of TTD, PPD, and medical for a work-related left shoulder injury on 2/21/2014. On appeal Bolton argues the ALJ failed to explain why he found the ratings assessed by Drs. Adam Metzler and Steven Wunder were not in compliance with the AMA Guides, and that his RTW subsequent to his accident should not be a factor in determining
an impairment rating.
Issues:
1) Was the ALJ required to explain more fully why he felt that Drs. Metzler and Wunder’s ratings were not in compliance with the Guides?
2) Did the ALJ improperly consider the fact that Bolton returned to work?
Holding:
1) No
2) No
Reasoning:
1) It is the ALJ’s function as fact-finder to weigh the evidence and select the rating upon which permanent disability benefits will be awarded. Bolton did not argue Kakel’s assessment was not in accordance with the Guides. Kakel provided reasoning and explanation why he felt decreased strength should not be included in the assessment of impairment. This is not a case where the ALJ
is faced with overwhelming evidence that a rating was not calculated per the Guides. Bolton did not challenge Kakel’s rating. Kakel’s rating was substantial evidence.
2) The ALJ did not assess his own rating nor otherwise impermissibly use the Guides to arrive at an independent rating. He considered all the ratings and arrived at the one he felt most credible.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Stephen Wayne Brock v. Lone Mountain Processing, Inc.; WCB No. 201501830 & 201501828; Alvey; Entered 12/2/2016
Facts: Brock filed a Form 101 alleging injuries to his upper extremities, left knee, neck and low back due to the repetitive nature of his work activities as an underground coal miner. The date of injury was identified as 7/10/2015, his last day of work. Brock attributed his pain due to his work activities and body positioning. His family physician, Dr. Gregory Dye, advised him to quit. Prior to retiring, he had no formal restrictions had not missed work due to his conditions, and performed his normal work duties. Prior to Lone Mountain, Brock had 2 orthoscopic surgeries to the right knee, and finally a knee replacement. He also treated for his neck with injections, and had right shoulder surgery in 2011. No prior claims were filed. Brock claims his exam with Dr. Primm lasted 10 minutes. He was not asked his specific job duties, and did not recall Primm using any device to take measurements other than a reflex hammer. Lone Mountain filed Dr. Lukins’ records containing prior treatment and surgical notes. Lone also filed Dr. Woolum’s records showing treatment for neck and right shoulder pain in 2009. A 2009 cervical MRI showed degenerative spondylitic changes involving C2-6, with spurring, circumferential bulging disc at C3-4 and C4-5, encroaching, spinal stenosis and neuroforaminal stenosis at C3-6, and facet arthropathy involving C3-7. A 2009 right shoulder MRI showed impingement syndrome, spurring, degenerative changes, tendinosis, and possible tears. The left MRI showed a full thickness tear, impingement syndrome, and degenerative changes. Additional multiple records of treatment to the neck and both shoulders prior to the injury date were filed by Lone Mountain. Brock filed Dr. Bruce Guberman. He assessed 18% for the cervical, 8% for the lumbar, 4% for the left knee, 3% for the right shoulder, and 5% for the left shoulder for a combined 34%, with no return to work. He further opined the physical demands of Brock’s underground coal mining work hastened and increased the severity of the degenerative changes and stenosis in the cervical and lumbar spine, and also the abnormalities in his left knee and both shoulders. Dr. Primm thought Brock did well following surgeries, the lumbar spine was unremarkable, and there were no sign of radiculopathy. Nothing was workrelated, and there was no impairment rating. The ALJ then relied on Dr. Guberman’s opinion for the lumbar, and Dr. Primm’s report for the neck, shoulders, and knee. He awarded 8% for the lumbar with the “3” multiplier.
Procedural History: Brock appeals from the Opinion and Award of PPD and medical benefits for his lumbar condition caused by cumulative work-related trauma, but dismissing his claim for benefits for cervical, bilateral shoulder, and left knee conditions. Brock argues the ALJ erred in relying on Dr. Daniel Primm and not on Dr. Bruce Guberman.
Issues: Were Dr. Primm’s opinions regarding causation and diagnosis in conformity with the AMA Guides?
Holding: Not really an issue
Reasoning: While a physician’s opinion on impairment must be in conformity with the AMA Guides, there is no such requirement regarding his or her medical opinion regarding causation and diagnosis. See Tokiko (USA), Inc. v. Kelly, 281 S.W.3d 771 (Ky. 2009) In addition, there was more than ample evidence in the file that Dr. Primm had thoroughly reviewed all the extensive medical records of Brock, and that his opinion considered all the records.
Disposition: Affirmed
ALJ: Hon. John Coleman

Case Name, Citation, Author: Caring People Services, LLC v. Mary Gray; No. 2016-CA-001032-WC; Jones; NOT TO BE PUBLISHED
Facts: Gray was a personal helper whose duties consisted of providing non-medical personal care services at various locations, including homes. She was injured in a MVA travelling to a client’s home. Caring denied the claim. Gray commuted to and from the same client’s house every day, and Caring argues this is no different from any other employee riving to or from their regular place of business. Caring claims the “going and coming” rule applies. The ALJ found this as an exception and awarded benefits, relying on Olsten-Kimberly Quality Care v. Parr, 965 S.W. 2d155, (Ky. 1998).
Procedural History: Caring appeals from an opinion of the WCB affirming an award of benefits to Gray, contending that because Gray’s injury occurred while she was in her personal vehicle during her commute from her home to her regular worksite, it was not work-related.
Issues: Was this an exception to the “going and coming” rule?
Holding: Yes
Reasoning: Gray’s travel was a benefit to Caring People, whose central purpose was to provide off-site care for clients. Gray was hired to provide that care and she was required to be able to transport herself to the client. Travel was an essential element of her duties and travel was for the benefit of caring People. Without travel to the person’s home, Caring’s services would be impossible to perform.
Disposition: Affirmed
Court of Appeals Panel: Acree, Jones, and Vanmeter
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Hitachi Automotive Systems Americas, Inc. v. James Poynter; WCB No. 201484439; Alvey; Entered 12/9/2016
Facts: Poynter worked the assembly line which required him to complete 2500 to 3000 parts per shift, and to lift and reach overhead. He was working 84 hours per week. On 4/10/2014, he felt a pinch in his left shoulder. After an MRI, he was restricted to light duty, and referred for surgery performed by Dr. Timothy Wilson on 8/28/14. Poynter worked light duty until terminated on 4/28/2014 for reasons unrelated to the injury. He worked light duty for 16 days following the injury. He stated that this aggravated the shoulder. He earned the same hourly wage, but worked fewer hours. Poynter’s job pre-injury required him to lift up to 35 pounds repetitively from floor to waist and sometimes to shoulder height. With restrictions of no lifting over 20 pounds overhead, and 40 pounds waist level, Hitachi claims Poynter could do his previous work. Hitachi claims he was not allowed to stack the crates he was stacking above chest level for safety reasons. After conservative treatment, Dr. Wilson performed a left shoulder arthroscopy with debridement of a frayed labrum tear and open distal clavicle excision on 8/28/14. After a FCE, he restricted Poynter from lifting 40 pounds floor to overhead, and 90 pounds, floor to bench. He assessed 6% under the Guides. The restrictions assigned by Wilson were the result of the FCE conducted by Rick Pounds. Hitachi filed Dr. Stacie Grossfeld who assigned 6% and who essentially agreed with the FCE. Poynter filed Dr. Warren Bilkey who assigned 12% and restricted Poynter to no lifting over 20 pounds overhead and over 40 pounds waist level. The ALJ awarded TTD from date of injury, 4/10/14 until 2/20/15 when found to be at MMI. He adopted Wilson’s 6%, but adopted Bilkey’s restrictions. He stated that he found Poynter’s testimony credible as to his job and abilities, as well as Bilkey, and awarded the 3 multiplier.
Procedural History: Hitachi appeals from the award of TTD, PPD increased by 3, and medical benefits for a work-related left shoulder injury sustained on 4/11/14. Hitachi argues the ALJ did not perform a sufficient analysis under Trane concerning 16 days of TTD awarded, and, in considering Dr. Bilkey’s restrictions in applying the 3 multiplier. The PPD is affirmed by the WCB. The award of TTD is reversed and remanded for a determination of whether TTD was payable during a period of light duty work.
Issues:
1) Was adoption of Dr. Bilkey’s restrictions, in conjunction with Poynter’s testimony in awarding the “3”, substantial evidence?
2) Was the ALJ’s TTD analysis for the period of time following the injury that Poynter was not at MMI, but was working light duty sufficient?
Holding:
1) Yes
2) No
Reasoning:
1) When the issue is the claimant’s ability to labor and the application of the three multiplier, it is within the province of the ALJ to rely on the claimant’s self-assessment of his ability to perform his prior work. The ALJ’s rejection of Dr. Bilkey’s assessment of impairment does not mandate the ALJ reject other portions of his opinion, including the assignment of permanent restrictions and his opinion regarding Poynter’s ability to return to his former job.
2) The analysis is not simply whether Poynter had been released to full duty work while not at MMI. The ALJ is required to determine if Poynter had been released to return to customary employment, i.e. work within his physical restrictions and for which he has the experience, training, and education; and whether Poynter had actually returned to employment. The claim was remanded to the ALJ for additional findings of fact.
Disposition: Affirming in part, Vacating in part, and Remanding
ALJ: Hon. Roland Case

Case Name, Citation, Author: Toyota Motor Manufacturing, Kentucky, Inc. v. Kathy Prichard; No. 2015-CA-001762-WC; Maze; Rendered 12/16/2016; NOT TO BE PUBLISHED.
Facts: The main issue in this reopening case was whether or not the motion to reopen, filed more than 4 years after the award, was timely filed. An award of PPD was entered on 11/13/2007 for cervical strain and DDD in the neck, based on an 8% PI. In 2008, Dr. James Bean performed surgery to fuse 4 of the cervical discs. Prichard filed to reopen in April, 2009, and in September, 2011, the award was increased to 28%. Based on an April, 2014 report of Dr. Bean, Prichard filed a motion to reopen the 2011 award on 8/12/2014. Prichard testified she had not worked since 2008, and that her pain had increased and ROM had decreased. Dr. Bean indicated that Prichard could not even perform sedentary work. Dr. William Childers agreed with Bean, and said Prichard could no longer work due to chronic pain and need for strong pain-relieving medicine. Toyota filed Dr. Timir Banerjee who concluded that she had not changed since he saw her in 2009, and her 8% was unchanged. The ALJ found Prichard totally disabled based on Bean and Childers.
Procedural History: Toyota appeals from the WCB opinion affirming that Prichard was entitled to reopen a 2011 award despite requesting such relief more than 4 years after her original entry and claim. Toyota also argues that Prichard failed to establish a worsening of her condition necessary to reopen her claim.
Issues: Was the reopening timely filed? Was the evidence of a worsening sufficient?
Holding: Yes.
Reasoning: The COA relied on Hall v. Hosp. Res. Inc., 276 s.w.3d 775 (Ky. 2008). The precedential imperative of Hall is that a claimant may reopen “any subsequent order”, not just the original award. The Court concluded this without resort to whether a claimant is unable to file within 4 years of an original award, or is able to, but does not. The September 2011 award constituted an order granting or denying benefits as provided in KRS 342.125(3), and pursuant to Hall. The ALJ relied upon Drs. Bean and Childers concerning Prichard’s condition. Their observations was substantial evidence. The report of Dr. Banerjee was merely a battle of the experts. The ALJ could choose in his discretion.
Disposition: Affirmed
Court of Appeals Panel: D. Lambert, Maze, and Vanmeter
ALJ: Hon. William Rudloff

Case Name, Citation, Author: Herald Cline v. U.S. Smokeless Tobacco Co.; No. 2014-CA-0001965-WC; Nickell; Rendered 12/2/2016; NOT TO BE PUBLISHED
Facts: Cline sustained a “near amputation” of his right wrist and hand. After surgeries he continued to work, albeit in a modified and somewhat different job than before the injury, although his job classification remained constant. He was earning more per hour subsequent to the surgery. The ALJ awarded the “3” under Fawbush, and the employer contended that the ALJ failed to adequately address the third prong of the Fawbush analysis-the likelihood of Cline’s ability to continue earning wages exceeding those at the time of injury for the foreseeable future. The WCB believed that the ALJ’s analysis considered only Cline’s ability to continue in his current job and did not consider any other factors. The employer was entitled to specific findings and a complete analysis regarding the appropriate multiplier
Procedural History: Cline petitions for review of a WCB decision which vacated in part and remanded an opinion of ALJ Roark which awarded the “3” multiplier. The WCB concluded that more finding were necessary under Fawbush. The COA agrees.
Issues: Did the WCB correctly conclude that further finding were necessary under Fawbush?
Holding: Yes
Reasoning: The ALJ found that both the “2” and the”3” multipliers were potentially applicable, thus triggering the third prong of the Fawbush analysis. Although the ALJ may have reached the correct result, more detailed findings relative to the determination of Cline’s future earning capacity were required. The ALJ should analyze the broad array of factors influencing Cline’s ability to
earn the same or greater wages for the foreseeable future and subsequently make specific findings as to the evidence supporting the decision of whether application of the 2-multiplier or 3-multiplier is appropriate. These factors include the lack of physical ability to return to the type of work the claimant previously performed, whether the post injury work is done out of necessity,
whether the post injury work requirements are outside medical restrictions, and if completing the post injury work is only possible when the claimant takes more narcotic pain medication than prescribed.
Disposition: Affirming
Court of Appeals Panel: Clayton, Nickell, and Vanmeter
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Ford Motor Company v. Ronald Coleman Jr.; No. 2016-CA-000600; Stumbo; Rendered 12/2/2016; NOT TO BE PUBLISHED
Facts: Coleman filed his claim alleging an injury to his right hand, wrist, and elbow due to highly repetitive job activities on the assembly line at Ford. He first noticed the symptoms in 2005, which resolved, and then again in 2011. In 2013 he sought treatment in the Ford medical department. He testified that by June 3, 2013, he was taking 12 to 20 Ibuprofen tablets daily. Coleman filed his Form 101 on June 15, 2015, alleging injuries due to highly repetitive job activities on the assembly line at Ford, where he had worked for 16 years. In support of his claim, Coleman filed records created on June 3, 2013 by the Ford Motor Company Occupational Health and Safety Information Management System. Coleman’s job required him to break apart taped wiring harnesses some 300 to 350 times per day, and this caused a throbbing pain in his elbow. Ford switched his job position, and he had no difficulty in the new job. In November, 2013, Dr. Navin Kilambi performed surgery on Coleman’s right wrist and elbow, partially improving his symptoms. He was then treated by Dr. Tuna Ozyurekoglu who recommended additional PT and injections.
Coleman filed Dr. Jules Barefoot who diagnosed bilateral median nerve neuropathy, persistent right elbow common extensor tendinosis and left carpal tunnel syndrome. He assigned 6% and found everything to be work-related. Ford filed Dr. Richard Dubou who cited literature which did not find any consistent evidence linking occupational work exposure with epicondylitis
tendinopathy. In the WCB Opinion, the WCB stated that Dr. Barefoot’s testimony did not unequivocally state the elbow issues were not work-related. There was no issue raised by Ford concerning notice or the statute of limitations. The ALJ relied on Dr. Barefoot and awarded 6% PPD. He also found everything to be work-related. Ford appealed arguing lack of substantial evidence. The WCB affirmed.
Procedural History: Ford appeals from an Opinion of the WCB affirming an award that Coleman was entitled to TTD, PPD, and medicals for work-related right carpal tunnel syndrome and right collateral epicondylitis caused by repetitive activities at Ford. Ford’s argument was based solely on lack of substantial evidence
Issues: Was there substantial evidence to uphold the finding of workrelatedness and the finding of the 6% impairment?
Holding: Yes
Reasoning: Dr. Barefoot’s report clearly established causation for the right elbow. The ALJ clearly expressed why he found Dr. Barefoot’s findings most credible. The 6% assigned by Dr. Barefoot falls within the substantial evidence.
Disposition: Affirmed
Court of Appeals Panel: Clayton, Stumbo, and Vanmeter
ALJ: Hon. J. Gregory Allen

Case Name, Citation, Author: Ford Motor Company v. Donald Jobe; No. 2016-CA-000258-WC; Clayton; Rendered 12/2/2016; NOT TO BE PUBLISHED.
Facts: This Statement of Facts is a combination of the medical evidence contained in both the WCB and COA opinions, as the COA opinion did not address much of the pertinent factual medical information. Jobe was an employee at Ford who was injured when he tripped over a gap between two rubber floor mats that had been placed on the assembly line. He felt a pop in his right hip and began experiencing pain in his hip and leg. He had been treated for back pain for several years though not actively treated at the time of injury. For many months about 7 doctors could not agree on a diagnosis or the source of his pain. Eventually, on his own, Jobe went to see Dr. John Guarnaschelli, who in his initial examination on September 6, 2012, indicated that Jobe had sustained work-related low back and hip injuries. Jobe first underwent spinal surgery in an effort to see if that would resolve the leg and hip pain. When that surgery did not resolve the pain, he underwent hip surgery, which partially resolved his complaints. Dr. John Guarnaschelli performed a two level decompressive laminectomy and bilateral foraminotomy at L4-5 and L5-S1. In a later report, Guarnaschelli did not believe the condition was due to his occupation, and actually set the onset date as 2 days before the injury. Dr. Thomas Loeb diagnosed right hip ligamentum teres tear and referred Jobe to Dr. Thomas Byrd in Nashville for surgery. Dr. Gregory Nazar did not believe the pain was coming from the back at all, with no need for surgical intervention, but the pain was likely arising from the hip and recommended a second opinion consult. Dr. Thomas Byrd performed surgery consisting of a diagnostic arthroscopy of the right hip followed by endoscopy and repair of the gluteus medius. Immediately following surgery, Jobe felt relief, unlike after the back surgery. Dr. James Farrage performed an IME, post surgeries. He agreed with the
surgeries and stated it was entirely possible that Jobe sustained low back and right hip injuries at the time of the fall, and the fall was the precipitating event which led him to the doctors.
Dr. Gregory Gleis performed an IME post surgeries. He agreed with the hip injury as work-related, however did not feel the low back condition was related to the work injury, but rather caused by pre-existing multiple low back aggravations and the natural aging process. He noted the low back surgery did not improve the pre-operative symptoms. The ALJ was tasked with whether or not the work-related injury included the low-back condition. Relying on Coleman v. Emily Enterprises, Inc., 58 S.W. 3d 459 (Ky. 2001), which held that all of the injurious consequences flowing from a work-related physical injury and which are not attributable to unrelated causes are compensable, the ALJ found the low back impairment was assigned to Jobe due to the low back surgery he underwent “because the doctors were unable to accurately diagnose his work-related condition.” The lumbar spine was evaluated and treated only because the doctors had difficulty diagnosing the cause of the right hip pain. “The only reason Jobe underwent low back evaluation and subsequent surgery was because of the difficulty in making the work-related right hip diagnosis.”
On appeal to the WCB, Ford claimed the back surgery would have been performed at some time in the future regardless of the work-related hip injury. The WCB found substantial evidence to support the ALJ decision, including the low back as work-related. The ALJ used the 11% assigned to the back by Farrage and Guarnaschelli, and the 3% assigned to the hip.
Procedural History: Ford appeals the decision of the WCB which upheld the award of the ALJ. This was a causation case, with extensive medicals, in which the ALJ made a factual finding that was upheld.
Issues:
1. Did the WCB substitute its judgment for the ALJ’s judgment by using Dr. Guarnaschelli’s medical report and Dr. Farrage’s testimony to find a causal relationship between Jobe’s lumbar impairment and his work injury. Ford argued that the ALJ did not make an explicit finding that Dr. Guarnaschelli made a causal connection between Jobe’s work-related injury and lumbar condition, and thus the WCB was without authority to do so.
2. Was the ALJ’s determination that there was a causal relationship between the lumbar injury and the work accident a “legal” issue?
Holding:
1. No
2. No
Reasoning:
1. The ALJ made a factual finding that Jobe had sustained his burden. Having made this this factual finding on causation, the WCB was required to examine whether substantial evidence existed. It performed its function by examining the record in toto. Importantly, in the WCB opinion, the WCB cited the fact that the ALJ has the discretion to give more credence to Dr. Guarnaschelli’s initial report. The fact that he may have changed his opinion in response to questions posed in a FMLA form does not discount the fact that his 9/6/2012 report constitutes
substantial evidence in support of a determination Jobe sustained a workrelated back injury in addition to the hip injury.
2. While Ford maintained that the “uncontested” facts supported a different legal conclusion, the COA said that it was just that-Ford thinks the evidence supported a different conclusion about the FACTUAL question of causation. Causation is a matter to be decided by the fact-finder. The ALJ made a factual finding that there was a causal link. The WCB and COA pointed out that Ford
did not file a Petition for Reconsideration, so the factual determinations stood. The COA stated “Ford’s argument fails in toto.”
Disposition: Affirmed
Court of Appeals Panel: Clayto, Stumbo, and Vanmeter
ALJ: Hon. John B. Coleman; WCB Member who wrote Opinion was Stivers.

Case Name, Citation, Author: Sonya Lamb Middleton v. Lowes Home Centers Inc.; 2015-SC-000120-WC; This is an unpublished Supreme Court case with no listed author. RENDERED 10/29/2015
Facts: Middleton was a project specialist for Lowes who underwent fusion surgery for a cervical rupture at C6-C7. Her job was physically demanding, carrying and lifting construction samples in and out of her car. Dr. James Owen, Middleton’s expert, and Dr. Bart Goldman, Lowes expert, both assigned a 27% rating. While performing her job, pain radiates down her arm, and she may experience a burning feeling in her neck and numbness on the first and second fingers of her left hand. She was told to avoid activities such as extending her arm posteriorly and pulling.
Middleton testified that she would like some accommodations to make her job easier, however, she had not asked for them. She also feared she would need to increase her medications, but had not requested or been prescribed these drugs.
Procedural History: Middleton appeals a COA opinion which reversed a WCB decision affirming her award enhanced by the application of the three multiplier. The COA held that application of the 3 multiplier was unsupported by the record and based upon a hypothetical situation.
Issues: Did the COA err by reversing the portion of the ALJ opinion that enhanced her award by the three multiplier?
Holding: No
Reasoning: Middleton not only returned to the same job classification, but also performed the same tasks that she did before her work-related injury. While she did so with difficulty, she did complete them. She did not significantly exceed her restrictions performing her job. The expected use of stronger meds and accommodations were merely hypotheticals and not realities.
Disposition: Affirmed
ALJ: Hon. William Rudloff

Case Name, Citation, Author: Henry Podgursky D/B/A Modern Woodworking v. Robert Decker; No. 2015-CA-001390-WC; Jones; (TO BE PUBLISHED) RENDERED 10/21/2016.
Facts: This case is centered around the interpretation and application of KRS 342.650(2) which states: “The following employees are exempt from the coverage of this chapter: (2) Any person employed, for not exceeding twenty (20) consecutive work days, to do maintenance, repair, remodeling, or similar work in or about the private home of the employer, or if the employer has no other employees subject to this chapter, in or about the premises where that employer carries on his or her trade, business, or profession;” Decker alleged an injury when he fell from a ladder while winterizing the shop of Modern. In this case, the medicals were not discussed. Both parties testified that Decker never worked in excess of two consecutive days, and that he performed maintenance and repair work at Podgursky’s private residence, former business, and rental properties. There were no other employees subject to the Act. The ALJ found Decker fell within the exemption to the Act. The WCB reversed. This appeal followed. The emphasis on appeal was the scope and meaning of the phrase “person employed for, not exceeding twenty (20) consecutive work days.” While sympathizing with the ALJ’s plight, since there is little, if any, case law on the subject, the COA stated that under the ALJ’s interpretation of the statute, each day Decker worked after having a day off would constitute a new employment. This is neither a fair nor logical interpretation of the statute.
Procedural History: Podgursky (Modern) appeals from a WCB opinion that reversed the ALJ decision that Decker was exempt from Coverage under the Act by virtue of KRS 342.650(2).
Issues: Does KRS 342.650(2) require an employee required to work more than 20 consecutive days for coverage under the Act?
Holding: Under the circumstances of this case, No.
Reasoning: There was at the least an implied agreement that Decker would provide services to Modern on a regular and sustained basis over a sustained period of time. He performed work on projects as directed by Modern. There was no evidence to suggest that Decker and Modern negotiated a new contract of hire every day Decker returned to work following a day off.
The type of work Decker did also removed him from the exemption. The work of the employer was refurbishing furniture. When he was doing that type of work he was performing the work of the employer’s business. This is what he was doing at the time of the injury and is a vital distinction.
Disposition: Affirmed
Court of Appeals Panel: Clayton, Jones, and Taylor
ALJ: Hon. Jonathan R. Weatherby

Case Name, Citation, Author: Larry Sizemore v. T & T Energy; 2015-SC-000406-WC; This is an unpublished Supreme Court decision with no listed author. RENDERED 3/17/2016
Facts: Several days before 4/2/12 Sizemore, a truck driver for T & T claims he suffered an injury to his neck. He woke up on 4/12 with a pain in the neck, and this was referenced in the records of Dr. Dustin Chaney on 4/11/12. He claims to have told his supervisors that bulldozer operators were not properly depositing rock into the bed of his truck. He was laid off on 4/11, and gave
written notice of his injury on 1/17/13 which T & T denied receiving. He filed his 101 on 3/28/13. The ALJ entered a PTD award. On appeal, the WCB remanded and ordered
further findings on the issues of PTD and Notice. The ALJ again found PTD. On appeal to the WCB again, this time the WCB remanded with instructions to dismiss the claim due to lack of notice, and, found that Sizemore testified he never told his supervisors he was injured, and the earliest notice was January, 2013, and this was not “as soon as practicable”.
Procedural History: Sizemore appeals a COA opinion which affirmed a WCB decision that ordered his workers compensation award to be reversed and remanded to the ALJ to dismiss the claim. He argues the WCB erred by finding that he did not provide timely notice to the employer of his potential workers’ compensation claim.
Issues: Was notice timely?
Holding: No
Reasoning: Sizemore admits he never told the supervisors directly about the injury. There is no evidence the employer knew before January, 8 months later. There was no testimony that failure to provide proper notice was due to a reasonable cause or mistake. Sizemore gives no explanation why he did not tell T & T when Dr. Chaney diagnosed him with diminished range of motion in
April, 2012 after he told Dr. Chaney about the dumping of the rock.
Disposition: Affirmed
ALJ: Hon. William Rudloff

Case Name, Citation, Author: Smithkline Beecham v. Michael Smith; 2015-SC-000012-WC; This is an unpublished Supreme Court decision with no listed author. RENDERED 10/29/2015
Facts: Smith was injured in a work related MVA in 1997 causing severe injury to his spine and requiring several fusion surgeries. SmithKline filed this MFD alleging the PTSD was related to childhood abuse and trauma and was not work related. When he has a PTSD episode he relives abuse suffered as a child, and thus, SmithKline argues it is not responsible to pay for PTSD treatments, which it also considered were not reasonable and necessary. SmithKline presented Dr. Timothy Kriss and Dr. Timothy Allen, both of whom believed Smith’s treatments were excessive. Allen did not believe the PTSD was caused by the MVA. Smith filed Dr. Denise Winland, Dr. Brian Monsma, and Dr. Kelly Frogge to rebut SmithKline.
Procedural History: Smithkline appeals a COA decision arguing the ALJ erred by finding in favor of Smith in a MFD when he found Smith’s Post Traumatic Stress Disorder (PTSD) causally related to his work, and, that his treatment was reasonable and necessary.
Issues: Was there sufficient evidence to support the ALJ’s decision?
Holding: Yes
Reasoning: The ALJ simply found the evidence presented by Physicians who supported Smith to be more persuasive than the evidence submitted by SmithKline. With regard to the treatment, the same applies. According to the doctors, the current treatments are effective and it would be detrimental to change them at this time. NOTE: In a Dissent, Justice Keller warns that this opinion recognizes the compensability of a pre-existing dormant psychological condition that has been aroused into disabling reality by a physical injury.
Disposition: Affirmed
ALJ: Hon. Thomas G. Polites

Case Name, Citation, Author: Trimble Oil Company v. Jimmy Hopkins; WCB No. 201359546; Rechter; Entered 10/21/16
Facts: Hopkins was a truck driver for 17 years, performing heavy duty tasks. He awoke one day and was unable to move, but could not recite a specific event or injury, but stated that his back had worsened over time. Evidence showed that the worsening began in 2012. Dr. David Muffly diagnosed lumbar radiculopathy with right L4-5 focal disc protrusion/herniation and progression of L4-5 DDD. He related the condition to cumulative trauma caused by Hopkins’ work as a long haul truck driver and obesity. Dr. Schiller diagnosed DDD, not work-related, and symptom magnification. Dr. Michael Best diagnosed L4-5 herniation, not work-related, as Hopkins was unable to identify any particular work activity that precipitated the disabling pain.
Procedural History: Trimble appeals from the PTD award as a result of cumulative trauma injuries to the lumbar spine, challenging the determination that the injuries are work-related.
Issues: Was there sufficient evidence to support the ALJ’s award based on work-related cumulative trauma?
Holding: Yes
Reasoning: Dr. Muffly’s opinion was sufficient. The fact that Dr. Muffly does not support his theory of causation with objective medical findings is immaterial: KRS 342.0011(1) requires a harmful change to be proven by objective medical findings but does not require causation to be proven with such findings.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Hazard Community College v. Wayne Melton, WCB No. 201077219; Alvey; Entered 10/7/2016
Facts: Melton settled his low back claim in March, 2015, for a substantial sum, waiving all medicals except those relating to the low back. In February, 2016, less than one year later, HCC filed a U/R report of Dr. Woodley Hardy-Davis stating that neither the treatment with Butrans, Hydrocodone nor Cymbalta were work related, medically necessary, or appropriate. Also, the urine
tests did not reveal that Melton was taking these medications. An order was entered on March 14, 2016 listing the issues, allowing 30 days to enter evidence, and indicating the matter stood submitted as of April 12, 2016, despite the fact that the 30 days would not yet have expired for the taking of proof. On April 12, Dr. Asher, Melton’s treating physician, sent a letter to the ALJ setting forth her opinions. On April 18, the ALJ issued an order that she had received the letter and was notifying all parties. On April 28, HCC filed an objection and motion to strike as untimely which was overruled. HCC filed no further pleadings, nor did it attempt to rebut Dr. Asher.
Procedural History: HCC appeals from a MFD in favor of Melton by finding ongoing treatment with medications prescribed by Dr. Laura Asher, D. O., compensable. HCC argues that the ALJ abused her discretion by admitting into evidence a letter from Dr. Asher after the expiration of proof time and after the claim had been submitted for a decision.
Issues: Was allowing a late filed medical letter an abuse of discretion?
Holding: No
Reasoning: The WCB noted that proceedings in a post-award medical dispute in a reopening differ from the filing of an initial claim, and afford greater latitude or discretion to an ALJ. Specific dates are set forth in the initial claim, while the MFD is assigned to the Frankfort docket for “further proceedings.” The ALJ is allowed to set proof times, etc. The ALJ received the letter 2 days after the expiration of time for submitting proof had expired. The April 12 date was within the 30 day period. Subsequently, HCC did not move to reopen time, nor request leave to rebut Dr.
Asher. The introduction of evidence in reopenings for MFD does not fall within the restrictive timelines of the regulations, thus leaving the taking of proof to the ALJ’s discretion.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Henry County Board of Education v. Susan Sutherland; WCB No. 201362697; Stivers; Entered 11/4/2016
Facts: Sutherland retained her right to medicals following a Settlement Agreement approved by ALJ Case which set forth the following diagnosis: “Traumatic injuries to the right hip, right leg, low back, and coccyx.” Henry County questions the reasonableness and necessity of prescriptions for Lidocaine and Oxycodone prescribed by Dr. Damon Gatewood. Dr. Bart Olash did a U/R in which he stated that he did not believe these meds were necessary or appropriate for the work injury of 10/23/2013. Henry County filed an IME of Dr. Ellen Ballard recommending only an active
exercise program, not medications. Treating physician Dr. Damon Gatewood stated that the prescriptions provided considerable relief. He also recommended active physical therapy.
Procedural History: Henry County appeals from the MFD opinion in which the ALJ resolved the MFD in favor of Sutherland. Henry County argues the medical treatment is neither reasonable nor necessary treatment of the work-related injury. Henry County did not file a petition for reconsideration.
Issues: Was there substantial evidence to uphold the ALJ decision that Lidocaine and oxycodone were reasonable and necessary?
Holding: Yes
Reasoning: Work-relatedness of the medication was not contested. Dr. Gatewood’s report that Claimant was afforded “considerable relief’, while scant, was sufficient. The medical proof provided by Henry County failed to address the lack of work-relatedness of the contested medications.
Disposition: Affirming
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Homestead Family Farm v. David Perry & Uninsured Employers Fund; No. 2015-CA-001988-WC; Dixon; TO BE
PUBLISHED, Rendered November 23, 2016
Facts: Homestead’s farming business includes 25,000 acres of corn, soybeans and winter wheat that are harvested and eventually sold to grain elevators or distilleries. The sale of crops was Homestead’s sole source of income. Perry was employed as a truck driver and operations laborer when he injured his back while using an augur to move soybeans from the truck to the grain bin. The ALJ concluded that Homestead and Perry were engaged in agricultural work pursuant to KRS 342.630(1) and KRS 342.650(5) and dismissed the claim. He stated that the work performed by Perry was part of the preparation for market of agricultural commodities or at the very least part of work performed as an incident to or in conjunction with the farm operations.
The WCB reversed, relying on KRS 342.0011(18), holding that Perry was engaged in the commercial drying and storing of agricultural commodities when he was injured.
Procedural History: Homestead sought review of the WCB which reversed the ALJ decision dismissing Perry’s claim for benefits.
Issues: The sole issue is whether the agriculture exemption applies to Perry’s claim.
Holding: Yes it does.
Reasoning: The WCB misconstrued the definition of agriculture found in KRS 342.0011(18). Perry was tasked with hauling the harvested crops and unloading them at Homestead’s storage silos. His activities fit within the statutory definition of agriculture, i.e., “harvesting and preparation for market of agricultural…commodities…and any work performed as an incident to or in
conjunction with farm operations.”
Disposition: Reversed and Remanded
Court of Appeals Panel: Kramer, Dixon, and Taylor
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Point Arc of Northern Kentucky v. Geri Bennett; WCB No. 201471662; Rechter; Entered 11/4/2016
Facts: Bennett sustained strain injuries to her neck and upper extremities on 8/2/2014 while pulling sheets out of an ironing machine. After some regular duty, she was placed on light duty until she was forced to perform a job that exceeded her capacity in 10/2014 and her employment terminated. Dr. Allen Rison, pain management, administered injections and provided
prescriptions. Dr. Sperbeck, a chiropractor, diagnosed shoulder sprain/strain on the right, and cervical and thoracic sprain/strains. She was Category II and assigned 8%. He also assigned 5% for the right shoulder and 2% for pain, for a combined 15%. Bennett submitted records from Interventional Pain Specialists. Their records show improvement while on their medication regime, and Bennett’s pain was cut in half. Point Arc submitted Dr. Vaughan on an IME. He diagnosed chronic cervical strain and cervical spondylosis, which were not related to the work event, and
opined a prior active impairment of 5% for the cervical. Any aggravation did not increase impairment. No restrictions or additional medical as a result of the
work event. The ALJ accepted Vaughan’s 5% for the cervical; Sperbeck’s 5% for the shoulder, and rejected the 2% for pain. Pain management and chiropractic are compensable, and awarded future medicals with the exception of narcotic medication.
Procedural History: Point Arc appeals the decision awarding Bennett income and medical benefits for cervical and shoulder injuries. It argues the ALJ misinterpreted or failed to properly consider the evidence from Dr. John Vaughan, improperly relied upon an impairment rating from Dr. Mark Sperbeck, and erred in awarding future pain management and chiropractic treatment.
Issues:
1) Did the ALJ fail to consider evidence from Dr. Vaughan?
2) Did the ALJ improperly rely on Dr. Sperbeck’s rating because it disregards
the express terms of the AMA Guides?
3) Was the award of chiropractic and pain management reasonable?
Holding:
1) No
2) No
3) Yes
Reasoning:
1) Dr. Vaughan only addressed the cervical. He did not address the shoulder condition. There was no basis to conclude the ALJ improperly addressed the evidence from Dr. Vaughan.
2) The proper way to challenge a doctor’s impairment rating is to present medical testimony concerning the impropriety of an impairment rating, or cross-examine the doctor. No objection was made to the admissibility of his opinion. Point Arc identified no documented evidence of Bennett engaging in symptom magnification or voluntary limiting behavior. Point Arc’s assertions were to the weight to be afforded the evidence, and are insufficient to invalidate an impairment rating.
3) Based on the evidence the ALJ could certainly conclude this treatment provided relief and improved functionality. Bennett testified that she has a substantial reduction in her symptoms because of the pain management and chiropractic. Point Arc retains the ability to challenge whether these are reasonable and necessary in the future.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Praetorian Insurance Company v. Luie Whitaker Freight Agency, et al; No. 2015-CA-001641-WC; D. Lambert; Rendered 11/18/2016; Not to Be Published
Facts: Houston Whitaker was an employee of LWFA, a trucking business owned by his parents, and sole member of a farming operation known as H.B. Whitaker Farms, LLC. Houston died while working on the business premises of LWFA performing mechanic work on a truck during regular business hours. The truck was owned by T & M Trucking, whose owner, Tom Ruppel, who
allowed Houston to use it in his farming operations, and also authorized Houston to use it to haul freight if necessary. Houston had previously expressed an interest in buying the truck, but it was never sold to him. Praetorian denied the claim, stating that Houston used the truck solely in his farming operation. The ALJ found this claim to be work related, noting that LWFA used the truck for back up on short routes. LWFA said it was used only for farming operations, and had not been used since 2010. The ALJ made a factual determination that the truck was used as backup for short hauls. Consequently, the truck was available for use by LWFA, and working on the truck was work-related, and covered under the Act.
Procedural History: This is an appeal from a WCB decision affirming the ALJ who awarded death benefits to the Estate of Houston Whitaker. The issue was whether or not the accident occurred within the course and scope of Houston Whitaker’s employment.
Issues: Was this within the course and scope of Whitaker’s employment?
Holding: Yes
Reasoning: This was a factual determination made by the ALJ and would not be disturbed. There also appeared to be a reliance on W. R. Grace and Co. v. Payne, 501 S.W. 2d 252 (Ky. 1973) where the employer knew that the tools were used by an employee for personal use and did not object, even though it was not related to his duties and the employer derived no benefit from it.
Disposition: Affirming
Court of Appeals Panel: Acree, D. Lambert, Vanmeter
ALJ: Hon. Roland Case

Case Name, Citation, Author: Ricky Shepherd v. LKJ Crabbe, Inc.; WCB No. 201487221; Alvey; Entered 10/28/2016
Facts: The issue here is solely whether or not Shepherd was a seasonal employee. The WCB had previously directed a finding that indeed Shepherd was a seasonal employee. No appeal was taken from the second WCB opinion directing that Shepherd be found to be a seasonal employee. Shepherd argues the ALJ was forced to make this decision and his decision was clearly erroneous.
Procedural History: On this third time before the WCB, and a case we previously reported and summarized, Shepherd appeals an ALJ decision finding he was a seasonal employee. The ALJ was following the directives of the WCB.
Issues: Did the “law of the case” apply?
Holding: Yes
Reasoning: No appeal was taken from the WCB opinion directing that the ALJ find Shepherd to be a seasonal employee. The ALJ did as directed and his decision was not erroneous. The WCB referenced an unpublished Supreme Court case applying “law of the case” to workers’ compensation. See McGuire v. Coal Ventures Holding Company, Inc., 2009-SC-000114-WC, rendered
10/29/2009, Designated Not to Be Published. In worker’s compensation cases this means that a final decision by an appellate court or the WCB establishes the law of the case and must be followed in all later proceedings in the same case. Broadly said, a decision of the appellate court, unless properly set aside, is controlling at all subsequent stages of the litigation. The ALJ was obligated to follow the directives of the WCB.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author: George Springate v. Four Roses Distillery; WCB No. 201487092; Alvey; Entered 10/7/2016.
Facts: This is the second time on appeal. On remand the ALJ determined the pre-injury AWW based on Springate’s wages from Four Roses and his concurrent employment with Lowes. Springate did not RTW with Lowes, but only with Four Roses, post injury, and the ALJ determined that Springate had returned to work, but not to a wage equal to or greater than pre-injury. If he
ever did RTW for such wages, he would then be able to have his benefits doubled at the appropriate time.
Procedural History: Springate appeals from the ALJ award that he was currently not entitled to have his PPD award “doubled”. Springate argues that even though concurrent wages should be utilized to calculate AWW for TTD and PPD benefits, it should not be included for the purposes of application of the double benefit.
Issues: Are concurrent wages to be included in calculating post injury AWW when “doubling” the benefits is an issue?
Holding: Yes
Reasoning: The ALJ followed the WCB directives on remand. Springate returned to his primary job without restrictions or limitations. The fact that he is no longer employed at his concurrent part-time employment is not determinative.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: Heritage Healthcare/Middlesboro Nursing and Rehab v. Melissa Daniels; No. 2015-CA-001354; Taylor; Rendered 8/12/2016; NOT TO BE PUBLISHED
Facts: Daniels was a physical therapy assistant who injured her right ankle requiring 2 surgeries. She returned to work as a PT assistant without medical restrictions. Heritage argues that she retained the physical capacity to perform the tasks of PT assistant. The ALJ found that Daniels was not physically able to perform the same daily tasks she performed prior to the injury. She was unable to lift, transfer, and ambulate heavier patients without assistance, and she also suffered from daily pain and chronic swelling of the right ankle, as well as sustaining loss of range
of motion in the ankle.
Procedural History: Heritage appeals a WCB opinion affirming the ALJ’s award of PPD enhanced by the 3 multiplier.
Issues: Was the application of the 3 multiplier proper?
Holding: Yes
Reasoning: Daniels no longer possessed the physical capacity to perform the tasks of PT assistant. The Supreme Court has concluded that if an employee returns to the same job post injury but is unable to perform some of the tasks of that job, the employee is entitled to the three-multiplier under KRS 342.730 (1)(c)1. Ford Motor Company v. Forman, 142 S.W.3d 141 (Ky. 2004)
Disposition: Affirming
Court of Appeals Panel: Clayton, Jones, and Taylor
ALJ: Hon. William Rudloff

Case Name, Citation, Author: Kellogg USA v. Martha Cunningham; WCB No. 201365639; Stivers; Entered 11/4/2016
Facts: This 34 page opinion recites a whole litany of medical records where the Claimant was seen by medical doctors over the years for various conditions and injuries, some work-related, and some not. At no point in time did any of the physicians tell the Claimant about having any type of cumulative trauma injuries, although the Claimant suspected so. Finally, on January 28, 2015, Dr. Grossfeld informed the Claimant that the cumulative trauma injuries to her shoulders and low back were work-related.
Procedural History: Kellogg appealed from the ALJ decision awarding TTD benefits and medical benefits as paid for a 9/20/2013 acute injury claim; and TTD PPD, and medicals for cumulative trauma injuries to Cunningham’s low back, shoulders, and left knee with a date of 1/29/2015. Kellogg asserts that Cunningham failed to provide notice of the alleged cumulative trauma injuries
“as soon as practical”.
Issues: Was notice given “as soon as practical” of these cumulative trauma claims?
Holding: Yes
Reasoning: Until Dr. Grossfeld informed Cunningham on 1/28/15 that the cumulative trauma injuries were work-related, she was not obligated to tell Kellogg. None of the medical evidence submitted cited by Kellogg demonstrated that Cunningham was directly informed by the physicians that her cumulative trauma injuries to her shoulders, low back, and left knee were work-related. Whether Cunningham believed her injuries were work-related is wholly irrelevant concerning the question of when Cunningham is required to give notice to her employer of her cumulative trauma injuries.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: David Mort v. MS-IL Staffing; WCB No. 201462850; Stivers; Entered 11/4/2016.
Facts: Mort alleged an injury occurred on 8/30/2014. His last day of work for the employer was 9/4/2014. Since the sole issue here is TTD we will only address the testimony concerning TTD and MMI. Dr. Ellen Ballard testified that Mort attained MMI on 11/30/2014. Dr. Jeffrey Fadel assigned a 6% on 4/30/2015, with restrictions. Dr. James Rice assigned MMI on 7/7/2015 in his examination on 9/8/2015. The ALJ simply awarded TTD benefits “as paid”, with no further findings. In response to a petition for reconsideration, the employer finally conceded payments of TTD totaling $2135.59 for the period of 9/5/14 thru 11/30/14.
Procedural History: Mort seeks review of the award of TTD benefits “as paid”, PPD, and medicals for a work-related cervical injury. Mort argues that the ALJ failed to make necessary findings of fact regarding his entitlement to TTD benefits and the award is insufficient.
Issues: Was the ALJ’s failure to make findings of fact relative to rates and dates of TTD, and as to MMI, deficient as a matter of law?
Holding: Yes
Reasoning: The ALJ did not engage in the two-prong analysis as required by statute and relevant case law by determining the date Mort reached MMI, and when he reached a level of improvement that would permit a return to employment as defined by case law. The ALJ did not calculate the weekly benefit to which Mort is entitled nor did he determine the duration. There were no findings of fact concerning MMI. There were 3 possible dates for MMI.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Thomas G. Polites

Case Name, Citation, Author: Chester Ramey v. Palimar Electric; WCB No. 200879559; Rechter; Entered 10/14/2016
Facts: Ramey sustained a back injury, underwent surgery, and settled his case by agreement, retaining his right to medical benefits. This MFD challenged some of those benefits. Palimar submitted the U/R of Dr. Heidi Klingbeil who recommended a weaning from the Oxycodone. An IME was filed of Dr. John Vaughan who stated continued use of narcotics and Cyclobenzaprine, as well as bi-monthly visits and urine drug screens were unnecessary. Only Lyrica was necessary. The U/R of Dr. William Nemeth said that Ramey should be weaned from the drugs, as they were not necessary. Ramey could be seen quarterly, and drug screens performed two times a year. Ramey and Palimar both submitted Dr. Ushma Patel. All KASPER and drug screens were consistent. There was no inappropriate addiction behaviors. The medications improved his quality of life, and other treatment modalities had failed.
Procedural History: Ramey appeals from a MFD finding a prescription for Lyrica to be compensable, but finding bi-monthly office visits, bi-monthly urine drug screens, and prescriptions for Oxycodone and Cyclobenzaprine were not reasonable and necessary.
Issues: Was there sufficient evidence to uphold the ALJ’s findings to deny certain medical benefits?
Holding: Yes
Reasoning: The ALJ can choose the evidence he wishes. Important here was the ALJ’s reference to the Kentucky Board of Medical Licensure concerning drug screens. In short, it recommends random drug screens once a year if the patient is considered low risk, at least twice a year if moderate risk, three or four times a year if high risk, and at every office visit if the patient exhibits aberrant behavior. Nothing in the record suggested the need for bi-monthly visits or screens.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Ready Electric v. Thomas Scharrington; No. 2015-CA-001816; Dixon; Rendered 8/12/16; TO BE PUBLISHED
Facts: This case was previously reported and summarized as a WCB decision. Scharrington sustained serious injuries when his leg was caught in an industrial exhaust fan. Phillips, a journeyman electrician who was the supervisor, placed a lock-out tag device on the electrical circuit on the ground floor to disconnect the fan from the electricity. After replacing two belts, Phillips returned and removed the lock-out tag. Scharrington was still working on the fan when the belt inadvertently hit the switch and turned on the fan. Ready’s Safety Director concluded the accident was caused by not placing the lock-out tag on the main circuit before beginning work. The Supervisor was responsible for doing this. The ALJ awarded enhanced benefits. The WCB affirmed.
Ready argues that Phillips’ failure to comply with lock-out regulations should not be imputed to Ready, as the employer, as it was the intentional act of Phillips, as an individual, rather than an intentional act of Ready that injured Scharrington.
Procedural History: Ready Electric seeks review of a WCB opinion affirming an ALJ award of benefits, including enhanced benefits for an intentional safety violation. The ALJ opinion was following remand by the WCB.
Issues: Did Ready Electric commit an intentional violation that caused Plaintiff’s injuries entitling him to enhanced benefits pursuant to KRS 342.165(1)?
Holding: Yes
Reasoning: The COA relied on Chaney v. Dags Branch Coal Co. 244 S.W. 3d 95 (Ky. 2008) which held that an employer’s knowledge of state and federal workplace safety requirements is presumed; accordingly, the employer’s “intent” is inferred when there is a failure to comply with a specific safety violation by a management employee.
Disposition: Affirming
Court of Appeals Panel: Combs, Dixon, and Stumbo
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Reuben Wayne Shemwell v. Armstrong Coal Company; WCB No. 201497880; Alvey; Entered 10/21/2016
Facts: Shemwell alleged cumulative trauma to the right upper extremity caused by repetitive work at Armstrong. Treating physician Dr. Philip Singer, who performed surgery, assigned a 6%,
with restrictions. Dr. Brown diagnosed right lateral epicondylitis status post right elbow surgery, chronic right elbow pain and dysfunction, and assigned 12%. He used the grip
strength method. Dr. Michael Best diagnosed the same, found it to be work-related, but only assessed 2%. He criticized Brown’s methodology employed in his assessment. Best used range of motion in his assessment. The ALJ used Best’ 2%. Best says the loss of strength test cannot be used in the presence of pain and reduced motion. It prevents the application of maximum force.
Procedural History: Shemwell appeals from the award of benefits to him alleging the ALJ erred by relying on the opinion of Dr. Michael Best, arguing that he misapplied, misinterpreted, and failed to conduct a proper evaluation in accordance with the AMA Guides by failing to include his loss of grip strength in assessing an impairment rating.
Issues: Was there sufficient evidence to support the ALJ?
Holding: Yes
Reasoning: The ALJ has the authority to choose among the opinions of physicians who assess impairment differently. He may consult the Guides in the process of assigning weight and credibility to evidence. Although the assigning of a medical impairment rating is a matter for medical experts, determining the weight and character of medical testimony and drawing
reasonable inferences therefrom are matters for the ALJ.
Disposition: Affirmed
ALJ: Hon. Otto Daniel Wolff IV

Case Name, Citation, Author: Gregory Winfield v. Denyo; WCB No. 20130127; Stivers; Entered 10/27/2016.
Facts: The facts here are not as important as the reasoning below.
Procedural History: Winfield seeks review of the decision of the ALJ dismissing his claim for a cervical injury.
Issues: Must an ALJ identify specific records or testimony concerning what he considers to be inaccurate before making conclusory statements.
Holding: Yes
Reasoning: This 37 page opinion deals with one sole issue and that is simply that the ALJ did not make sufficient findings concerning what he considered to be inaccurate or incomplete information given to Dr. Primm by the Claimant. The ALJ needed to identify specific medical records or testimony he deemed to be less than accurate or incomplete. The ALJ cannot make conclusory statements without citing to supportive evidence in the record. See Commonwealth v. Worker’s Compensation Board, 697 S.W.2d 540 (Ky. App. 1985). Here, the WCB held that Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004) was not applicable because Cepero involved not only a complete failure to disclose, but affirmative efforts by the employee to cover up a significant injury to the knee only 2 and1/2 years previous.
Disposition: Afforming in Part, Vacating in Part, and Remanding
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: Donnie Caudill v. City of Morehead; No. 2016-CA-000010-WC; Vanmeter; NOT TO BE PUBLISHED; Rendered 10/21/2016
Facts: On May 21, 2013, while lifting, Caudill experienced burning pain in his mid-back (thoracic region). He did not originally complain of radiating pain or numbness, but did so as time progressed. An MRI showed mild central canal stenosis, but not thought to be related to the injury. Dr. Henry Tutt performed an IME and thought MMI six weeks after injury. Caudill wept during the examination, talking about his recent divorce. Tutt thought he had a transient myofascial injury, or thoracic sprain/strain. Dr. James Owen assessed 7% with MRI findings at T6 and T7. Complaints were greater than the objective evidence. Dr. Bruce Guberman assessed 7% for the thoracic. This was work-related, Caudill at MMI, and no further treatment. Dr. Gregory Snider did an IME. He found MMI, no further treatment, and 0%. Dr. Leigh Ann Ford did a psychological evaluation. She assessed 5% for generalized anxiety disorder, depressive disorder, NOS reading disorder. These were “as caused by the work-related injury.” Dr. Douglas Ruth did a psychological. If he received no treatment, 11%: 5% for the work-related back pain, and 6% not work-related. The 5% would improve with treatment. The ALJ found a transient thoracic sprain/strain. No permanent partial disability. No work-related psychiatric.
Procedural History: Caudill appeals the WCB order denying his claim for worker’s compensation benefits for a psychological injury, and finding only a temporary physical impairment.
Issues: Did substantial evidence support the ALJ?
Holding: Yes
Reasoning: The ALJ relied on Tutt. He found that Tutt was the only physician who received a complete history from Caudill, including the info about the divorce and other personal issues. He was also the first to see him. The ALJ properly used his discretion to weigh the various medical reports and find no psychological as being work-related. As with the psychological, the ALJ could choose the medical on the thoracic. Also, none of the examining physicians could find any objective reasons for his ongoing and even worsening symptoms.
Disposition: Affirmed
Court of Appeals Panel: D. Lambert, Maze, and Vanmeter
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: Glenn Hampton v. Flav-O-Rich Dairies; No. 2014-CA-000409-WC; Vanmeter; Rendered 10/28/16-NOT TO BE PUBLISHED
Facts: The facts of this case are relatively simple. This Claimant suffered a right shoulder injury for which the ALJ issued an award of PTD, relying on Drs. Favetto and Hughes, who assigned 14% and 10%, respectively, and ignoring Dr. Primm’s 4%, without restrictions. The ALJ’s findings concerning the evidence relied on were not specific, and he failed to make any individualized determination of what the Plaintiff could or could not do.
Procedural History: The ALJ awarded PTD. The WCB reversed. The COA dismissed the WCB as premature, and the SCT reversed and remanded back to COA for a decision.
Issues: Did the ALJ make sufficient findings in his PTD award?
Holding: No
Reasoning: The ALJ must provide specific findings of fact to support his decision. This includes specific findings regarding his interpretation of the evidence. He simply stated that he found the testimony that Plaintiff could not work credible. He did not specify which portions of Hampton’s testimony were persuasive, nor did he state why he found them so. He did not explain why the severity of the injuries, age, work history, or education contributed to his decision.
Disposition: Affirmed
Court of Appeals Panel: Combs, Maze, and Vanmeter
ALJ: Hon. William Rudloff

Case Name, Citation, Author: Patricia Hawkins v. Simpson County Board of Education; Alvey; WCB No. 201361326; Entered 10/21/2016
Facts: Hawkins suffered a low back injury when she slipped and fell at work on August 1, 2013. She worked until January, 2014, missing work only under FMLA. She has not worked since.
In 2011, Hawkins was involved in a MVA, denying injury to her back or hips. Several doctors either examined or treated Hawkins, with references to the MVA, but no specific references to injuries or disabilities resulting therefrom. The ALJ relied on the report and records of Dr. O’Brien who found Hawkins had an active, progressive lumbar condition prior to the fall. Other physicians had omitted prior back pain in their reports, as Hawkins had omitted this information from them. Only Dr. O’Brien provided a complete and accurate history because he had performed an examination AND a records review.
Procedural History: Hawkins appealed the decision dismissing her claim arguing the evidence did not support a finding that she suffered from a prior active condition.
Issues: Was the evidence sufficient to uphold the ALJ’s decision?
Holding: Yes.
Reasoning: Only Dr. O’Brien indicated which medical records he reviewed, and he noted inconsistencies in these records. Other doctors were silent as to which records they had reviewed. While other evidence was conflicting, it was not enough to require a reversal on appeal.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Koi Precast Concrete Products v. Eric C. Baker; WCB No. 201401615; Stivers; Entered 10/28/2016
Facts: Baker alleges two injuries to his back on September 18, 2012 and October 8, 2012. After each injury he returned to work light duty, and missed no work. Around December 2013, baker transferred to a sales position that was not created to accommodate his restrictions. At that time his salary decreased, but this was an agreed upon condition to the position that the
parties had agreed to prior to the injuries. He was transitioning to the new position at the time of injury. Baker presented Dr. Robert Klickovich and Dr. Jeffrey Fadel. Fadel assigned 13%, and opined that Baker did not retain the capacity to perform the work he was performing on October 8, 2012. The ALJ adopted this and enhanced the award by the three multiplier. Koi argued the 2 multiplier was applicable, however the ALJ found that since Baker did not miss any work, and the language of the statute indicates the possible application of the statute would only be appropriate to consider “If an employee returns to work…”, and the employee did not miss any work, there is no work for him to return to, so consideration of the 2 is not appropriate.
Procedural History: Koi seeks review of the ALJ’s award of PPD enhanced by the three multiplier and medical benefits. Koi’s appeal concerns the ALJ’s determination that he is prohibited from considering whether the 2 multiplier is applicable because Baker did not miss any time from work following his work injuries.
Issues: Did the ALJ properly interpret KRS 342.730(1)(c)2 in not applying the two multiplier?
Holding: No
Reasoning: In order for an employee to be eligible for enhancement of his PPD benefits by the two multiplier, he must return to work at a weekly wage equal to or greater than the AWW at the time of the injury. The statute does not require the employee to have missed work before he returns to work at a wage equal to or greater than his pre-injury AWW in order to be eligible for
enhancement by the 2 multiplier.
Disposition: Opinion Reversing in Part, Vacating in Part, and Remanding
ALJ: Hon. Otto Daniel Wolff IV

Case Name, Citation, Author: George Matthews v. American Ready Mix; WCB No. 201462004; Alvey; Entered 10/28/2016
Facts: Matthews alleged he injured his low back on May 2, 2014. He alleged he immediately provided verbal notification to the owner of American Ready Mix, as well as the operations manager. No injury or accident report was completed. His condition worsened and he called to report he was going to a doctor. Eventually, Dr. John Harpring performed surgery. Matthews’ private health
insurance paid the medicals, and he received AFLAC STD while off work. In his application for AFLAC he stated the injury was not work-related because his benefits would be denied if it were. He claims the agent told him to do this. Matthews had previously treated with a chiropractor for low back pain. Phillips, the owner, said that Matthews only told him he had hurt his back, not
that he had done so at work. His first notice of a work injury was the letter from the attorney, over one year later. Dr. Jeffrey Fadel assigned 13% for Mathews, opined the event was the sole
cause of the injury, and there was no pre-existing that could be rated. Dr. Thomas Loeb did an IME and assessed 13%, all related to an active, long standing, pre-existing condition. Also, Matthews had told the owner he was not going to file a worker’s compensation claim, and was going to file his claim with AFLAC for STD. The ALJ found that notice was not given until over one year later. The ALJ dismissed Dr. Fadel’s testimony as he had not discussed Matthews’ previous chiropractic treatment. Dr. Loeb’s attention to the past medical history and his opinion based on a combination of his exam, review of diagnostic studies and review of past medical records was reason to find his testimony the “most persuasive”.
Procedural History: Matthews appeals from the opinion of the ALJ dismissing his claim by finding that he untimely provided notice and that he failed to prove he sustained a work injury on May 2, 2014.
Issues: Was there substantial evidence to uphold the ALJ’s dismissal?
Holding: Yes
Reasoning: Dr. Loeb’s opinion that Matthews’ disc herniation was not caused or aggravated by the work accident constituted substantial evidence supporting the ALJ’s determination, and no contrary result is compelled.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author: Smith Interiors v. John P. Stucy; WCB No. 201588666; Rechter; Entered 10/28/2016
Facts: Stucy began work for Smith in November, 2014, but was laid off a few weeks later. He returned to work in February, 2015 as a drywall finisher where he finished seams for painting, lifting no more than a 3 ounce mud pan and a mud knife. On March 16, 2015 Stucy was directed to prepare a 20 foot high ceiling. He only had a six foot high scaffold. He testified his supervisor told him to “make it work” because the job had to be done that day. He then placed a 10 foot step ladder on top of the scaffold, and of course he fell from the ladder to the floor. He was taken off work until September, 18 2015, and did not return to work for Smith. Subsequent to the injury, the employer was paid a total of $720.00 by Smith “for 4-1-15, 4-2-15, 4-3-15, 4-6-15, 4-7-15, 4-8-15”. This was presented as evidence by the employer in the form of a handwritten note, without further explanation. In September, he began work for another employer performing more physical labor, and for another employer part time as a finisher. The supervisor for the general contractor testified that he told Stucy to get more scaffolding. Dr. Warren Bilkey assigned 8% for Stucy. For the employer, Dr. Thomas Loeb assigned 0%. Also, Dr. Sheridan assigned 0%. Neither assigned restrictions. The ALJ calculated AWW using the wages for the initial 3-week period, and the three weeks following the 8-week layoff, and dividing by 6.
Procedural History: Smith appeals the award of benefits arguing the ALJ erred in calculating AWW, in failing to grant a credit for wage continuation, and in refusing to impose a safety violation penalty. Stucy cross appeals that he is entitled to a 3.2 multiplier.
Issues:
1) Was AWW properly calculated?
2) Did Stucy commit a safety violation?
3) Was Smith entitled to a credit for wage continuation?
4) Was Stucy correct that he was entitled to the 3.2 multiplier?
Holding:
1) No
2) No
3) No
4) No
Reasoning:
1) The ALJ on remand was directed to calculate wages based on KRS 342.140(e), and to consider the availability of work “to other employees in a similar occupation.”
2) Stucy had called his employer and was told to “make it work”. Stucy was put in the position of whether to follow the unambiguous directions of the absent employer, or the person who was not his employer. The burden was on Smith, and the evidence was conflicting and did not incontrovertibly establish a safety violation.
3) The statement provided by Smith showing payment for one week failed to establish the nature of the payment, the source of the funds, and whether there was any internal offset provision. These are the requirements of KRS 342.730(6).
4) The work at the time of injury was light. There was substantial evidence to deny the multiplier.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Otto Daniel Wolff IV

Case Name, Citation, Author: Nan Benally v. Administrative Office of Courts; WCB No. 201494424; Stivers
Facts: Benally was a counsellor, who sustained injuries to her low back, right knee, left knee, and left ankle on 2/3/14. At the time of her deposition she was working her same job, however, not the same job duties. She testified about all of the things she could no longer do, and, that she now did a lot of paperwork for her other co employees. Her last day of work was shortly after the
deposition as she was returned to the University of Wisconsin to complete her PhD. Returning to work after the injury was at same or greater wages. Since resigning, she did not earn same or greater wages. Benally underwent surgery for the left knee 35 years previous, and had undergone treatment 3 to 6 months before this injury for pain to the left knee. Dr. Nawab had performed surgery to repair meniscal tears in the right knee and assigned 4%. Dr. Jules Barefoot assessed 9% to the right knee, 8% to the left knee, 5% to the left ankle, and 13% to the low back, for a combined 31% Whole Person. Everything was work-related. AOC used Dr. Michael Best who assigned no impairment for the left knee, 4% for the right knee, and 5% for the low back. No change in the human organism for the left knee. She could return to her regular duties without restrictions. The ALJ applied the 4% to the right knee, and 5% for the low back, for a combined 9%, and relied on Dr. Best that she could return to her regular duties. The ALJ found that the left knee was degenerative and pre-existing, and did not find it to be work-related.
Procedural History: Benally seeks review of an Award which denied benefits for left knee and left ankle injuries. She claims four errors: 1) The ALJ failed to make crucial findings detailing the
physical aspects of her job, and could she do these post injury; 2) Failing to award the “2” multiplier; 3)Finding the “3” multiplier was not applicable; 4) Benefits for the left knee should not have been denied based on pre-existing active condition.
Issues: 1) Did the ALJ fail to make crucial findings outlining the physical demands of her work and her performing these tasks after injury? 2) Was Benally entitled to the “2” multiplier beginning the date she last earned same or greater wages? 3) Should the ALJ have performed the analysis under Fawbush? 4) Was the defense of pre-existing active withdrawn and not to be considered
an issue since it was not listed on the BRC?
Holding: 1) No 2) Yes 3) No 4) No
Reasoning: 1) The ALJ reviewed Benally’s testimony and a copy of the job description filed. He also relied on Dr. Best’ testimony. The ALJ is not required to go over every detail of a worker’s job duties in minute detail. 2) The “2” multiplier is applicable. When she RTW at same or greater wages the multiplier became applicable. Applying the recent Livingood case, Benally is entitled to double income benefits during any period her employment at same or greater wages ceases for any reason with or without cause, except where her conduct was shown to have been an intentional deliberate action with reckless disregard of the consequences either to her or another. 3) As above, the ALJ carefully reviewed and discussed the job description and the testimony of Dr. Best. There was substantial evidence to support her decision. 4) The issue of whether Benally sustained a work-related injury to her left knee was tried by consent. Dr. Best testified in his deposition about the left knee issues, without objection. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. The only way a party may raise an objection to a deficient pleading is by objecting to the introduction of evidence on an unpleaded issue.
NOTE TWO THINGS HERE:
1) The filing of the job description played a large role in this decision.
2) You must object to evidence on an unpleaded issue when the other party
is trying to introduce it, or, it is tried by consent.
Disposition: Affirming in Part, Reversing in Part, and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Cengage Learning, Inc. v. Reeneace Clemons; 2015-SC-000286-WC; This is an unpublished Supreme Court case without a listed author. RENDERED 3/17/16.
Facts: Clemons sustained an injury on 6/7/13. Cengage sent a letter on 4/7/14 to discuss potential settlement of her claim. There were 2 offers, and Clemons could choose the one she wanted.
Clemons sent Cengage an alternative settlement. Cengage responded accepting one of the offers, and forwarding a Form 110. Cengage changed her mind, and hired an attorney. Cengage considered the matter settled and filed a motion to enforce and approve the settlement, arguing there was a meeting of the minds and the existence of a binding and enforceable contract. Clemons countered that she had changed her mind about a surgery she had previously agreed to forego, and that there were terms in the Form 110 which were not in her letters. The CALJ found there was no meeting of the minds, and that a settlement agreement is not effective until signed by a Judge. The WCB affirmed, stating that since Clemons’ letter to Cengage included two options, she was negotiating instead of making a counter-offer.
Procedural History: Cengage appeals a COA decision which affirmed an order of the CALJ that held there was not a meeting of the minds in a settlement agreement negotiated between Cengage and Clemons. Cengage argues there is sufficient evidence to show the parties entered into a valid contract.                                                                                                                                Issues: Was there a meeting of the minds?
Holding: No
Reasoning: The letters offering settlement indicate that the parties either gave, or at least acknowledged that there was a right to reject the offer. Additionally, Clemons stated the Form 110 contained terms that she was unaware of, and not included in prior correspondence. The Court noted that it was important to note that Clemons did not have an attorney when she proposed settlement and upon receiving advice of counsel, became concerned with the terms in the agreement. This indicated there was not a complete meeting of the minds.
Disposition: Affirmed
ALJ: Hon. J. Landon Overfield

Case Name, Citation, Author: Sheila Woodley Kingery v. Sumitomo Electric Wiring; 2014-SC-000422-WC; Noble. (This is a PUBLISHED SUPREME COURT CASE) RENDERED 10/29/2015.
Facts: In this reopening case, Sumitomo challenged the continuing compensability of Kingery’s treatment claiming that the currently prescribed drugs were not reasonable and necessary treatment of Kingery’s present complaints and that such complaints were not causally related to the 1989 injury. Specifically, Sumitomo challenged Lorcet, Skelaxin, Xanax, and Celexa. Dr.
Todd Douglas was the treating physician, however, stopped treating Kingery for the work issues after the dispute was filed. Notably, no medical opinions were filed by him. Dr. David Rudolph’s evaluation was filed by the employer. He stated that the complaints of pain were not related to the mild sprain or strain of 1989, and the drugs being prescribed were not reasonable and necessary to treat those complaints, whatever the cause. No medical evidence was filed to refute Randolph, only the lay testimony of the Plaintiff. The ALJ ignored the unrefuted medical testimony, relied on the lay testimony only, and found for the Plaintiff. The WCB affirmed. The COA reversed.
Procedural History: ALJ found treatment compensable, affirmed by the WCB, but reversed by the COA.
Issues: Was the decision of the ALJ to ignore the unrefuted medical evidence in favor of Kingery’s lay testimony based on substantial evidence?
Holding: No
Reasoning: The questions were undeniably those which should fall in the sole province of expert medical opinion. When all the medical evidence on a question points to one conclusion, the ALJ acts outside the immense discretion she typically enjoys when she rejects that evidence in favor of lay testimony to reach a contrary conclusion without sufficient justification for doing so.
Disposition: COA Affirmed.
Justices for: Noble, Abramson, Cunningham and Venters; Dissenting: Minton, Barber, Keller
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Uninsured Employers Fund v. Darlene Crowder, et al; 2015-SC-000362-WC; This is an unpublished Supreme Court case with no listed author. RENDERED 5/5/2016
Facts: In 2009 Davis and Dick purchased an existing Quiznos sandwich shop from a third party. After contracts and franchise agreements were signed with QFA Royalties, LLC, Davis and Dick created Pulaski Franchises, Inc. for the purpose of owning and operating the Quiznos. Neither the franchise agreement nor the assets were transferred to Pulaski, however, all of the restaurant’s cash flow was placed in accounts held by Pulaski. Crowder suffered a work injury to her eye. On the date of injury, the workers compensation policy held in the name of Pulaski had lapsed. QFA did not operate restaurants. It was in the business of licensing franchises and makes profit from the initial franchise fee and monthly royalties. The ALJ bifurcated and found that QFA did not have up the ladder liability since it was not involved in the operating or managing of the stores. Pulaski was found to be the employer. Davis and Dick were dismissed. The ALJ eventually ordered a PPD award enhanced by 3, along with TTD and medicals.
Procedural History: UEF appeals a COA decision which affirmed that QFA Royalties, LLC did not have “up the ladder” liability for benefits paid to Crowder, and that Davis and Dick are not jointly and severally liable to pay for the benefits.
Issues:1) Should QFA have been held liable under the up the ladder theory? 2) Were Davis and Dick engaged in a joint venture with Pulaski to operate the
Quiznos, and therefore liable?
Holding: 1) No 2) No
Reasoning: 1) QFA is in the business of granting and overseeing franchise agreements, not making and selling sandwiches. The Quiznos store was in the business of making and selling sandwiches. As a result QFA cannot be considered the contractor as defined in KRS 342.610 (2)(b). 2) The question was whether Pulaski was the employer. If so, Davis and Dick are shielded from liability. There was no evidence that Davis or Dick had any say in hiring Crowder and both testified that Pulaski was incorporated to operate the Quiznos. Crowder was paid from Pulaski’s bank and would have received workers compensation benefits from an insurance policy held in Pulaski’s name had the policy not lapsed.
Disposition: Affirming
ALJ: Hon. J. Gregory Allen

Case Name, Citation, Author: Zappos.com v. Sonia S. Mull; 2014-SC-000462-WC; This is an unpublished opinion of the Supreme Court and has no listed author. RENDERED 10/29/2015
Facts: This is a pre Trane v. Tipton case. Mull worked full time for Travelex, and part time for Zappos. The job at Zappos was standing, fast-paced, and repetitive. After reporting her injury, she was placed on light duty work for two months, when she quit, as she testified, not because she couldn’t do the work, but that she wanted to spend more time
with her family. Mull was examined by Dr. Dubou some 6 months later and found not to be at MMI. One month later Dr. McEldowney placed her at MMI. During this time, Mull continued to work full time for her other employer. Mull satisfied the first of the two prong test to receive TTD in that she was not yet at MMI. The Court did not believe that the second part was satisfied as she
received her regular wages, and the job she was placed on was not a “minimal” job, but one she had performed before.
Procedural History: Zappos appeals from a COA decision which reinstated an award of TTD, arguing the COA and the ALJ misapplied KRS 342.0011(11)(a) by holding that Mull was entitled to TTD benefits for a period after she voluntarily chose to quit while she was under light duty restrictions.
Issues: Was TTD payable when the claimant chose to voluntarily quit her job?
Holding: No
Reasoning: A Claimant can receive TTD for an injury sustained at one job while able to continue working a second job. TTD should not be awarded to a Claimant who chooses not to work for reasons unrelated to her work-related disability.
CAVEAT: This case was decided just before Trane v. Tipton, now the leading case on TTD. The result may likely have been the same, but this is a good opportunity for everyone to review Tipton.
Disposition: Reversing
ALJ: Hon. John Coleman

Case Name, Citation, Author: Cox Interior, Inc. v. Joshua Perkins; WCB No. 201496661; Stivers. Opinion Entered 9/22/2016.
Facts: This is an AWW case of an employee, considered as an apprentice/trainee in an experimental program, who worked less than 13 weeks, and averaged 29 hours per week, with potential to be promoted. When Cox filed its similar employee info, all employees listed were trainees and listed “29” as the number of hours worked. Had the employees worked 30 hours or more, they would have to be considered as full time employees and entitled to additional benefits. This was a program started by Cox to reduce costs by hiring trainees, paying less per hour, and keeping them as “part time”, to avoid full time status for pay and benefits. There was no promise of full time employment. Several left the program because of finding full time employment elsewhere. None of those remaining when the program was ended were hired full time. The jobs they performed were the same jobs full time employees performed, only for less pay
and fewer hours. The ALJ calculated AWW using a 40 hour week finding that in such a situation, the unique facts and circumstances of the work, including the temporary nature of the employment, is based upon the employee’s earning CAPACITY, not the employee’s actual earnings. Perkins performed the same jobs as full time employees who worked 40 hour weeks.
Procedural History: Cox appeals from the award of benefits to Perkins asserting that the ALJ’s calculation of AWW utilizing a 40-hour work week was not supported by substantial evidence.
Issues: Was utilizing a 40 hour work week for a part time employee who worked 29 hours per week supported by the evidence?
Holding: Yes
Reasoning: The AWW should not be based on an experimental program designed by the employer to avoid paying benefits. Part time workers left to find full time employment. 65-75% of the company’s 350 workers were manual laborers just like Perkins, and “just a few” were in the experimental program. The ALJ MUST take into consideration the unique facts and circumstances of
each case. The time for appeal of this important case has not yet run.
Disposition: Affirmed
ALJ: Hon. Otto Daniel Wolff IV

Case Name, Citation, Author: Fresenius Medical Care Holdings v. Genevieve Noble; No. 2015-SC-000135-WC; This is an unpublished decision of the Supreme Court without a listed author. RENDERED 12/17/2015.
Facts: Noble was a dialysis nurse for Fresenius who traveled to different facilities. The job was physically demanding. Noble’s Form 101 filed 12/27/11 alleged a cumulative trauma for which she
was referred to Dr. Elmer Dunbar on 3/8/10. She also alleged work injuries on 4/26/11 and 8/9/11. She admitted that she did not inform Fresenius until either February or March, 2011 when she inquired as to how to file a workers’ compensation claim. She alleged that no physician informed her prior to when she approached Fresenius in 2011 that her lumbar injury was potentially
related to her employment. The ALJ dismissed the cumulative trauma injury claim for notice. The WCB vacated and remanded on this issue, as it held there was insufficient findings made by the ALJ. Fresenius then appealed to the COA, which affirmed the WCB.
Procedural History: Fresenius appeals a COA decision which affirmed a WCB opinion that vacated and remanded the dismissal of one of Noble’s claims for compensation. Fresenius argues that the WCB erred by vacating the dismissal of Noble’s cumulative injury claim which she stated occurred on 3/8/10 because she did not give due and timely notice.
Issues: Did the ALJ make sufficient findings concerning the notice issue?
Holding: No
Reasoning: The findings were inadequate because this is a cumulative trauma claim, and the ALJ should have first determined if Noble suffered an injury. If so, what is the date of manifestation (usually the date she was informed by a physician that the injury is work related). After determining the date of manifestation, the ALJ can then analyze if notice was timely provided.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Jeff Pace v. Kentucky Darby Coal Co. Inc.; 2015-SC-000137-WC; This is an unpublished Supreme Court opinion with no listed author. RENDERED 12/17/2015.
Facts: The facts are brief and limited. Pace was injured on November 9, 2001. Darby paid Pace TTD from 11/15/2001 through 5/9/2011 (almost 10 years). There was evidence Pace may have worked on and off from 2006 thru 2010. Dr. Martin Fritzhand performed a review of Pace’s medical condition and records. He placed Pace at MMI in January, 2006, without specifically stating
why. The ALJ awarded PPD benefits to run for 520 weeks from January, 2006, with a credit for overpayment of TTD after January 1, 2006, against past due PPD.
Procedural History: Pace appeals a COA opinion affirming the WCB that he reached MMI by January, 2006.
Issues: Was there evidence to support the MMI date of January, 2006?
Holding: Yes
Reasoning: The doctor’s failure to state why he found Pace at MMI in January, 2006 does not mandate rejection of his opinion. His report was sufficiently thorough.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Michelle Rahla v. Medical Center at Bowling Green; 2014-SC-000236-WC; Minton (THIS IS A PUBLISHED SUPREME COURT CASE) RENDERED 3/17/2016
Facts: Rahla applied for employment, and was accepted, contingent on passing a physical examination and a substance-abuse screen. She passed the exam, but later alleged a neck injury sustained while lifting during the exam. She had received confirmation of her employment AFTER the exam was completed.
Procedural History: The claim was rejected at the ALJ, WCB, and COA levels.
Issues: Does the Act cover an injury sustained during a physical examination performed as a condition precedent to employment?
Holding: No
Reasoning: This was not a “try out” period, which under Kentucky law would be compensable. The Court relied on Honaker v. Duro Bag Manufacturing Co., 851 S. W. 2d 481 (Ky. 1993) in which the Court held that if employment is contingent upon a pre-employment examination, that individual is not covered as “employed” until the examination is complete.
Disposition: Affirmed
Supreme Court Panel: All sitting, all concurring
ALJ: Hon. Jeannie Owen Miller

Case Name, Citation, Author: REM Company, Inc. D/B/A Articlean v. Robert Cummins; No. 205-SC-000426-WC; This is an unpublished Supreme Court decision with no listed author. RENDERED 6/16/2016.
Facts: Cummins had back injuries in 2004 and 2009, both of which were surgically repaired. For the 2004 injury, Dr. Timothy Kriss performed a two-level, left-sided, unilateral L4-L5 and L5/S1 discectomy surgery. For the 2009 injury, Dr. James Bean performed a rightL4/L5 lumbar discectomy. Both times Cummins RTW without restrictions. His 2009 injury resulted in a settlement with REM which included a waiver of his right to future medicals. This injury to the lumbar spine occurred in June, 2011. He saw Dr. James Bean who diagnosed recurrent disc herniation and recommended surgery. Dr. Bean concluded that this injury was different from the 2009 injury as they were on different sides. REM filed Dr. Daniel Agnew who believed there was no indication that Cummins suffered a new injury. This injury was related to the 2009 injury. Dr. Timothy Kriss, who performed the first surgery, thought this was work-related
to the 2011 injury. In an Interlocutory order, the ALJ ordered TTD and medicals, including surgery. In a petition for reconsideration, Dr. Kriss changed his mind and concluded the injury was degenerative and not work-related. The petition was denied. Dr. Bean then testified that 25% of Cummins 2011 injury was related to the 2004 surgery, 25% to the 2009 surgery, and 50% to the 2011 injury itself. PPD was awarded based on a 21% functional impairment rating. Individual ratings were not available.
Procedural History: REM appeals the COA decision which affirmed the WCB and ALJ granting benefits to Cummins. REM argues the ALJ erred by not applying the direct and natural consequence rule and that Cummins’ claim should have been barred.
Issues: Should the direct and natural consequences rule, as it would apply to the 2004 and 2009 injuries, be applied in this matter to bar the claim?
Holding: No
Reasoning: The ALJ clearly stated that based on Dr. Bean’s opinion, Cummins 2011 injury is different from his 2009 injury, and the evidence supported a finding that a new injury occurred.
Clearly, REM was using this argument to deny benefits since Cummins had waived future benefits after the 2009 injury.
Disposition: Affirmed
ALJ: Hon. Scott Borders

Case Name, Citation, Author: Commonwealth of Kentucky, Uninsured Employer’ Fund v. Morgan Crayne and Piper Logging; No. 2016-CA-000284-WC; Clayton (TO BE PUBLISHED) RENDERED 9/30/16.
Facts: Crayne worked for Piper logging, who was uninsured, alleging injuries to his low back when he stepped on a copperhead snake, and jumped away, landing awkwardly and, then, later that day when his seat lunged forward while he was making a delivery. Crayne says he told the owner of both occurrences. He stated his wages were $100.00 per day, and he was paid by both check and cash. Crayne testified he worked 6 days per week, but the owner said only worked 3 days. The ALJ determined 3 to 4 days. The ALJ found AWW at $350.00 for Crayne, who was found to average 3 to 4 days per week for the 13-week period preceding the injury. Conservative treatment surgery was performed 7 months after the injury when he had obtained Kentucky Medicaid.
Procedural History: UEF files this appeal from the WCB decision affirming the award of the ALJ. UEF disputes that the injury was work-related, that adequate notice was given to the employer, and the AWW was determined properly.
Issues:
1) Was there substantial evidence that the injury was work-related?
2) Was AWW properly calculated, or did the ALJ merely speculate?
3) Was due and timely notice given?
Holding:
1) Yes
2) Yes
3) Yes
Reasoning:
1) The testimony of Crayne, two co-employees, and all the medical providers’ diagnoses and reports confirmed the work-related injury.
2) The $100.00 per day was agreed upon. Given that the employer did not provide the required paperwork, the ALJ had only the testimony of Crayne, the owner, another employee, plus copies of Crayne’s checks. Based on this the ALJ opined an average of 3 to 4 days per week, and he found he earned $350.00 per week. Substantial evidence supports this.
3) Medical records showed that Crayne reported having an accident on 4/17/13, and he was consistent about the date of injury. Co-employees testified and the owner was present on the date of injury. Crayne missed a couple weeks’ work after the injury. Damaging was the report of the investigator for the UEF whose report stated that the owner said he was aware of the injury on the date it occurred, and offered to take Crayne to the hospital if he would undergo a drug test.
Disposition: Affirming
Court of Appeals Panel: Clayton, Combs, and Stumbo
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author: Cross Maintenance LLC v. Mark Riddle; 2015-SC-000299-WC; This is an unpublished Supreme Court case without a listed author. RENDERED 3/17/2016.
Facts: Following the evidentiary hearing, the parties engaged in ongoing settlement negotiations. All of the offers were in writing, and correspondence was via e-mail. The items
were detailed, and the parties were racing against the clock because of the looming ALJ’s expected opinion. On November 22nd, Attorney U’Sellis sent the ALJ an email asking that he delay
his decision, believing a settlement could be reached. Unbeknownst to the parties, that decision was rendered on November 21st. The terms of the award were not disclosed in the opinion.
Subsequent correspondence would seem to indicate a settlement had been reached. Plaintiff’s attorney prepared the Form 110, and sent it to U’Sellis. U’Sellis refused to sign, indicating he was no longer authorized by Cross to do so, and that he had reconsidered his position that the parties had an enforceable agreement. Attorney Evensen filed a motion to enforce the agreement. The ALJ reopened proof, limiting the evidence to whether there was a meeting of the minds. The ALJ entered an opinion and order sustaining the motion to enforce the settlement.
Procedural History: Cross and Riddle cross appeal concerning whether or not there was an enforceable settlement agreement. The COA affirmed the WCB order on Remand for the ALJ to determine whether the correspondence memorializes all of the terms of the settlement agreement. If so, he is to enter specific findings of fact setting forth the essential terms of the agreement. If they did not reach a full and final resolution of all disputed issues, the ALJ shall provide the findings of fact in support of his decision. Further, then, he shall reinstate the provisions of his November 21st, 2013 Opinion and Order.
Cross argues there was not an enforceable agreement because:
1) The ALJ rendered an opinion and award before the parties reached an agreement and thus KRS 342.285(1) made his findings binding on all the parties;
2) The ALJ’s opinion and award was unbeknownst to the parties while the negotiations were ongoing creating a mutual mistake of fact;
3) The parties’ failure to negotiate when the weekly payments would commence shows the settlement agreement was incomplete and therefore unenforceable.
Riddle argues it was error to remand to the ALJ to determine if the settlement agreement reached between the parties was for a complete dismissal of all rights.
Issues:
1) Were the parties bound by the ALJ’s decision since they were unaware of it before they entered into a settlement, and there the terms of the settlement cannot be enforced?
2) Was there a mutual mistake of fact because the parties did not know an opinion had been entered?
3) Did the failure to indicate when weekly benefits would begin render the agreement unenforceable?
4) Did the agreement call for a complete dismissal of the claim?
Holding:
1) No
2) No. It was not evident that Cross is being held to different terms than those expressed in correspondence between the parties.
3) No
4) To be determined on remand.
Reasoning:
1) KRS 342.285 does not prevent the parties from entering into a settlement after the ALJ has ruled.
2) If there is insufficient correspondence for the ALJ to make findings regarding settlement concerning how long medical benefits were to remain open, and, if the settlement was in exchange for a full waiver of Riddle’s rights, and, those terms are material to the agreement, the WCB has instructed that the original Opinion and Award of the ALJ be reinstated.
3) This is inconsequential. It should be presumed the benefits started upon approval of the settlement.
4) This shall be determined by the ALJ on remand.
Disposition: Affirmed
NOTE: This opinion should be read to see the detail in the offers or counteroffers that were made. Also, this hearing was held on October 23rd, and the opinion issued on November
21st. Do not assume that the ALJ will take the entire 60 days to do his decision.
ALJ: Hon. William Rudloff

Case Name, Citation, Author: Dana Corporation v. Martin Roberts; No. 2015-SC-000476-WC; Unpublished Supreme Court with no listed author. RENDERED 6/16/2016.
Facts: Roberts sustained his low back injury on September 21st, 2001 and a 23% settlement was approved on February 5th, 2004. On February 11th, 2011, Roberts filed a MTR for TTD and medicals which was sustained. TTD and medicals for a surgery were then ordered. Dr. David Rouben had performed an MRI which showed a worsening of Roberts’ condition. He performed an undisclosed surgery in November, 2011. On April 10th, 2013, Dana filed a motion to terminate TTD benefits based on Dr. Ellen Ballard’s November, 2002 IME which had concluded MMI.
On May 23rd, 2013, Roberts filed a MTR for Increased Impairment, Changed and Worsening of Condition, and Total Occupational Disability. He alleged Dr. Rouben had originally assigned him a 23%, and now was a minimum 25%, and that his condition had worsened since he had to undergo the additional surgery. The ALJ overruled Dana’s Motion to Dismiss based on the statute of
limitations. KRS 342.125(3). Her decision was based on Hall v. Hospitality Resources, Inc. 276 S. W. 3d 775 (Ky. 2008). Hall stated that for the purposes of KRS 342.125(3), any order which grants or denies benefits tolls the statute of limitations. The ALJ order reopening the claim, and awarding TTD and medicals, restarted the four-year period in which one may move to reopen a
claim. The award and subsequent appeals followed.
Procedural History: Dana appeals a COA opinion that affirmed an award of PTD to Martin Roberts, arguing that Roberts’ motion to reopen was untimely filed.
Issues: Was the MTR timely filed?
Holding: Yes
Reasoning: Refusing to overturn Hall, the Supreme Court held that the “original award or order,” as used in KRS 342.125(3), indicates that the statute of limitations runs from either the original award or any order thereafter which grants benefits.
Disposition: Affirming
ALJ: Hon. J. Gregory Allen

Case Name, Citation, Author: Flagship Transportation LLC v. Estate of Cory Keeling, and, Administratrix Mindy Keeling; 2015-SC-000648-WC; This is an unpublished opinion of the Supreme Court and has no listed author. RENDERED 8/25/2016.
Facts: These are simple facts. Cory Keeling died on April 19th, 2013 as a result of a MVA. Mindy was appointed Administratrix on May 6th, 2014, about one year later. A settlement agreement was reached for benefits, but the parties could not agree from which date interest was to be paid from. The ALJ entered an award which held interest was payable from date of death. Procedural History: Flagship appeals a COA decision which affirmed the imposition of interest on a past-due lump sum death benefit granted to the estate. Flagship argues the ALJ erred in awarding interest on these benefits from the date of death, instead of date that Mindy became Administratrix. It is not until that time because until then, there is no representative to receive the payment.
Issues: Was interest on the past due death benefits due from date of death or from the date the Fiduciary is appointed?
Holding: Date of Death
Reasoning: The statute, KRS 342.730(6) does not state an exact date upon which benefits are to be paid, only that benefits are to be paid to “decedent’s estate”. An estate consists of all property owned by the decedent at the date of death, and not when the Administrator is appointed. The lump sum benefit became part of his estate when he died. Interest is due from that date.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: Ford Motor Company (LAP) v. Lavern Frank Deeds; WCB No. 201594472; Alvey. Entered 9/30/2016.
Facts: Deeds alleged bilateral carpal tunnel syndrome as well as cubital tunnel syndrome from his work at Ford. He had surgery on the left by Dr. Huey-Yuan Tien, but declined on the right. Deeds later withdrew the cubital tunnel claim. Deeds no longer works for Ford, and earns less. He continues to experience symptoms in both hands (right more than left). He does not believe he can do his pre-injury job. Dr. David Tate originally treated Deeds, found his condition work-related, put him on restrictions, but did not recommend surgery. Ford filed Dr. David Palmer-Ball who indicated that Deeds had CTS “which may be somewhat related to his job,” and also diagnosed renal insufficiency and hypothyroidism.
Dr. Richard Dubou found surgery was necessary, but the conditions were not work-related, finding it was most likely a systematic condition. He did note that automobile assembly line work is one of the three most common occupational causes of CTS. He assigned 2% to the left for the procedure, but it was not work-related. Deeds filed Dr. Jeffery Fadel. In his original report he diagnosed CTS and Cubital tunnel syndrome caused from hypothyroidism and work. Specifically he found the cubital tunnel a result of the hypothyroidism and the CTS the result of both, to be apportioned 50/50. He assigned 13% for the RUE, 7% to Ford, and 6% to the hypothyroidism. No MMI yet for the left. In a later report, he assigned 6% to the left, of which 3% was work related. This was a combined 10% for work related. The ALJ accepted Dr. Fadel’s testimony and completely rejected that of Dr. Dubou. Dubou was the only doctor of all those that saw or examined Deeds to find absolutely no correlation between work and CTS.
Procedural History: FMC appeals from an award of TTD, PPD, and medicals for bilateral carpal tunnel syndrome, arguing that Dr. Jeffery Fadel’s opinion regarding causation does not constitute substantial evidence supporting the ALJ’s decision.
Issues: Did Dr. Fadel’s opinion regarding causation constitute substantial evidence supporting the ALJ’s award for bilateral carpal tunnel syndrome?
Holding: Yes
Reasoning: Fadel’s testimony took into account the hypothyroidism and apportioned the liability. All of the medical experts except Dubou found some work–related component. Dubou, while acknowledging the risks of auto assembly workers, offered no explanation of why work was not a component at all.
NOTE: The ALJ was openly critical of Dubou, and referenced his extensive discussions with the adjuster prior to his initial examination, both about the type of work performed, and Deeds’ circumstances for leaving Ford. The ALJ noted “his apparent attempt at cross-examination damages his credibility in my mind…his aggressiveness in this regard makes me fear that his objectivity may have suffered due to an evident dislike for the examinee.” The WCB did not comment.
Disposition: Affirmed
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: Ford Motor Company (LAP) v. Ross A. Burt; 2015-SC-000376-WC; This is an unpublished Supreme Court case with no
listed author. RENDERED 3/17/16.
Facts: Burt worked at Ford since 1995. In December, 2001 he was assigned to a job called the right speaker job. In March, 2012, he went to Ford clinic with complaints, but was told it was not work related. On August 23, 2012 Burt was examined by Dr. Christopher Shields who related the pain to work. Surgery was performed to the RUE, and he was taken off work. Burt submitted records from the Ford Clinic, Norton Immediate Care, Dr. Shields, Dr. Iyer, Dr. McKiernan, and Dr. Todd Shanks in support of his claim. A report from Dr. Warren Bilkey diagnosed bilateral ulnar neuropathy, ulnar decompressive surgery and residual neuropathy of both extremities. All were work-related, and he was unable to do all pre-injuries duties. He assigned 19%. Ford introduced Dr. Richard Dubou who examined Burt for Ford. Originally he found no work injury or impairment rating, but later amended to assign 5%, but not work related. The ALJ found Bilkey more persuasive than Dubou and assigned 19%, and awarded the 3 multiplier. He did not do a Fawbush analysis because he did not believe the two multiplier was applicable since Burt did not return to same or higher rate of pay after his work-related injury. Ford wanted the ALJ to use Dubou because it was done 6 months after Bilkey, was newer, and reflected medical improvement that Burt had made. It also questioned Bilkey’s calculations saying he did not properly use the Guides. Ford questioned the 3 because Burt had voluntarily transferred jobs, and his hourly rate now was higher than pre-injury, and Fawbush should have been applied.
Procedural History: Ford appeals the COA decision which affirmed the WCB and ALJ assigning Burt a 19%impairment rating for work injuries to his upper extremities, and enhancing the award by “3”.
Issues:
1) Should the ALJ have used Dubou instead of Bilkey?
2) Should Fawbush have been applied?
Holding: No, to both.
Reasoning: The fact that Dubou did his exam after Bilkey did not discredit Bilkey. Significantly, Ford did not cross examine Bilkey as to how he arrived at 19%. Further, the Court noted that the 5% assigned from Dubou was for a condition he found to be non-work related. There was sufficient evidence to find that Burt could not return to former work. The analysis under Fawbush must focus on the worker’s AWW, not his hourly rate. The calculation requires an analysis of Burt’s earnings over a 52-week period, and the identification of his “best” quarter.
Disposition: Affirmed
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: John Fuertes v. Ford Motor Company; 2015-SC-000268-WC; All Concur, All Sitting (THIS IS A PUBLISHED SUPREME
COURT CASE) RENDERED 2/18/2016.
Facts: Fuertes sustained an injury, however, before his claim could be resolved he was fired for “performance related issues”. Fuertes claims he was terminated because of his work related injuries, specifically, he missed a lot of work to undergo rehab or PT, and, he was under work restrictions which limited his ability to perform. Since the ALJ award and order on reconsideration, the Supreme Court reversed Chrysalis House, and issued its opinion in Livingood.
Procedural History: This appeal follows a COA decision which affirmed the ALJ’s finding that the award of the Plaintiff should not be enhanced by the 2 multiplier.
Issues: Was a finding made by the ALJ that Plaintiff’s conduct at Ford satisfied the new standard under Livingood to justify the denial of the 2 multiplier.
Holding: No
Reasoning: The ALJ needs to make a finding as to whether Fuertes engaged in conduct as outlined in Livingood that led to the reduction of hours he worked and ultimate termination.
Disposition: Reversing and Remanding
ALJ: Hon. James Kerr

Case Name, Citation, Author: James Halcomb and Johnnie Turner v. American Mining Company; 2015-SC-000335-WC; This is an unpublished Supreme Court opinion without a listed author. RENDERED 5/5/2016.
Facts: Halcomb suffered work related injuries to the back, left hip, and muscular in 2003. He settled his claim for a lump sum but did not waive medicals. Neither the amount nor the rating was disclosed in the opinion. This is a MFD concerning his prescriptions. Dr. Jose Echeverria prescribed narcotic pain medication Lortab as part of his treatment. American requested random drug screen, the most recent KASPER review, and random pill count monitoring. However, Echeverria only did the drug screen, which revealed that Halcomb tested positive for an active
component of marijuana. Dr. Ring Tsai recommended drug screens, counselling and an agreement to remain negative for illegal or non-prescribed controlled substances. Long term
opioid therapy for chronic pain is not recommended. Dr. William Nemeth said to take him off Lortab. Three positive drug screens indicated he was actively using marijuana, not second hand exposure. Halcomb filed two negative drug screens. Dr. Echeverria said that the Lortab provided relief.
Procedural History: Halcomb appeals a COA decision which affirmed a MFD in favor of American Mining Company. The ALJ found that American Mining is no longer liable to pay for Halcomb’s narcotic medication prescription.
Issues: Was the decision of the ALJ supported by substantial evidence?
Holding: Yes
Reasoning: The ALJ’s finding that Halcomb was using marijuana was supported by 3 failed drug tests, and Dr. Nemeth’s opinion. In addition, the Court stated that 201 KAR 9:260 §5(4)(k) supported the ALJ’s decision. This regulation provides that during the course of long term prescribing or dispensing of a controlled substance the physician shall utilize drug screens in
a random and unannounced manner at appropriate times. In the event the patient is noncompliant, there are rules for the physician to follow.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Jerry Drexal Moore v. United Parcel Service; WCB No. 199407153; Alvey. OPINION ENTERED 9/23/2016.
Facts: Moore sustained injuries to his cervical spine and right shoulder in 1993 and 1995, respectively. His case was settled by agreement approved April 8, 1997. Previous
MFD were resolved in his favor concerning PT and prescriptions. This MFD concerned the reasonableness/necessity of oxycodone/acetaminophen, Tramadol, Diazepam, Zolpidem Tartrate, and Metaxalone, all prescribed by Dr. Karen Saylor. A Peer Review of Dr. Paul Loubser denied the use of these drugs, and, importantly, found there had been no recent exacerbation of chronic pain or a recent acute injury. Reports from Drs. Bachar Kassem, John Allen, and El-Naggar all supported Moore. Dr. Saylor, the treating doctor, also supported Moore, but referenced in her report,
lumbar pain, as did El Naggar. Moore claims the ALJ failed to consider records from previous MFDs that referenced the lumbar pain, and that these records and findings extended the claim to the lumbar spine. However, LUMBAR PAIN WAS NEVER LISTED in the settlement agreement, nor was the causation of the lumbar pain adjudicated in prior decisions. The records do not establish treatment or complaints regarding a low back condition at the time of the subject work injuries.
Procedural History: Moore appeals from the MFD opinion finding contested medical expenses were not work-related, reasonable or necessary. He argues res judicata to issues previously decided and the ALJ failed to consider all the evidence, thereby depriving him of due process.
Issues:
1) Did res judicata apply to this case because of prior rulings?
2) Did the ALJ overlook or fail to consider evidence in her findings?
Holding: No, to both.
Reasoning:
1) Res Judicata has limited effect in MFD cases because medical benefits necessarily relate to an employee’s evolving physical condition. The subject matter is not identical simply because it relates to the same injury or body part. Finally, the lumbar condition was never an issue in prior disputes, and was never a part of any previous decision.
2) There was no medical evidence of treatment for the lumbar spine contemporaneous with the alleged injury dates. The evidence in prior disputes was not helpful to this case. The record falls far short of compelling a finding that the lumbar condition is related to these injuries.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Toyota Motor Manufacturing Kentucky Inc. v. Jason Tudor; 2015-SC-000381-WC; Keller (THIS IS A PUBLISHED CASERENDERED
6/16/16).
Facts: Tudor claimed work-related cumulative back injuries beginning on March 23, 2010 December 23, 2010, and April 16, 2012. Following his last injury, Toyota denied the March, 2010 injury based on the statute of limitations, and the December 2010 and April 2012 injuries as not being work related. Toyota had not filed any documentation with the DWC concerning Tudor’s
injuries. The TPA indicated that the forms were not filed because Tudor had not missed any time from work on the first injury. The TPA denied the others as non-work related.
Tudor was seen in Toyota’s in-house medical facility (IHS) following the first injury. Despite MRI findings of herniation’s, Tudor was advised he had degenerative disc disease, stenosis and bulging, and was not candidate for surgery. Dr. Guarnaschelli saw him and diagnosed disc herniation’s and assigned 5%. The ALJ found all injuries work-related, and awarded 5%, enhanced by the 3, as well as TTD. There was no finding concerning post-injury wages. Toyota failed to meet its burden on the untimely filing for 2 reasons: 1) the physicians at Toyota misled Tudor as to the nature of his condition; 2) Tudor was entitled to TTD for his restricted duty, and Toyota was not paying those benefits, and had not notified the WCB it was not paying these benefits. These led to an equitable tolling of the statute. The COA affirmed the WCB and the ALJ’s finding that Toyota failed to adequately inform Tudor of his condition.
Procedural History: The ALJ awarded benefits. The WCB and COA affirmed.
Issues:
1) Did the ALJ correctly apply Czarecki to the facts of this case?
2) Was the decision on TTD proper?
3) Was the enhancement by “3” appropriate?
Holding:
1) No
2) No.
3) Both yes and no.
Reasoning:
1) An employer can be equitably barred from asserting the statute of limitations as a defense in two relevant circumstances: if the employer’s in-house physician incorrectly advises an employee that a repetitive trauma injury has resolved, Toyota Motor Manufacturing v. Czarnecki, 41 S. W. 3d 868, (Ky. App. 2001) and if the employer fails to file certain reports mandated by KRS
342.040(1), City of Frankfort v. Rogers, 765 S. W. 2d 579 (Ky. App. 1988). Not every doctor diagnosed “herniated” discs. Some said bulging, and the ALJ did not make a specific finding as to whether he found the condition to be bulging or herniated, therefore Toyota did not mislead Tudor on his “true condition”. Before the ALJ can make a finding that Tudor was misled he must determine what the condition was. Czarnecki may apply, but the ALJ must clear up his misunderstanding of the evidence as to what the “true condition” was.
2) Trane v. Tipton, now the leading case on TTD, came out after this case. The ALJ must make a decision following those rules. If Toyota should have paid TTD, then the City of Frankfort v. Rogers analysis needs to follow.
3) The evidence supports the “3”, however, the ALJ failed to make a finding concerning Tudor’s post injury AWW. The ALJ does not need to make any findings regarding the likelihood that Tudor will continue to earn the post injury wage until he determines what the wage is.
Disposition: Vacating and Remanding                                                                                                                                                                                                                                                                            Supreme Court: All Sitting; Wright and Noble Dissent
NOTE: In a dissent, Justice Wright, joined by Justice Noble, argued that even if the Toyota doctor disagreed with the MRI report she was still obligated to inform Tudor of the potential herniation’s. The ALJ was not required to make a specific finding. Toyota’s failure to disclose the potential condition was enough to toll the statute of limitations.

Case Name, Citation, Author: Uninsured Employers Fund v. Poplar Brook Development, et al; 2015-SC-000658-WC; Unpublished Supreme Court case
without Listed Author. RENDERED 9/22/2016.
Facts: PBD was an LLC formed by Terry, Negroe, and Tobiason to develop a subdivision. It purchased the land and developed infrastructure. It did not
build houses. Negroe purchased a lot and hired Terry as a project manager. He, in turn, hired Baker to assist. Baker, in turn, hired Hannah. Hannah had previously worked for PBD in the infrastructure job. PBD opened an account at a lumber yard for the construction. Hannah sustained an injury when he fell from a ladder on February 27th, 2004. On bifurcation, the ALJ found Terry to be the employer (he was uninsured), and on December 21st, 2004 approved an agreed order among the UEF, Hannah, and Terry which provided that UEF would pay TTD in the amount of $266.66 per week until “terminated by the order of the (ALJ).” Medicals would be paid until MMI. The claim was placed in abeyance. In July, 2006, the ALJ requested a status report. Hannah responded he was not at MMI. UEF filed Dr. Shraberg, who said MMI, but no motions to terminate TTD were filed. UEF continued to pay. In July, 2007 UEF filed Dr. Timothy Kriss, and again, on September 12, 2012, when he stated Hannah was at MMI on February 27th, 2005. UEF still continued to pay. In October, 2012, Negroe filed a motion to terminate TTD, based on Dr. Kriss.
The motion was sustained on October 19th, 2012. The ALJ found Terry was the employer, relieving everyone else. UEF was to pay, and the ALJ found Hannah at MMI on February 27th, 2005, ending his entitlement to TTD. The ALJ awarded UEF a dollar-for-dollar credit against Hannah’s PPD award of 5% for any overpayment of TTD made after that date. The COA agreed that Terry was the employer, and, that Hannah reached MMI on February 27th, 2005 but disagreed that the UEF was entitled for a dollar-fordollar credit for any overpayment of TTD benefits from that date. The COA found that since the agreed order stated that the ALJ had to enter an order to terminate the UEF’s payment of TTD benefits to Hannah, and no such order
had been entered, the UEF was not entitled to discontinue payment of the benefits until that order was entered.
Procedural History: UEF appeals a COA decision which affirmed the finding that Poplar Brook Development, Barbara Negroe, and Calvin Baker were not responsible to pay for Hannah’s WC award. The COA also held that Hannah did not have to reimburse TTD benefits paid to him after he reached MMI based on the terms of an agreed order entered into with the UEF and Terry.
Issues:
1) Were Negroe, Baker, and PBD responsible for WC benefits as “up the ladder” employers?
2) Was the UEF entitled to a dollar-for dollar credit for overpayment of TTD after Hannah was found to be at MMI on February 27th, 2005?
Holding: No, to both.
Reasoning:
1) There is no evidence that PBD was in the regular and recurrent business of constructing houses, or that construction of houses was customary or normal to PBD business. It only developed a subdivision which would sell lots to customers to build their own houses.
2) In a normal claim, once Hannah reached MMI he would no longer be entitled to TTD benefits. However, the parties agreed that Hannah would receive TTD benefits until the ALJ issued an order stopping those benefits. Thus, Hannah was entitled to those benefits by agreement of the parties until the ALJ rendered his order on October 19th, 2012 terminating those benefits.
NOTE: If there is an order directing TTD benefits to be paid, those benefits can only be terminated by order. This opinion would seem to indicate that you will not be allowed to recoup overpayment from the date of MMI until the order terminating.
Disposition: Affirmed
ALJ: Hon. J. Landon Overfield

Case Name, Citation, Author:  Truitt Brothers, Inc. v. Haley Morris Mullins WCB No. 201391477
Facts: Briefly, Mullins sustained a right shoulder injury which required surgery. At some point following the injury she was transferred to a quality control position where some work was repetitive, but no heavy lifting. In this position, coworkers assist, and the employer works with her restrictions. “For the most part”, the new job met her restrictions.  The ALJ found the three multiplier applied stating “the Plaintiff is unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of the injury for the indefinite future.”
The ALJ had found that Mullins satisfied the first two prongs of the test: 1) Her job at the time of the injury required heavy lifting, up to 60 or 70 pounds, and her restrictions were no overhead above 10 pounds, and in general, no lifting over 20 pounds; and 2) She had returned to a job at an average weekly wage equal to or greater than her pre-injury wage, based on Mullins’ testimony and post-hearing wage information agreed upon by the parties.
Procedural History: Award of TTD, PPD, and Medical.
Issues: Did the ALJ fail to perform the requisite analysis regarding the third prong of the application of the three multiplier in Fawbush?
Rules: KRS 342.730(1)(c)1; Fawbush v. Gwinn
Reasoning: The conclusory statement is insufficient and does not specifically cite to the evidence upon which the ALJ relied in reaching the determination.  Plaintiff had also testified the employer had worked with her since the injury and she did not see any reason in the near future why she would not be working.
Disposition: Affirmed in part, Vacated in part, Remanded
ALJ: Hon. Jeannie Owen Miller

Case Name, Citation, Author:  TKT Trucking v. Michael Perkins, WCB No. 201401857 & 201399354; Stivers
Facts: Perkins sustained a right shoulder injury and also alleged a cumulative hearing loss as well as a work related hearing loss due to trauma.
The facts on the shoulder are simple. Dr. Leith was the treating MD. Attached to the Form 101 filed by Perkins was a letter concerning a disability impairment rating from Premier PT, authored by Hammond, a PT, the evaluator. He notes a referral to the clinic for an impairment rating under the Guides requested by Dr. Leith, who had provided the diagnosis, a listing of subjective complaints and objective data he obtained consisting of range of motion measurements for the shoulder.
Unfortunately for Perkins, he did not introduce a document on the form of a report, note, or letter from Dr. Leith in which he adopted Hammond’s evaluation and impairment rating.
The ALJ also relied upon a University Evaluator for the hearing loss to apportion liability. Dr. Eisenmenger assigned a 20% PI as a result of the hearing loss, but could not apportion the rating between the cumulative trauma and the traumatic event. Note that it did exceed the necessary 8%.
Procedural History: ALJ awarded PPD and future meds for the shoulder injury, and also found a work related hearing loss, but only awarded medical benefits for cumulative hearing loss. There were two separate carriers for the hearing loss, and the trauma loss was settled separately.
TKT challenged the impairment rating on the shoulder, PPD, MMI, and the failure to apportion medicals on the hearing loss.
Perkins appeals for failing to award income benefits on the hearing loss.
Issues: Did the ALJ properly use the AMA Guides when the rating was prepared by a PT, and the MD did not officially adopt the rating? Should an award of income benefits for the hearing loss have been entered? Should meds on the hearing loss be apportioned?
Holding: Rating should not have been used.  Income benefits should have been awarded. No apportionment on the hearing loss.
Rules: Kentucky law mandates an impairment rating must be assessed by a licensed physician. Since Perkins did not introduce a document in the form of a report, note, or letter from Dr. Leith in which he adopted the PT’s evaluation and impairment rating, the ALJ could not rely upon the impairment rating of the PT as if it were Dr. Leith’s.  He also could not rely upon it for purposes of determining MMI. The ALJ was not required to now rely upon the opinion of Dr. Jenkinson.
On the hearing loss, KESA, as the last insurer (even though just 6 weeks) as the last employer with whom the worker was injuriously exposed to hazardous noise shall bear he entire liability for the hearing loss.
The only other evidence of an impairment rating was Dr. Jenkinson, who concluded under the Guides that Perkins did not have a rating. The ALJ was not required to rely on and use Jenkinson’s report. A finding that Perkins had failed to meet his burden of proof was sufficient to deny benefits.
Dr. Eisenmenger firmly established the 20% impairment rating for the hearing loss, caused solely by the traumatic event, repeated exposure, or both, and therefore Perkins is entitled to income benefits.  
Disposition: The 7% rating and PPD award is reversed. The finding of the date of MMI, TTD, and future meds is vacated.  Case remanded to determine date of MMI, TTD, and if future meds for the shoulder are warranted.
The portion of the award denying income benefits for the hearing loss is vacated. Case remanded for entry of opinion and award determining the impairment rating attributable to repetitive exposure to hazardous noise in the workplace.
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Tin Man Manufacturing, Inc. v. Burton, et al; No. 201101375; Alvey
Facts: The facts of this 45 page opinion are simply too convoluted to try to explain. Suffice it to say the facts all revolved around whether a joint venture existed among the four parties, when nothing was in writing, and everyone at some point appeared to be intertwined with one another.
This case gives the opportunity for the WCB to again go over the requirements for a joint venture which will be outlined below.
The ALJ found all the Defendants were engaged in a joint venture during a project when Burton was injured. The ALJ awarded Burton TTD, PPD, and medicals, jointly and severally against the members of the joint venture.
Procedural History: Original Opinion appealed to WCB which vacated and sent back to ALJ.  ALJ Bolton entered another opinion, it is appealed to the WCB, and this decision follows.  It is again being sent back to the ALJ.
Issues: Did a joint venture exist?
Holding: No.  Returned again for decision and findings.
Rules: A joint venture is “an informal association of two or more persons, partaking the nature of a partnership, usually, but not always, limited to a single transaction in which the participants combine their money efforts, skill and knowledge for grain, with each sharing in the expenses and profits or losses.” Eubank v. Richardson 353 S.W. 2d 367
Four elements are required in order for a joint enterprise to be present.  They are: 1) an agreement, express or implied, among the members of the group; 2) a common purpose to be carried out by the group; 3) a community of pecuniary interest in that purpose among the members; 4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Huff v. Rosenburg, 496 S.W.2d 355 (1973)
As to the third element, it is necessary there be a sharing of the profits and losses. In the absence of an express agreement, the sharing of losses may sometimes be implied from an express agreement to share profits.
Reasoning:  The issue in the above case revolved primarily around the issue of profits and losses.
WCB said the evidence does not support the ALJ’s determination regarding the existence of a joint venture, or the finding of either Tin Man or All Seasons as Burton’s actual or statutory employer, the case was remanded for a determination of Burton’s actual employer, and if necessary, a determination of the statutory employer, supported by the evidence of record.   
Disposition: Reversed and Remanded
ALJ: Hon. Steven Bolton

Case Name, Citation, Author:  Dalene Stadler v. Kelly Services; WCB 201402287
Facts: Stadler injured herself performing simulation training for a job at Toyota. She was required to apply for the job through Kelly Services.  She was not paid for the test. She acknowledged she was going through a pre hire process in order to get on at Toyota.  She would have been an employee of Kelly for 90 days before Toyota. There were still other processes to go through to complete the entire application process.
Procedural History: Dismissed by ALJ
Issues: Was Stadler an employee within KRS 342.640(4)?
Holding: No
Rules: The WCB relied upon the recent Supreme Court case of Michelle Rahla v. Medical Center at Bowling Green____ s.w.3d____, 2014-SC-000236 WL 1068256 (Ky. ,March 17, 2016) (To Be Published).  There was nothing to suggest that Stadler was employed by Kelly Services when she voluntarily participated in the workday simulation assessment. She was not engaged in a “try out” or trial basis as set forth in Hubbard v. Henry, 231 S.W.3d 129
Disposition: Affirmed
ALJ: Hon. Steven G. Bolton

Case Name, Citation, Author:  Oakmont Manor v. Bonnie Baldridge; No. 198833596; Alvey
Facts: Oakwood appeals from a Medical Fee Dispute finding it responsible for Baldridge’s ER visits. Oakmont questioned the work-relatedness, reasonableness and necessity of visits to King’s Daughter Medical Center in 2014 and 2015.
A U/R report by Dr. Charles Carnel opined the visits were reasonable, but not related to the work injury of 1988, originally reported as a lumbar strain. An imaging report referenced a compression fracture at L-1. The cause was unknown.
Dr. Jenkinson performed an IME for the employer. There was no evidence that the injury of 1988 could be causing her pain, and she did not need further treatment.
Records of Dr. Bal K. Bansal were filed. He treated for low back and leg pain.  When she has such pain, or she would fail to take her medicine, her blood pressure rises from the pain, for which she had been seen many times in the ER. The compression fracture probably occurred in 1/15, but she was already having back and leg pain all the time “anyhow”.  King’s daughter record showed the admission with history of back pain for 20 years.  No history of new injury.
Each admission to the hospital included a history of 20 years of low back and a reference to the work injury.
The Notice of Appeal did not name the medical providers as Parties, but did give them notice.
Procedural History: MFD in favor of Claimant. 
Issues: Did employer prove treatment was not reasonable and necessary?  Were King’s Daughters and Greenup County EMS necessary parties to the appeal?
Holding: No to Both
Rules: The Doctors records reflected continuous treatment for virtually the same complaints over the course of treatment, whether before or after the compression fracture.
The providers filed no pleadings and failed to appear during the claim.  There was no dispute as to their claim, only who is to pay. They were not necessary parties. 
Also, the Regulation require providers to be parties to a dispute, but there is no analogous regulation for appeals.  Also, see Braden v. Republic-Vanguard 657 S.W. 2d241 (Ky. 1983)
Reasoning:  The treatment had been consistent for pain over the course of 20 years. Each time a history was given of the work injury.  The compression fracture cause unknown, did not really add to the pain.
There is no regulation requiring medical providers be added to an appeal.  Further, there was no dispute as to the provider’s rights to compensation, for services rendered, just who is responsible for payment.
Disposition: Affirmed
ALJ: Hon. Jane R. Williams

Case Name, Citation, Author:  Margie Mullins v. Leggett & Platt; CCSMI, Hon. Robert L. Swisher, ALJ and Workers’ Compensation Board; No. 2015-CA-000814-WC; (To Be Published) Thompson
Facts: Mullins agreed to accept a periodic PPD payment of $218.89 to be paid for 425 weeks with accrued back due benefits to be paid in a lump sum.
Following approval of the agreement, Mullins counsel moved for and was awarded an attorney fee of $9401.41.  In the Form 109, Attorney Fee Election, Mullins elected to pay the attorney fee in a lump sum with her remaining weekly PPD benefits to be reduced on a pro-rata basis.
CCMSI indicated that it would take credit for “attorney fee discount” pursuant to 803 KAR 25:075, which provides the formula for taking the discount. Using the formula, Mullins would receive $191.36 per week over the 373 weeks remaining in the payment benefit period. Without the discount, Mullins payment would be $193.69, a difference of $2.33 per week.
Mullins presented a myriad of reasons why the discount should not be allowed, all of which were rejected by the WCB as well as the COA. These included the repeal of KRS 342.150, Hicks v. General Refractories Co., 405 S.W. 2d734 (Ky. 1966), and that a discount could only be applied when the Special Fund was involved, citing KRS 342.320(4).  Also, the ALJ was required to make the computation, and the Form 110 Agreement did not provide that CCMSI could not withhold additional funds other than what was agreed to in the Agreement.
Procedural History: Margie Mullins appealed from an opinion of the WCB affirming an order of the ALJ which concluded that KRS 342.320(4) and 803 KAR 25:075(1) permit Mullins WC carrier to reduce her PPD benefits to recoup the present day value of the lump sum payment of attorney fees.
Issues: Do KRS 342.320(4) and 803 KAR 25:075(1) permit the WC carrier to reduce PPD benefits to recoup the present day value of the lump sum payment of attorney fees?
Holding: Yes
Rules: KRS 342.320 and 803 KAR 25:075 permit the discount. To be applied.
Reasoning: KRS 342.320 has been amended by the legislature over the years to accommodate changes in the Act, and it is presumed that it was aware of case law and decisions at the time of its amendments.  All of Mullins arguments were rejected.
Discounts are allowed under current Statute, and the regulation’s formula was proper.
Disposition: Opinion Affirming
Court of Appeals Panel: Jones, D. Lambert, and Thompson
ALJ: Hon. Robert L Swisher

Case Name, Citation, Author:  Landmark Media Publishing v. Mark Branham WCB No. 201490414, 201389996’ 20137-160
Facts: This is essentially a substantial evidence case, but is significant because Dr. Ellen Ballard’s first opinion, after reviewing records and performing an IME, agreed with Plaintiff’s IME and treating physicians.  Subsequently, after “a further review of the records”, changed her opinion, without an explanation.  The ALJ, after announcing his respect for her, was “simply unable to find any basis for her change of opinion and will therefore go with her initial finding and opinion.”
In her first report dated 4/1/15, Dr. Ballard opined Branham’s two hernias and surgeries hernias were caused by twisting and heavy work at Branham’s job. She said it was possible the prior surgery may have led to the hernia/abdomen condition, but his work appeared to have aggravated it, causing the need for surgery.  Further, in her initial report she recorded under review of records some 20 items and came to her conclusion that the hernias were work related.
In her second report at the request of Counsel for the Defendant, she begins by stating “On further review of the records…” There was no indication, however, that she reviewed additional records and the basis for her change of opinion. In that report she indicated that the umbilical hernia was likely related to the laparoscopic procedure performed to remove a kidney, and Branham’s subsequent complaints were related to non work related problems rather than his work.
In addition, in her original report concerning what portion of Branham’s condition could be attributed to a prior 1999 incision, she had unequivocally stated “None”.
Procedural History: ALJ awarded benefits.
Issues: Was there substantial evidence to support the ALJ decision?
Holding: WCB upheld the ALJ. “Because Dr. Ballard did not give a detailed or specific reason for the change in her position, we conclude it was within the ALJ’s discretion to afford more weight to Dr. Ballard’s first opinion.”
Rules: It is the ALJ’s discretion to determine the quality of the evidence.
Reasoning: Dr. Ballard never explained with specificity why she reached a contrary opinion regarding causation upon a second review of the same evidence. The ALJ was thus free to afford more weight to the first opinion, which was consistent with Dr. Bilkey’s opinion.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Larry Kidd v. Crossrock Drilling, LLC ;2015-CA-001239-WC; Maze (Not To Be Published)
Facts: A hearing was held on December 18, 2014 on several issues.  Following the hearing, Kidd’s attorney engaged in settlement negotiations with the adjuster for Crossrock’s insurer.  Neither the ALJ nor Crossrock’s attorney were aware of the negotiations.
During a series of emails between January 28 and February 24, 2015, Kidd’s attorney and the adjuster discussed potential settlement of the claim. In the final email dated February 24th adjuster indicated that Crossrock would agree to a settlement involving a lump sum payment of $55,000.00 with a waiver of vocational rehab. Kidd’s attorney was to prepare the documents.
On February 20, the ALJ entered an opinion denying any benefits to Kidd, which Kidd’s attorney received on February 25. On March 3, Kidd filed a petition for reconsideration asserting that the parties reached a settlement prior to the receipt of the opinion. Copies of emails were attached as an exhibit.
In its response, Crossrock argued that any negotiations between Kidd’s attorney and the adjuster were improper because SCR 3.130(4.2) prohibits a lawyer from communicating with a client who he knows to be represented by counsel, or, in the alternative, the alleged settlement failed to resolve all material terms and was therefore unenforceable.
The ALJ concluded that Kidd failed to properly raise a motion to adopt the settlement by filing a Form 110 or by presenting verified motion to adopt the settlement agreement.
Procedural History: Larry Kidd petitioned for review of an opinion and order by the WCB which affirmed an order by the ALJ denying his motion to set aside a prior opinion and award. Kidd asserts he had entered into a settlement agreement with the employer prior to entry of the award, and thus the ALJ erred in finding that he lacked authority to enforce the settlement agreement.
Issues: Was there a proper motion before the ALJ to adopt the alleged settlement agreement?
Holding: No
Rules: In the absence of a verified motion to enforce the purported settlement and filing of the correspondence documenting that settlement, the issue was not properly presented.
Reasoning:  The petition for reconsideration was not the proper means to seek enforcement of the alleged agreement. There must be sufficient documentary evidence filed in the record, which when taken together comprises the memorandum of agreement. Since no verified motion was filed, the emails establishing the purported agreement were never filed of record as required by KRS 342.265(1). See Hudson v. Cave Hill Cemetery 331 S.W.3d 267 (Ky. 2011)
The issue of Counsel speaking with the adjuster of Crossrock was not discussed.
Disposition: Opinion Affirming
Court of Appeals Panel: Acree, Chief Judge, J. Lambert, and Maze
ALJ: Hon. Steven Bolton

Case Name, Citation, Author:  Melinda Keown v. Methodist Hospital; No. 201285818; Alvey
Facts: Keown appeals from a decision on remand, as well as an order denying her petition for reconsideration and an 8/7/15 order denying her motion to reopen proof.
The ALJ on remand determined the work accident resulted in a temporary injury producing no permanent impairment. He determined one medical visit was compensable. He awarded no TTD or PPD.
The ALJ had questioned Keown’s credibility since she had gone about 5 months after the injury without pain.
The ALJ refused to reopen proof time to allow more medical evidence.
Procedural History: Keown’s original claim was dismissed for failing to prove work-relatedness. She appealed, and the WCB found the parties had stipulated a work related injury. Methodist appealed to COA which affirmed WCB. Upon remand, Keown moved to reopen proof to submit documentation of the surgical treatment she received during the appeal process.  The ALJ denied the motion.
Issues: Keown argues the ALJ abused his discretion in refusing to reopen proof, incorrectly applied the law regarding pre-existing disability, and failed to make sufficient findings of fact supported by substantial evidence.
In a previous ruling the WCB remanded to the ALJ for a determination of whether the shoulder injury claim was temporary or permanent. 
Upon remand, the ALJ determined the incident caused only a temporary injury.
During the time on appeal, Claimant had seen numerous doctors, and upon remand Keown moved to reopen proof in order to submit documentation of the surgical treatment she received for her torn rotator cuff. The ALJ denied the motion.
The ALJ explained he did not find it necessary to reopen proof time because he accepted Keown had a condition in her right shoulder, having previously reviewed her MRI.  Rather, the primary issue was whether the condition related to the 12/9/11 incident.
Holding: ALJ was correct.
Rules: When there is sufficient evidence in the record to address the contested issues at the time the claim is taken under submission, the ALJ is not required to reopen proof.  T.J. Maxx v. Blagg, 274 S.W. 3d 436 (Ky 2008)
Reasoning: The ensuing treatment was not necessary for a determination as to causation.
There was sufficient substantial evidence to support the ALJ decision.  The Claimant’s arguments went to the weight of the evidence only.
Disposition: Opinion Affirmed
Court of Appeals Panel: N/A
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Kentucky Fuel Corp v. Shelby Senters; 201301850
Facts: ALJ awarded RIB. ALJ determined that if Senters elected to receive an award based on 25% in lieu of RIB it would commence on last date of exposure (9/2/12).
Kentucky Fuel argued it should begin on date of actual disability, not the last day of exposure. It claimed actual disability on 4/8/13, the date of Dr. Michael Alexander’s evaluation. Dr. Byron Westerfield had also examined the Plaintiff.
Procedural History: ALJ said date of last exposure.
Issues: When do benefits pursuant to KRS 342.732(1)(a)7 commence?
Holding: KRS 342.732(1)(a)7 does not expressly state when the award commences for calculation purposes.
WCB finds the General Assembly intended the Award provided in KRS 342.732 (1)(a)7 be calculated in the same manner as other income benefits for occupational disability and therefore subject to the requirements of KRS 342.316 (1)b.
The question remained whether Senters’ date of “actual disability” is subsequent to his date of last injurious exposure, and the case was sent back to the ALJ for determination.
Rules: KRS 342.732(1)(a)7; KRS 342.316(1)b.
Reasoning: The General Assembly intended the award provided in KRS 342.(1)(a)7 be calculated in the same manner as other income benefits for occupational disability and therefore subject to the requirements of KRS 342. 316 (1)b.
Disposition: Vacated in Part, Remanded in Part
ALJ: Hon. Roland Case

Case Name, Citation, Author:  Donnie Hamlin v. Alpha Natural Resources; No. 201500075; Stivers
Facts: The parties filed a joint motion to remand this case back to the ALJ following the appeal by Hamlin seeking to overturn the dismissal of his claim based on the statute of limitations and repose. The claim had been placed in abeyance pending two cases before the Supreme Court. The claim now needed to be remanded for a determination of causation and medicals, portions of the claim having already been settled.
Claimant was informed his condition may be work related by a physician on 12/2/14. He filed his claim on 1/22/15.  The Claimant ceased working some 30 months before he was notified his cumulative trauma condition was work related. He did not file his claim for 31 months from the time he ceased work.
Procedural History: Following joint motion of the parties this case was to be remanded back to the ALJ following decision in the Supreme Court in Consol of Kentucky Inc. v  Goodgame, et al  ___S.W. 3d___2015 WL 5654854.
Issues: Did the Claimant fall under Consol Of Kentucky, Inc.
Holding: Yes
Rules: The statute of repose does not begin to run until the date of diagnosis of a cumulative trauma injury versus the date of last exposure as was previously the law.
The repose period begins to run on the date the statute of limitations period begins to run-the date the Claimant is informed of a work related cumulative trauma injury.
Reasoning: The WC statutes are to be construed so as to effectuate its beneficent purposes to compensate its injured workers
Disposition: Opinion and Order Vacating and Remanding
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Bill Gray Jr. v. James River Coal/Beech Fork Mine; No. 2015-CA-001123-WC (Not To Be Published) Taylor.
Facts: On August 22, 2014 Gray filed a claim for WC benefits alleging that he had contracted pneumoconiosis, chronic bronchitis, and chronic obstructive pulmonary disease as a result of working over 40 years as an underground coal miner in Kentucky. His last date of employment with James River Coal/Beech Fork Mine and his last date of coal dust exposure were on August 24, 2009.
Dr. Baker performed a medical examination and wrote a letter on February 5, 2011 where he opined: “On the basis of my examination the patient has a chronic lung disease secondary to his coal mine employment. This is based on the presence of both clinical and legal pneumoconiosis.”
Dr. Baker also noted that these medical conditions caused Gray to experience an adverse effect on his respiratory system and a mild pulmonary impairment.
Procedural History: The WCB affirmed the decision of the ALJ dismissing Gray’s claim for occupational disease as being time barred.
Issues: Was the claim time barred under KRS 342.316(4)(a)?
Holding: Yes.
Rules: The language in KRS 342.316(4)(a) requires a claimant to file an occupational disease claim within three years after the last injurious exposure to the hazards of the disease or within three years of the manifestation of the disease, whichever is later.  
Reasoning: Dr. Baker’s letter concluded that Gray’s medical conditions were caused by Gray’s exposure to coal dust during his work as a coal miner. These conditions caused Gray to experience an adverse effect on his respiratory system and a mild pulmonary impairment. From Dr. Baker’s letter, there exists substantial evidence in the record that Gray experienced pulmonary symptoms caused by coal dust exposure and was informed of same in February, 2011, which triggered the three-year statute.  Gray’s claim was not filed until August 24, 2011.
Disposition: Opinion Affirming
Court of Appeals Panel: J. Lambert, Maze, and Taylor
ALJ: Hon. Robert L. Swisher

Case Name, Citation, Author:  Marcia Gemmell v. Walgreens; NO. 2014-CA-001866-WC; Thompson; Not to Be Published
Facts: Two injuries, one to low back, and one to right ankle.  Gemmell claimed the injuries had not resolved.
Dr. Soucy assigned a 0% impairment, but did not indicate it was based on the Guides. He had the same diagnosis as Dr. McEldowney.
Dr. McEldowney assigned 5% to the low back and 3% to the ankle, using the Guides.
Dr. Gleis opined 0% whole body, with no permanent restrictions.
Procedural History: ALJ denied Gemmell’s claim for PPD benefits.  WCB affirmed; Court of Appeals Affirmed
Issues: This is essentially a substantial evidence case, however, Gemmell argued that the ALJ could not rely on a 0% rating that was not under the Guides, and this was error.
Holding: The rating, even if a 0% has to be under the Guides.  In this case there were other reports using the Guides, (Dr. Gleis) which also assigned 0%, which the ALJ could and did rely on. This was enough for the ALJ to rely on.
Rules: The CA agreed with Gemmell that the portion of Dr. Soucy,s opinion determining a 0%, not using the Guides, could not be relied on by the Judge.  However, excluding this evidence does not change the outcome because the ALJ also relied on Dr. Gleis’ opinion of 0%, which was grounded in the Guides.
A 0% PI does not mean that Gemmell has not suffered an impairment, it just did not rise to a level to warrant a permanent impairment rating and permanent income benefits. Gemmell may still be entitled to future medical benefits for her injuries.
Disposition: ALJ and WCB Affirmed
Court of Appeals Panel:  Jones, Taylor, and Thompson
ALJ: Hon. Jeannie Owen Miller

Case Name, Citation, Author:  Ford Motor Co. (LAP) v. Shawn Milliron; No. 201378332; Rechter
Facts: Milliron worked for Ford in Minnesota before transferring to LAP in 2011. In Minnesota he sustained a work injury to his neck in 1997, undergoing a laminectomy in 1999 and a fusion in 2001. He was then assigned an impairment rating of 23.5%, though not based on the AMA Guides. He settled his case based on 24%.  Between 2002 and 2012 he continued with chiropractic care and injections.
After in house treatment he was referred to Dr. Gary Reasor for pain management, and then to a neurosurgeon, Dr. Kimathi Doss. Doss opted against surgery and diagnosed cervical spinal stenosis, cerclagia, and cervical radiculopathy.
Following the 5/7/13 injury, Milliron was placed on light duty where he sat at a table from 5/7/13 to 6/19/13. He was taken off work and paid TTD from 6/20/13 thru 4/20/14, when he returned to a temporary position looking for chips and scratches. He missed more work. He returned to work from 7/1/14 thru 12/6/14 when he was put off work due to a lack of positions with his restrictions.
Milliron filed the report of Dr. Warren Bilkey. He diagnosed a cervical strain superimposed on a prior history of C4-5 decompression.
Bilkey assigned a 28% impairment under the Guides, noting that some of this was from the original injury, but stating that the AMA Guides do not give direction when a rating is not previously given under the Guides. He then apportioned 1/3, or 9%, to the current injury.
Dr. John Guarnaschelli performed an IME and stated the 2013 injury was primarily soft tissue superimposed on the previous condition, and as of 8/22/13 did not believe Milliron was at MMI.
Dr. Timir Banjeree did an IME 1/7/15. The 2013 was merely an aggravation, and assigned no impairment rating.  He did not agree with Dr. Bilkey’s reasoning concerning apportionment of the impairment rating.
Milliron testified that he had complained several times about the rack sticking, and requiring forceful yanks.  Ford knew of no other injuries using the rack.
Procedural History: Ford appeals and Milliron cross appeals from the award granting Milliron TTD, PPD, and medical for a work-related cervical spine injury. On Cross Appeal, Milliron argues the evidence compels the imposition of the 30% safety penalty and an award of PTD. Issues: Substantial evidence, Application of AMA Guides and safety penalty, date of beginning of PPD benefits, whether Plaintiff was totally disabled, the correct dates of TTD payments to be awarded.
Holding: There was no error in the ALJ’s reliance on Dr. Bilkey’s opinion. The AMA Guides do not specifically address how to apportion a pre-existing condition when the prior impairment rating was not assessed in conformity with the Guides. The proper interpretation of the Guides is a medical question left to medical experts. Bilkey offered a reasonable explanation for his conclusion.
There were two periods of time that Ford challenged the payment of TTD.  The WCB remanded this issue to the ALJ to determine whether the light duty performed constituted a return to customary employment as described in Trane v. Tipton.
Milliron did not identify a specific statute for his safety violation, but relied on the general safety statue at KRS 338.031 (1)(a). The ALJ had determined the problem with the racks constituted a “production nuisance” rather than a safety hazard. The injury could have been caused by any piece of equipment that required pulling or tugging.  WCB found the conclusion was reasonable and did not rise to the level of egregious disregard for safety concepts identified in Apex Mining v. Blakenship, 918 S.W. 2d 225 (Ky. 1996)
With regard to whether or not the Plaintiff should have been found totally disabled, the ALJ reached a reasonable conclusion under the evidence and it would not be disturbed.
Lastly, the ALJ incorrectly used a date other than the date of injury for the award of PPD benefits to commence. Those benefits are to begin on the date of injury. Sweasy v. Wal-Mart Stores Inc. 295 S.W.3d 835 (Ky. 2009)
Rules: The decision of the ALJ on appealed was largely upheld on the finding that substantial evidence existed as set forth above to affirm the decisions. Where there were decisions being vacated, the WCB set forth the law above to follow.
Reasoning:  The ALJ correctly assessed the evidence as it pertained to critical issues, and the WCB is without authority to direct a contrary result.  The ALJ needs to follow Trane v. Tipton with regards to the issue of TTD, and to change the date that benefits were to commence.
Disposition: Affirmed in Part, Vacated in Part, and Remanded. The award of TTD benefits is vacated and this claim is remanded for further analysis of entitlement to TTD. The portion of the Order commencing PPD on June 20, 2013 is also vacated.
ALJ: Hon. Otto D. Wolff, IV

Case Name, Citation, Author:  Johnny Ray Fields v. Excel Mining/Alliance Coal; No. 201500692; Rechter
Facts: Fields appeals the Opinion dismissing his claim for PTD, the ALJ finding he did not suffer compensable injuries.
Fields worked in mining for 38 years, primarily as an electrician and repair man. For the last 12 years he worked for Excel as a shuttle car operator, except for one year as a miner operator. He was laid off 8/2/14. The Safety Director for Excel said his job was the easiest job in the mines, and knew of no duties in the job that would impact the knees.
Fields worked without restrictions nor did he miss time from work. He claimed problems with his knees over the years.
Dr. Bruce Guberman evaluated Fields. He diagnosed post-traumatic arthropathy of the knees due to cumulative trauma at work, status post left knee arthroplasty, and chronic post traumatic strain of the lumbar spine due to cumulative trauma at work. He assigned a 38% impairment under the Guides. He could not return to work.
Dr. David Muffly did an IME. He diagnosed bilateral knee osteoarthritis, left greater than right, and minimal degenerative changes of the lumbar spine without any sign of DDD. No cumulative trauma to the spine, hips, or knees. The bilateral knee arthritis is related to age, obesity, and history of prior left knee fracture.  He assigned 15% for the left knee and 3% for the right knee, none of ehich was attributable to cumulative trauma.
Dr. David Jenknison did an IME. He diagnosed osteoarthritis in both knees, no evidence of a harmful change to hips or back due to cumulative trauma. Osteo in knees was not related to work.
Procedural History: Opinion entered on 12/21/15
Issues:  Was there substantial evidence that Fields was permanently totally disabled as a result of cumulative trauma injuries to his knees, hips, and lower back?
Holding: No
Rules: The ALJ essentially followed Dr. Muffly and Dr. Jenkinson.  There was no evidence Fields even sought medical for the knees while working for Excel.
Reasoning: There was substantial evidence supporting the ALJ, and the evidence did not compel a finding in Fields’ favor. 
Disposition: Affirmed
ALJ: Hon. Grant S. Roark

Case Name, Citation, Author:  Armstrong Coal Company v. Brandon Russell; WCB 201393998; Alvey
Facts: Russell sustained injury to low back on 1/2/13. Dr. Troffkin performed an unidentified surgery on 3/25/13 for L5-S1 herniation. The injury was not disputed, but the current condition and post-surgery changes to his spine were. There was evidence that Russell had violated narcotic pain medication agreements and had displayed drug seeking behavior.
Russell returned to work, was taken off again due to pain, and then released again by Dr. Troffkin on 7/11/13, full duty, with a referral to a pain clinic.
He treated with Dr. Tawwab from 8/13 thru 6/14.  While with Tawwab, he was given a less strenuous job, reduced wages, and used up all his FMLA time to “recover.”
Dr. David Weaver issued a 12% impairment using the Guides.
Ben Wade, a PT assessed a 10%, and then changed to 28%.  This rating was adopted by Dr. Schulz who had begun treating Russell.
Dr. Mark Barrett performed an IME and assigned 28% using ROM. Diagnosing chronic pain, recurrent after the surgery.
The ALJ accepted the 28% ratings, and believed Russell’s lumbar spine suffered postsurgical changes which caused significant pain. She concluded he could return to his pre injury position and therefore no “3”.  It was also difficult to determine what days were missed for his back pain, or which for his drug dependency
She awarded TTD from 7/15/14 thru 1/7/15, when Dr. Schulz took him off work until Dr. Barrett placed him at MMI. 
Russell did in fact return to his original job, until he was placed in a lower paying position where he worked for almost one year before being terminated.
Procedural History: ALJ awarded PPD, with a 28% and multiplier of 2, plus TTD. Armstrong appeals the TTD, and the finding of a second injury. Russell cross appealed, wanting the “3”.
Issues: Essentially a substantial evidence case, and what evidence the ALJ can rely on. The fact issues were evidence of drug seeking behavior and a “second injury.”
Holding: ALJ can rely on and choose any evidence as she so chooses. The ALJ was free to believe Dr. Schulz and believe what evidence she finds most credible.  The statute does not require her to lend more credibility to a treating physician or a specialist.
The ALJ was also free to consider the evidence of drug seeking behavior when Russell missed work.  It was therefore difficult to determine if the Plaintiff lacked the physical capacity to return to his regular work due to the effects of the injury, and he was not entitled to the “3”.  He was entitled to the “2”.
Rules:  The evidence was thoroughly analyzed by the Judge. Missing work due to injury or drug dependence was not a medical determination by the ALJ. It was reasonable of her to reject his testimony about missing work.
Reasoning: The ALJ can choose the evidence she wishes to rely on.  There was sufficient evidence here for her decision.  There was a lot of evidence presented concerning drug seeking behavior during the entire period of post injury rehab/RTW. Russell claimed his missed time from work was pain related, but she chose not to believe his testimony.  It was reasonable for her to consider the totality of the evidence concerning this period and reject his testimony.
Disposition: Affirmed
ALJ: Hon. Jeannie Owen Miller

Case Name, Citation, Author:  Turunau Adams v. Hazard Independent School District; No. 201194858; Alvey
Facts: The main facts in this case are procedural.  This case went to the WCB previously and was remanded on several issues.  While on remand, a medical fee issue arose. The ALJ made his determinations on remand, and entered an opinion, but not on the medical fee issue. A scheduling order had been issued on the medical dispute.
Procedural History: See above.
Issues: Was the ALJ opinion and award a final and appealable order?
Holding: No
Rules: Because the outstanding medical dispute had not been resolved the ALJ’s decision is not final and appealable.  Also, ALJ was directed to make more findings on medicals from prior WCB opinion.
Reasoning: An order of an ALJ is appealable ONLY if: 1) it terminates the action itself; 2) acts to decide all matters litigated by the parties; 3) operates to determine all the rights of the parties so as to divest the ALJ of authority.  Tube Turns Division v. Logsdon 677 S.W. 2d 897 (Ky. App 1984) 
Also, because the WCB is allowed, sua sponte, to reach issues even if unpreserved but not raised on appeal (KRS 342.285 (2)(c)), the ALJ was directed to make a determination as to medicals on temporary injuries or exacerbations of the Claimant, which he had failed to address.
Disposition: Opinion and Order Dismissing and Remanding
ALJ: Hon. Steven G. Bolton

Case Name, Citation, Author:  United Mechanical Inc. v. Jeffrey Crump; WCB 201500071
Facts: ALJ awarded TTD, PPD, and medical benefits. United argued on appeal the findings of a work related injury and a permanent impairment rating are not supported by substantial evidence.
Dr. Warren Bilkey testified by deposition that the Plaintiff had a 28% impairment rating, but had not yet reached MMI, and would not for another 8 months. There were no other impairment ratings in the file.
Procedural History: ALJ award of TTD, PPD, and medical benefits.
Issues: Was decision supported by substantial evidence.
Holding: No as to the award of TTD, PPD.  Yes to the determination of work related injury.
Rules:  The ALJ relied upon a 28% impairment by Dr. Bilkey.  Bilkey testified that Crump had not yet reached MMI at the time of the rating… In fact, he did not believe MMI would occur for another 8 months.
Reasoning: On remand, the ALJ was directed to review the medical evidence and determine if there is evidence regarding an MMI date that pre-dates Bilkeys report.  There are no other ratings in the record.  Thus an award of PPD benefits based upon Bilkey’s impairment rating can only be rehabilitated through other medical evidence relating to MMI that pre-dates the date upon which Bilkey assigned his rating.  If the ALJ is unable to discern that medical evidence supports an MMI date which satisfies this requirement, permanent income benefits cannot be awarded. The ALJ may find the medical evidence supports temporary injuries, and if so, the ALJ must evaluate the entitlement to reasonable and necessary medical benefits, both past and future.
Disposition: Affirming in Part; Vacating in Part and Remanding
Court of Appeals Panel: WCB Alvey, Stivers, Rechter
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author:  Commonwealth of Kentucky Uninsured Employers Fund v. Sidebottom; No. 2015-CA-001854-WC; Stumbo
Facts:  The facts were not disputed.  Sidebottom was employed as a waitress earning $2.10 per hour plus tips. After 6 months, along with an increase in duties her pay was increased to $100.00 per week, plus tips.  Sidebottom reported her tips to the employer, but he did not report these on her W-2. When she learned of this, she did not report the tips to the IRS on her own.
In calculating benefits, the ALJ relied on Sidebottom’s wage records prior to her increase from hourly plus tips to weekly plus tips.
UEF claimed that since no tips were reported, no tips could be used in the calculation of AWW.
Procedural History: Appeal by UEF from WCB Opinion, Affirming in Part, Vacating in Part, and Remanding an Opinion, Order, and Award of ALJ Roark.
Issues: UEF contended Sidebottom was a salaried employee, without tips.  ALJ found she was receiving salary plus tips.
Holding: Opinion Affirmed.
Rules:  AWW is decided on a case by case basis. It cannot be said that no evidence was adduced that she received tips after her promotion.  Rather, she testified that she received tips throughout and at all relevant times. Because the record contained substantial evidence that Sidebottom’s wages included tips, KRS 342.140 (1) (d) was properly applied. 
Reasoning:  There was substantial evidence for the ALJ to find in favor of the Plaintiff that the Plaintiff received tips throughout.
Disposition: Opinion Affirming
Court of Appeals Panel: Combs, Dixon, and Stumbo
ALJ: Hon. Grant Roark

Case Name, Citation, Author:  Commonwealth of Kentucky Uninsured Fund. V. Morgan Crayne; WCB Claim No. 201301012
Facts: Briefly, in this case plaintiff, a logger, stepped on a copperhead snake at work, jumped back and jerked, injuring his low back. AWW was in play here because Plaintiff earned $100.00 per day, and the parties disputed the number of days worked per week. The problem is that the employer did not keep records and failed to file an AWW-1.  Plaintiff also failed to stay for the entire IME with Dr. Lee, and UEF sought reimbursement of its costs.
Procedural History: Opinion, Order, and Award of ALJ was affirmed.
Issues:     1) Was injury after stepping on a snake an “Act of God?”  2) Did ALJ correctly calculate AWW? 3) Can UEF recover its costs for the IME that Plaintiff left early?
Holding: ALJ Affirmed.  Stepping on snake was not an Act of God. This defense is not recognized in Kentucky, but is related to the positional risk or increased risk doctrine.  Plaintiff’s job as a logger put him in a zone of increased risk.
Since the employer did not keep records, and did not file the AWW-1, the ALJ correctly computed the AWW based on Plaintiff’s testimony, and what records were available.
There is absolutely no authority via statute or regulation for the ALJ to assess costs for failure to complete the evaluation.  The only penalty is a cessation of benefits.
Rules: AWW- See KRS 342.140 (d) when wages are fixed by the day; for the AWW-1 803 KAR 25:010 Sec. 13 (9) (a)
IME costs:  See KRS 342.205 (3) 
Reasoning:   There is no authority to assess costs for failure to complete an evaluation.  The ALJ relied on the Plaintiff’s testimony concerning AWW because Employer had not kept records.
Disposition: ALJ affirmed
Court of Appeals Panel. WCB: Alvey, Stivers, and Rechter
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author:  Uninsured Employers Fund v. Acahua et al, No. 2015-CA-000993-WC (Not to be Published) Thompson
Facts: Plaintiff filed a claim alleging Acahua as the employer. UEF was named.  The correct employer was Lopez. An additional 101 was filed naming Lopez and the actions consolidated.  
The 101 to Lopez was returned as undeliverable.  UEF claimed there was no jurisdiction over Lopez.
Procedural History: The UEF appealed from an opinion of the WCB affirming a decision of the ALJ awarding permanent total disability benefits and medical benefits to the Claimant.  The UEF argued that the ALJ did not have jurisdiction over the uninsured employer, Lopez
Issues: The sole issue is whether service on Lopez at his last known address by first class mail by the Department is sufficient to confer jurisdiction over Lopez.
Holding: Yes
Rules:  See KRS 342. 135, and 803 KAR 25:010 sec 3 (2) 
Reasoning:  There is no requirement that registered mail be used. As the ALJ noted, “no involved party has any illusion in regard to the insured status or solvency of Lopez.”  Under the circumstances, the   reality is that Lopez will not be responsible for payments to the Plaintiff.  The UEF can then proceed against. Lopez.
Disposition: Opinion Affirming
Court of Appeals Panel: Clayton, Thompson, and Vanmeter; All Concur
ALJ: Hon. Thomas J. Polites

Case Name, Citation, Author:  Everett Turner v. Perry County Sheriff’s Department; No. 2015-CA---1446 WC; Dixon
Facts: Plaintiff suffered a heat stroke, and fell backwards, injuring his shoulder, resulting in surgery by Dr. Arthur Hughes. Dr. Hughes stated that Plaintiff was not at MMI, and assigned a 49% PI. Dr. Tutt for the PCSD did not find a work related injury. The ALJ, using Dr. Tutt’s report found the Plaintiff at MMI on June 25, 2014 and entered an award. Appeals to the WCB followed and the WCB remanded, directing the ALJ to provide additional findings regarding the date of MMI, June 25, 2014. The award of total disability, TTD, and medicals was vacated, and the case remanded.
On remand, the ALJ concluded Plaintiff was not at MMI, and rendered an interlocutory award of TTD until Turner reaches MMI.
PCSD appealed to the WCB.  The WCB entered an order dismissing the appeal as interlocutory, and “strongly recommended” that the ALJ vacate the award of TTD, as the WCB felt the ALJ had exceeded his authority on remand.
Both parties appealed.
Procedural History: See Above
Issues:     1. Did the ALJ properly enter an award of TTD benefits? 2. Should the WCB have treated the ALJ’s order as final and appealable?
Holding: It is well settled that award an award of TTD is interlocutory and not final and appealable.  The WCB apparently in dismissing PCSD appeal also articulated why it felt the ALJ’s order was erroneous, however, the CA declined to address the propriety of the Board’s recommendations to the ALJ because the order was clearly interlocutory and subject to revision at any time before the entry of judgment adjudicating all claims.
Rules: Transit Authority of River City v. Saling, 774 S.W.2d 685 (Ky. 1992) 
Reasoning:  Interlocutory awards cannot be appealed.  
Disposition: Order of WCB Affirmed
Court of Appeals Panel: Dixon, D. Lambert, and Maze; All Concur
ALJ:  Hon. William J. Rudloff

Case Name, Citation, Author:  Everett Turner v. Perry County Sheriff’s Department; No. 2015-CA---1446 WC; Dixon
Facts: Plaintiff suffered a heat stroke, and fell backwards, injuring his shoulder, resulting in surgery by Dr. Arthur Hughes. Dr. Hughes stated that Plaintiff was not at MMI, and assigned a 49% PI. Dr. Tutt for the PCSD did not find a work related injury. The ALJ, using Dr. Tutt’s report found the Plaintiff at MMI on June 25, 2014 and entered an award. Appeals to the WCB followed and the WCB remanded, directing the ALJ to provide additional findings regarding the date of MMI, June 25, 2014. The award of total disability, TTD, and medicals was vacated, and the case remanded.
On remand, the ALJ concluded Plaintiff was not at MMI, and rendered an interlocutory award of TTD until Turner reaches MMI.
PCSD appealed to the WCB.  The WCB entered an order dismissing the appeal as interlocutory, and “strongly recommended” that the ALJ vacate the award of TTD, as the WCB felt the ALJ had exceeded his authority on remand.
Both parties appealed.
Procedural History: See Above
Issues:     1. Did the ALJ properly enter an award of TTD benefits? 2. Should the WCB have treated the ALJ’s order as final and appealable?
Holding: It is well settled that award an award of TTD is interlocutory and not final and appealable.  The WCB apparently in dismissing PCSD appeal also articulated why it felt the ALJ’s order was erroneous, however, the CA declined to address the propriety of the Board’s recommendations to the ALJ because the order was clearly interlocutory and subject to revision at any time before the entry of judgment adjudicating all claims.
Rules: Transit Authority of River City v. Saling, 774 S.W.2d 685 (Ky. 1992) 
Reasoning:  Interlocutory awards cannot be appealed.  
Disposition: Order of WCB Affirmed
Court of Appeals Panel: Dixon, D. Lambert, and Maze; All Concur
ALJ:  Hon. William J. Rudloff

Case Name, Citation, Author:  Harold Sparks v. Worldwide Equipment WCB No. 201093553
Facts:   Sparks appeals from the ALJ decision on reopening that while he had suffered a worsening of his condition, he was not totally disabled. Worldwide appeals challenging the determination that his impairment rating had increased.
Worldwide also filed Medical Fee Disputes over treatment.
Sparks did undergo lumbar epidural steroid injections and a spinal cord stimulator, with some relief, but pain persisted.
Sparks submitted medical reports from Dr. Vemuri who diagnosed lumbar degenerative disease, lumbar instability spinal stenosis and radiculopathy.
An IME of Dr. Anthony McEldowney assessed an 8% PI with 2% due to chronic pain and disabled status. 
Dr. Amr El-Naggar assessed a 6%.
Dr. Rick Lyon assessed 5 %.
Vocational reports of Dr. Conte and Dr. Tiell were conflicting.
Procedural History: Case was originally settled for a 6% whole person rating, reserving the right to reopen. Sparks filed this MTR.
Issues: Was there a proper evaluation of the evidence, and was there substantial evidence?
Holding: Yes
Rules: Dr. McEldowney’s report constitutes the requisite substantial evidence to establish the 8% impairment. Worldwide did not argue that the rating contradicts AMA guides.
The analysis under Ira Watson case was sufficient. Sparks simply wanted to weigh the evidence of his subjective complaints more in his analysis.
Reasoning: This was primarily just a substantial evidence case.  The increase in impairment was sufficient for the reopening but not for a total award.
Disposition: Affirmed
Court of Appeals Panel: WCB
ALJ:  Hon. Jonathan Weatherby

Case Name, Citation, Author:  James Robinson v. Stewart Richey; WCB Claim No. 200883455
Facts: ALJ determined a 2.5% impairment for psychological portion of injury, however did not award future medicals for psychological portion of claim.
Procedural History: ALJ awarded 8.5%, including 2.5% for psychological, but no medical for the psychological claim.  Plaintiff appealed.
Issues: Is the ALJ required to award future medical treatment when there is an impairment rating?
Holding: Yes
Rules: KRS 342.020 (1) requires an employer to pay for the cure and relief from the effects of an injury “as may reasonably be required at the time of the injury and thereafter during disability.”  See also Max and Erma’s v. Lane, 290 S.W.3d 695 (Ky. App 2009)   
Reasoning:  The finding of a permanent impairment rating equates to a permanent disability which obligates the employer to pay for reasonable and necessary treatment for cure and relief. Employer retains the right to contest through medical fee dispute.
Disposition: Reversed and remanded for entry of award for future medical benefits.
Court of Appeals Panel: WCB
ALJ:  Hon. Steven G. Bolton

Case Name, Citation, Author:  Raytheon Company v. Kelvin Driver; WCB Claim No. 199024557; Alvey
Facts:  MFD.  This was a 1990 case with an award of 15% for the low back.  Plaintiff currently treats with Dr. Madhu Yelameli of Nashville Pain Center who performed two bilateral L3-5 medial branch nerve blocks with improvement. He then recommended a lumbar medial branch nerve radiofrequency ablation.
Dr. Deborah Bergfeld did a U/R, and noted that Driver’s low back complaints were non-specific and indicated no level of abnormality at the L3-5 levels, the site of the proposed treatment.  She also referenced the Official Disability Guidelines for radiofrequency neurotomies.
Procedural History: Raytheon appeals from ALJ decision which determined certain pain management therapies, including radiofrequency ablations, are reasonable and necessary for relief of Driver’s low back injury.
Issues: Was the ALJ’s analysis sufficient and did the evidence support the award?
Holding: No.  The analysis was insufficient.  
Rules: Relied upon Kentland Elkhorn Coal v. Yates, 743 S.W.2d 47 (Ky. App. 1988) concerning sufficiency of evidence.
Reasoning:  The entire analysis was “that the medical evidence  from plaintiff’s treating physician, Dr. Yelemeli, is very persuasive compelling and reliable.  I am therefore going to follow…”
Parties are entitled to findings sufficient to inform them of the basis for the ALJ’s decision to allow for meaningful review.
Disposition: Opinion Vacated and Remanded.  It was unclear whether the ALJ considered the substance of Dr. Bergfeld’s report, and whether he exercised his discretion in determining Dr. Yelameli’s proposed treatment is reasonable and necessary.  Further analysis is needed.
Court of Appeals Panel: WCB: Alvey, Stivers, Rechter
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author:  Pyro Mining Company (Lodestar Energy Inc.) v. Joe D. Walker; WCB 198428320
Facts:  This case has a long and sordid history for reopening for medical treatment for back issues over the years, to the extent that at one point sanctions were threatened against both parties.
The Plaintiff’s injuries were primarily the lower extremity, which had resulted in a failed ankle fusion, and eventually a below knee amputation.  As to be expected, his gait became abnormal. The medical evidence indicated this affected his back pain.
The low back pain was always an issue. After testimony from Dr. Robert Varney, Dr. David King, Dr. Paul Alley, and Dr. Goebel, the back was found to be compensable.
Procedural History: Pyro appealed this Opinion and Order on a MFD determining that Walker’s gait disorder and increase in back pain are work related, and his request for medical benefits for these conditions is not prohibited by res judicata or the statute of limitations.  Further, the treatment is reasonable and necessary for the cure and relief.
Issues: Did the statute of limitations and/or res judicata apply?  Contested medical issues concerning back.
Holding: Substantial evidence linked Walker’s back pain to his gait abnormality, and Walker’s gait abnormality was a direct result of his ankle fusion and subsequent amputation. Since his surgical treatment was work related, treatment of the gait derangement is also work related. A direct and natural consequence of the ankle fusion and amputation is the gait abnormality and the heightened pain that comes from gait abnormality.
Rules:  The statute of limitations did not apply since this was not a case of the original back conditioning worsening.  KRS 342.185 is inapplicable.
As to the S/L in KRS 342.125(3), it provides an exemption from the 4-year S/L “for reopening solely for the determination of the compensability of medical expenses.”  Both parties had used this mechanism.
The WCB, quoting the ALJ also noted that the fact that Walker was barred from bringing a claim regarding his back condition “is a separate and distinct issue from whether his lower extremity injury has caused a gait derangement and back pain that is “secondary” to that gait derangement.”  This distinction is critical and ends the argument regarding the issue of res judicata.
The WCB also cited Whittaker v. Reeder, 30 S.W.3d 138 (Ky. 2000) noting that W/C is a creature of statute, and its proceedings are administrative rather than judicial. Although the principles of error preservation, res judicata, and the law of the case apply to W/C proceedings, they apply differently than in the context of a judicial action.
For a discussion of “direct and natural consequence” see Addington Resources Inc. v/ Perkins 947 S. W. 2d, and Larson, Workmen’s Compensation Law Sec.13.11
Reasoning: The pain was not from a back injury, but rather from the gait derangement that resulted from the ankle fusion and subsequent amputation.
Disposition: ALJ Decision Affirmed
Court of Appeals Panel: WCB Alvey, Stivers, and Rechter
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author:  Mark Powers Sr. v. Louisville Metro; WCB No. 201464029
Facts:  Powers was an equipment operator who after his injury returned to work as a flagger, earning the same wages. This was a necessary position. After surgery, he returned picking up trash, not part of his regular duties, then to flagger, then to his normal work. He was awarded TTD for the three week period he picked up trash, as this was not part of his normal duties, but not for when he was a flagger.
Procedural History: ALJ award did not include TTD for the period of time that he performed work as a flagger, from 9/17/14 through 10/20/14
Issues: Did the ALJ err in finding that Powers is not entitled to a period of TTD during the time he worked on restricted duty prior to reaching MMI?
Holding: No
Rules:  The ALJ properly relied on Trane Commercial Systems v. Tipton, ___S.W.3d ___2016 WL 671170 (Ky. 2016).  This as a MUST READ.
Reasoning: Flagging was within his restrictions.  It was not a made up job.  There were no extraordinary circumstances that would justify an award of TTD while he was engaged in his “customary employment”
Disposition:  ALJ Affirmed.
Court of Appeals Panel: WCB
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author:  Nesco Resource LLC v. Earl Pay; WCB Claim No. 201593624;  Alvey, Chairman
Facts: Nesco failed to timely file its appeal to the WCB.
Procedural History: ALJ decision dated November 30, 2015; Appeal due 1/4/2016 due to holidays; Appeal filed 1/12/16.
Issues: Is the time for filing Notice of Appeal mandatory?
Holding: Yes
Rules: Time for Appeal is mandatory and failure to timely file is fatal. Relief pursuant to CR 60.02 was denied
Reasoning:  There are no exceptions for late filing.
Disposition: Appeal dismissed
Court of Appeals Panel: WCB, All Concur
ALJ: Hon. Udell B. Levy

Case Name, Citation, Author:  McCoy Elkhorn Coal Corp v. Sargent WCB No. 201280645
Facts: A settlement agreement presented and approved was executed solely by the widow of the deceased worker, and not the personal representative of the estate, nor the dependent children of the deceased or someone acting on their behalf.  In addition, while the widow identified herself as the personal representative of the estate, no documentation of such was provided.
Procedural History: ALJ Order concerning settlement.
Issues: Were all necessary parties before the ALJ and included in the settlement?  
Holding: No
Rules:  There are three separate categories of recipients in this action: the widow, the children, and the estate. Each is entitled to separate benefits.
The case was remanded to the ALJ with directions to join the personal representative of the estate, the minor children through their Guardian, and the adult child of the Decedent. 
Reasoning:  Each Party has a separate claim for benefits, and must be included to protect their own interests. The minor children will be protected through their Guardian.  Since the one child is an adult, if he meets certain requirements, he may still be entitled to benefits.
Disposition: Opinion vacating and remanding.
Court of Appeals Panel: WCB:  Alvey, Stivers, Rechter
ALJ:  Hon. Jeannie Owen Miller

Case Name, Citation, Author:  Louisville Jefferson Co. Metro Gov. v. Tamara Bredhold; WCB Claim No. 201469918
Facts: Bredhold was a recreation leader for Metro, with a previous history of injuries and surgeries to both knees.  On 6/30/14 she injured her LEFT knee administering first aid to a child when her knee “popped” as she was kneeling.  Dr. Akbar Nawab performed surgery to the left knee on 10/9/14.  She was released to unrestricted duty shortly thereafter, but restrictions had to be imposed. She stated her left knee collapsed on 3/14/15 as she was descending stairs at home, injuring her RIGHT knee. 
Dr. James Farrage assigned a 1% PI to the LEFT knee, and found her at MMI, but made no mention of the RIGHT knee, or the alleged fall at home.
A U/R report by Dr. Peter Kirsch found no causal relationship between the June 30 injury to the right knee and the original work injury to the left knee.
Dr. DeGruccio evaluated Bredhold at Metro’s request. He diagnosed bilateral knee osteoarthritis.  He assigned 1% to the LEFT knee and none to the RIGHT. The RIGHT knee condition was unrelated to the 6/30 incident.
The ALJ Opinion awarded a 1% for the LEFT knee, and awarded TTD only from the date of surgery until Bredhold returned to work on 11/4/14, even though she was not considered at MMI at that time. During periods after her surgery she was performing different work for her employer because of restrictions however she was earning the same wages, with accommodations.
The ALJ did award an additional period of TTD from 3/14/15thru 3/21/15, the week that she was off work because of the fall off the job.
Procedural History: Both the Metro and Bredhold appealed from ALJ decision of 11/30/15 awarding TTD, PPD and medical benefits for a June 30, 2014 work injury.  Both Petitions for Reconsideration were overruled.
Issues:  Metro argued that because Bredhold offered no medical opinion establishing the work relatedness of right knee and therefore no award of TTD or medicals could be made; and further, Bredhold failed to prove entitlement to future medicals for the right knee because an impairment rating of more than 0% was not assessed, and no medical evidence was submitted supporting such entitlement.
Lastly, Metro argued that Bredhold did not prove that this second injury caused greater than two weeks of disability as required by KRS 342.040(1) and thus the award of TTD from 3/14/15 thru 3/21/15 was error.
Bredhold argued that the ALJ failed to apply the appropriate legal standard in determining she was not entitled to TTD benefits for certain periods of light duty prior to reaching MMI or returning to her customary pre-injury job duties.
Holding: The ALJ properly set forth the appropriate analysis in determining that Bredhold was not entitled to additional TTD benefits during the period she returned to light duty work.
The ALJ did not err in awarding the additional week of TTD benefits.
The ALJ made no determination of whether Bredhold sustained a right knee injury despite awarding medical and mileage benefits some of which were purportedly for the right knee. Therefore, the award was vacated for out of pocket medical expenses, as well as mileage and future medical benefits insofar as the RIGHT knee was concerned.
Rules: The WCB relied on Trane Commercial Systems v. Delena Tipton, 2014-SC-000561-WC on the issue of TTD and the return to work issue.
Medical testimony regarding causation is necessary in this case on the RIGHT knee issue.
Reasoning: Absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her restrictions for which she has the experience, training, and education; and the employee has actually returned to employment.
Disposition: Remanded to determine whether Bredhold sustained a RIGHT knee injury caused by the work related injury to her LEFT knee, and to provide the basis for such determination.
Court of Appeals Panel: WCB Alvey, Stivers, and Rechter
ALJ:  Hon. Roland R. Case
Defense Attorney:  Bobby Ferreri (Ferreri Partners)

Case Name, Citation, Author:  Harry Hauber v. The Kroger Co. No. 2015-CA-0001346-WC; Not to be published: Clayton
Facts: Plaintiff sustained an injury 3/31/12.  He was off work until he returned on 8/1/12, working up to 60 hours per week after his return.  He returned to work as a stocker but he no longer performed the same stocking duties.  Hauber sought TTD from Kroger.
Procedural History: ALJ decision appealed to WCB, which affirmed ALJ.
Issues:  Did the WCB err when it affirmed the decision of the ALJ that Hauber was not entitled to TTD benefits between 8/1/12, the date Hauber returned to work, and May 13, 2014, the date Hauber reached MMI?
Holding: The C/A ruled that Hauber was not entitled to the TTD benefits
Rules: The Court relied primarily on Trane Commercial Systems v. Tipton,___ S.W. 3rd___, 2016 WL671170 (final  March 10, 2016)  This is a MUST READ for everyone.
Reasoning: Absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment I.E.  work within the physical restrictions and for which he has the experience, training, and education, and the employee has actually returned to employment.
Disposition: Affirmed
Court of Appeals Panel: Clayton, Jones, and Taylor
ALJ: Hon. Jonathan R. Weatherby

Case Name, Citation, Author:  Commonwealth of Kentucky Transportation Department v. Arflack Claim No. 201091591
Facts: This is a reopening filed by the Transportation Cabinet after the Plaintiff sustained a new injury while doing the type of work he was doing at the time of the original injury. The initial award was based on a 25% impairment, enhanced by the “3” multiplier.
Procedural History: The CALJ overrule the Commonwealth’s MTR.  On appeal, the WCB affirmed.
Issues:    1. Did the ALJ err when he determined that the absence of a decrease in the functional impairment rating equated to failing to make a prima facie case for reopening to rescind enhancement by the three multiplier?     
    2. Was a prima facie case for reopening established when an employee who has been awarded benefits enhanced by the three multiplier is released by his treating physician to return to the type of work he was performing at the time of the injury?
Holding: No
Rules: KRS 342.125
Reasoning: Without a change in impairment rating neither party is entitled to reopen an award for reassessment of multipliers The evidence submitted by the Commonwealth in its MTR was not “newly discovered evidence” appropriate for a MTR.  Importantly, even though the treating Doctor had released Plaintiff without restrictions, the Doctor for the injury upon which the award was based had not modified his restrictions.
Disposition: Affirmed
Court of Appeals Panel: WCB All Concur
ALJ: Hon. Robert L. Swisher

Case Name, Citation, Author:  Bluegrass Oakwood v. Dylan Mulligan; WCB No. 201379244
Facts: Plaintiff alleged two injuries to his back, both involving tending to patients. He failed to provide notice immediately following each of the two injuries: the first because he thought it would resolve itself; the second because he feared he would be fired. There was also an indication that she may have injured her back at home picking up her child.
Mulligan was unable to pinpoint the exact dates of injury when she did report them, and her supervisor testified his investigation of the alleged injuries was hampered by the delay in reporting.
Procedural History: ALJ determined that Mulligan suffered work related injuries to his back and left leg on 4/10/13 and 4/29/13 and awarded TTD, PPD, and future medicals. Bluegrass appealed the decision that timely notice was provided following the injury, and had not been given “as soon as practicable after the happening thereof.
Issues: Was notice timely given
Holding: ALJ said yes, WCB says the ALJ needs to consider and make finding on more evidence.
Rules: KRS 342.185
Reasoning: Lack of employer prejudice may excuse an employee’s inaccuracy in complying with the notice requirements of KRS 342.190 but does not waive a delay in providing notice. Further, the ALJ’s analysis provided no cogent discussion of whether Mulligan provided notice “as soon as practicable.”
Disposition: Remanded back to ALJ to consider all of the testimony concerning notice and to make more findings of facts concerning notice.
Court of Appeals Panel: WCB Alvey, All Concur
ALJ: Hon. William Rudloff
Defense Attorney:  Bobby Ferreri (Ferreri Partners)

Case Name, Citation, Author:  Administrative Office of Courts v. Blevins; 2015-CA-001726-WC; Combs, Judge (To Be Published)
Facts: The facts are interesting. Blevins was an AOC employee in Knox County. Blevins was on her way to work following an ice storm. She and other employees were directed NOT to park in the AOC lot, the AOC using the lot for other court personnel such as Judges.  As a result she had to park elsewhere, finding the place closest to the Courthouse.  She slipped and fell in front of the Sheriff’s Office going to her job.
Procedural History: The C/A affirms the award of the ALJ as affirmed by the WCB.
Issues: Should the place where Blevins was injured (the sidewalk in front of the Sheriff’s office) be deemed a part of AOC’s operating premises?
Holding: Yes
Rules: The AOC impeded her access to parking on its own premises for the sake of its own operating convenience of providing access to other court personnel.  The AOC effectively expanded the parameters of its own “operating premises”.  
The Court noted that this continues to be an issue to be decided on a case by case basis.
Reasoning:  Blevins had been forbidden or discouraged from parking on the AOC premises, but the Sheriff’s lot was inside an area that was authorized by her employer. Blevins was entitled to benefits under the “operating premises” exception because “not only was the parking lot a part of the expanded “operating premises” of the employer, but Blevins was performing a service to the employer by parking where she was directed to free up AOC parking spaces located directly on courthouse property for judges and other court personnel.”
Disposition: Affirmed
Court of Appeals Panel: Combs, Kramer, and Nickell
ALJ: Hon. Steven G. Bolton

Case Name, Citation, Author:  Steel Creations, Et. al v. Injured Workers’ Pharmacy, Et. al (To Be Published Opinion of the Kentucky Court of Appeals written by Judge VanMeter)
Facts: The Kentucky Employers Safety Association, Inc. (KESA) brought this dispute on behalf of several of its member employers. KESA has an arrangement with M. Joseph Medical (MJM), a company that specializes in helping workers’ compensation payment obligors establish prices with prescription drug suppliers.  MJM negotiates with pharmacy benefits managers (PBMs) to secure prices and terms.  KESA pays MJM for the prescription drugs, MJM pays the PBMs, and the PBMs pay the pharmacies.  KESA argues this arrangement allows it to secure prescription drugs at a lower price than what is required by the workers’ compensation regulatory fee schedule.
MJM issues cards to KESA’s member’s injured workers to present to purchase prescription drugs at the local pharmacies with which MJM has arrangements.  Initially, if an injured worker goes straight to a pharmacy without first obtaining a card from MJM, KESA usually pays the pharmacy directly.  If the chosen pharmacy does not have a deal with MJM, KESA has MJM reprice the drug based on MJM’s regular pricing system and MJM requests that the pharmacy accept the price adjustment.  Injured Workers’ Pharmacy (IWP) has refused to accept price adjustments since it prices its prescription drugs based on commercially published “average wholesale prices” (AWPs), prices which IWP claims fit within the regulatory fee schedule contained in 803 KAR 25:092.
Once KESA determined IWP was charging more than other pharmacies for certain drugs, KESA initiated medical fee disputes in a number of cases which were consolidated in this one action on appeal.  
Procedural History: The Chief ALJ, J. Landon Overfield, heard all these disputes in one action, with KESA seeking a determination as to which party, the injured worker or the medical payment obligor, has the right to choose the prescription drug provider.  KESA argued it should be able to choose the pharmacies at which its member employees could fill their prescriptions since pharmacies are not “medical providers” pursuant to the employee choice of provider rule contained in KRS 342.020(1).  
Chief ALJ Overfield made the following six findings:
1)    A pharmacy is a medical provider pursuant to KRS 342.020.
2)    An injured worker has the right to choose the pharmacy at which he or she fills prescriptions.
3)    Neither an employer nor its medical payment obligor/insurer may designate which pharmacy an injured worker must use to obtain prescriptions.
4)    No statutory provision entitled IWP to interest on unpaid or overdue balances owed by KESA.
5)    Sanctions against KESA were justified, pursuant to KRS 342.310, since KESA prosecuted these claims without reasonable grounds.
6)    803 KAR 25:092 §1(6) and §2(2) setting the regulatory fee schedule for workers’ compensation pharmaceutical reimbursement prices, were interpreted to mean that the “wholesale price” is the average price charged by wholesalers of pharmaceuticals to those who provide prescription medication on a retail basis which may or may not be the AWP published in the national publications.  Furthermore, a pharmacist filling a prescription required by a workers’ compensation injury is entitled to be reimbursed in an amount equal to the wholesale price the pharmacist paid for the lowest priced drug which is therapeutically equivalent to the drug used to fill the prescription which the pharmacist has in his establishment at the time he fills the prescription, plus a $5 dispensing fee, plus any applicable federal or state tax or assessment.
Thus, KESA was ordered to pay IWP the AWP-based prices IWP charged.  KESA and IWP appealed to the Board after several petitions for reconsideration.  The Board affirmed all the Chief ALJ’s findings except the assessment of sanctions against KESA, which it reversed.  KESA filed a Petition for Review with the Court of Appeals and IWP and Kem Barnes filed cross petitions.  
Issues: 1) Did the ALJ and Board err in finding the AWP figures to be the “average of actual prices paid to wholesalers” for drugs?
2) Did the ALJ and Board err in finding pharmacies to be “medical providers” under the employee choice rule of KRS 342.020(1)?
3) Did the Board err in reversing the sanctions assessed against KESA by the Chief ALJ?
Holding: 1) No, the ALJ and Board did not err in finding the AWP figures could constitute the “average of actual prices paid to wholesalers” for drugs.
2) No, the ALJ and Board did not err in finding pharmacies to be “medical providers” under the employee choice rule of KRS 342.020(1).
3) The Board did not err in reversing the improper sanctions assessed against KESA by the Chief ALJ.
Rules: 1) 803 KAR 25:092 §2(2) states that a pharmacist shall be entitled to be reimbursed in the amount of the equivalent drug product wholesale price of the lowest-priced therapeutically equivalent drug the pharmacist has in stock, at the time of dispensing, plus a five (5) dollar dispensing fee plus any applicable federal or state tax or assessment.  803 KAR 25:092 §1(6) defines “wholesale price” as “the average wholesale price charged by wholesalers at a given time.” 
2) KRS 342.020 (1) refers to medical providers as those who treat “injury or occupational disease.”  KRS 342.0011(15) includes “medicines” in the definition of “medical services.”
3) An ALJ may assess sanctions against a party only when it has brought, prosecuted, or defended proceedings without reasonable grounds pursuant to KRS 342.310.   
Reasoning: 1) The Court found the use of the actual AWP of a drug as the fee schedule for pharmacy reimbursements is “fair, current, and reasonable.”  The Court noted IWP was never paid in excess of AWP prices plus the $5 dispensing fee.  The Court stated that though KESA is able to obtain a cheaper price by working with MJM and its PBMs, this does not “necessitate the conclusion that IWP’s prices, gathered from AWPs, are not representative of the average wholesale price.”  The Court went on to state that it sees no reason why the commercially published AWPs should be banned from use in the reimbursement system of Kentucky workers’ compensation, and that any such change should be effectuated by the legislature or the Department of Workers’ Claims.
2) The Court agreed with the Board, that the practice of pharmacy requires expertise in the provision, administration, and interaction of prescription medicines in the treatment of injury and disease, and that a common sense reading of the chapter dictates that pharmacies are medical providers providing medical services.
3) Sanctions were improper since the Courts had never ruled on the issue of whether a pharmacy is a medical provider and furthermore, since KESA had a prior opinion from the Office of the Attorney General on which it relied finding that pharmacies are not medical providers.  Based on this opinion from the OAG and the fact that the Courts had never ruled on this issue, KESA had reasonable grounds to bring these medical fee disputes and to request a determination of whether a pharmacy is a medical provider pursuant to KRS 342.020.   
Disposition: The Court of Appeals affirmed the Board and the ALJ on all issues.
Court of Appeals Panel: Combs, Nickell, and VanMeter.
ALJ: Chief ALJ J. Landon Overfield

Case Name, Citation, Author:  Sekisui S-Lec, LLC v. Benton (Not to be Published Opinion of the Kentucky Court of Appeals written by Judge Jones)
Facts: On 1-12-11 the claimant was training a new employee on how to run a glass interlayer film through an emboss machine when her glove became stuck between two rollers pulling her left hand and arm into the machine, ripping off her skin.  The claimant was taken to the University of Kentucky Medical Center where she remained for two weeks.  Soon after being released, she was readmitted to the hospital for additional surgery.  Dr. Michael Best evaluated the claimant and the employer’s request and found she was not at maximum medical improvement (MMI) and referred her to Dr. Joseph Kutz in Louisville.  She was advised she may be a candidate for a hand transplant but was later told she was not a candidate due to her Post-Traumatic Stress Disorder (PTSD).  She treated with Dr. Harry Cecil, Ph.D. for her PTSD.
The claimant testified she could not return to any of the jobs she had performed in the past.  She admitted the Defendant-employer had offered her one-handed work but she declined it.  She was terminated from her employment with Sekisui S-Lec in February of 2013.  She testified she had not worked for any employer since that time and could not due to her PTSD.  She also stated her belief that the PTSD also prevented her from entering any sort of vocational training.  The claimant filed a Form 101 alleging “dismemberment of her left fingers, including most of her left thumb; de-gloving of her left hand, wrist, elbow, forearm, and upper arm, atrophy of her left shoulder, and post traumatic stress syndrome.”
The claimant filed Dr. Kutz’ report finding 55% whole-person impairment, Dr. Cecil’s report stating she would have difficulty functioning due to her PTSD, chronic pain and amputation.  He recommended ongoing counseling.  The claimant also filed the report of Dr. Best who had evaluated her on behalf of the Defendant-employer.  Dr. Best had found claimant’s condition to be “very complicated” and requiring “complex care and management.”  Furthermore, the claimant filed the report of Dr. Paul Evensen, Ph.D., a psychologist who diagnosed her with major depression, moderate with anxiety, and PTSD in partial remission.  Dr. Evensen assessed a 30% whole-person impairment rating for these psychiatric conditions and found the claimant incapable of any work due to fluctuations in mood related to depression.  
Finally, the claimant filed OSHA records over the Defendant-employer’s objection.  These records demonstrated the employer’s citation for a serious violation related to a lack of guarding over the rollers in which claimant’s hand and arm were pulled and trapped.  Management representatives admitted they knew the rollers were not guarded and stated they had a policy that employees were not to attempt to “re-thread” film into the rollers as the claimant was doing at the time of the injury.  This evinced management’s knowledge that the rollers were a hazard.  The claimant was initially fined $7,000 but this was later reduced to $5,000.
The Defendant-employer filed the report of Dr. Thomas Gabriel.  Dr. Gabriel assigned 55%, just as Dr. Kutz had, but found the claimant had not reached MMI while finding she could return to one-handed duty.  The Defendant-employer also filed the report of Dr. Timothy Allen, a psychiatrist who evaluated the claimant at the Defendant’s request.  He stated the claimant suffered from chronic PTSD that was in partial remission.  He found she could drive and perform activities of daily living.  
At the formal hearing, Christopher Sellers, the assistant production manager at the employer, testified it was not proper for the claimant to rethread the machine as she was doing at the time of injury.  However, he also admitted he was unaware of any documentation the claimant had been trained regarding the proper procedures on the emboss machine.
Procedural History: ALJ Jeanie Owen Miller found claimant to be permanently totally disabled due to the left upper extremity injuries and the PTSD.  The ALJ also awarded a 30% enhancement of income benefits due to the Defendant-employer’s safety violation regarding the unguarded rollers.  The Defendant had asked for a reduction related to the claimant violating the employer’s safety rule prohibiting employees from “rethreading” the film into the machine.  ALJ Miller found the claimant did not commit a safety violation and thus, did not reduce the award as the employer requested.  The Defendant appealed to the Board arguing the evidence did not support a permanent total disability award, that the evidence did not support a finding that the accident occurred due to its failure to comply with applicable safety regulations, and that the evidence compelled a finding that the claimant’s injuries were caused by her own intentional violation of a safety rule.  The Board disagreed with the Defendant-employer on all counts and affirmed the ALJ.  The Defendant appealed to the Court of Appeals.
Issues: 1) Did the ALJ base the finding of permanent total disability on substantial evidence?
2) Did the ALJ rely on substantial evidence in finding that the claimant’s injury was caused by the Defendant-employer’s failure to comply with applicable safety statutes or regulations?  Was the OSHA report substantial evidence without the authentication of the report by the OSHA investigator?
3) Did the evidence compel a finding the claimant’s injury resulted from her intentional violation of the Defendant-employer’s safety rule?
Holding: Yes, the ALJ relied on substantial evidence in finding the claimant permanently totally disabled and due a 30% enhancement of income benefits for the employer’s failure to comply with applicable safety regulations.  Regarding the Defendant’s allegation that the claimant caused her own injury by failing to follow the employer’s safety rule, the evidence did not compel such a finding.  
Rules: Before making a finding of permanent total disability, an ALJ must make a five-step analysis as follows: 1) Determine whether the claimant suffered a work-related injury. 2) Determine what, if any, impairment rating the injury caused the claimant. 3) Determine what permanent disability rating the claimant has as a result of the impairment rating selected by the ALJ. 4) Determine if the claimant is able to perform any type of work. 5) Determine whether the total disability is the result of the work injury.  The factors to consider in determining whether a claimant can return to employment under #4, as set forth in Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000), include: the claimant’s post-injury physical, emotional, intellectual, and vocational status and how those factors interact; a consideration of the likelihood that the particular claimant would be able to find work consistently under normal employment conditions; whether the claimant will be able to work dependably; and whether the claimant’s physical restrictions will interfere with vocational capabilities.  
Regarding the 30% enhancement of benefits due to the Defendant-employer’s failure to comply with a safety regulation, an employer is presumed to know what specific state and federal statutes and regulations concerning workplace safety require.  Therefore, though KRS 342.165 requires that an employer’s failure to comply with a statute or regulation relative to installation or maintenance of safety appliances or methods be intentional, the intent is inferred from the employer’s failure to comply.  If the violation “in any degree” causes a work-related accident, KRS 342.165(1) applies.  Chaney v. Dags Branch Coal Co., 244 S.W.3d 95, 96-97 (Ky. 2008)  Furthermore, the Kentucky Rules of Evidence govern workers’ compensation proceedings.  KRE 803(8) allows for introduction of certain public records and reports “even though the declarant is available as a witness.”  The Court stated that while the OSHA report may have qualified as a public record in this exception to the hearsay rule, it did not need to reach a conclusion on that issue as the ALJ’s finding that the employer violated the safety regulation, which in turn caused the claimant’s injury, was not based solely on the OSHA report and citation, but also upon the claimant’s testimony, which was not controverted by the Defendant-employer.
Regarding the Defendant-employer’s allegation of a safety violation by the claimant, KRS 342.165(1) requires that the employee’s failure to follow a safety rule be intentional.  
Reasoning: The Defendant’s appeal requires consideration of only #4 in the five-step analysis regarding permanent total disability.  This is the analysis regarding whether a claimant is able to perform any type of work.  While the ALJ must rely on medical proof to find that a claimant sustained a permanent impairment rating, the ALJ is not required to base her conclusion that the claimant cannot perform any work on expert opinions.  Commonwealth Transportation Cabinet v. Griffey, 42 S.W.3d 618, 621 (Ky. 2001)  In certain cases, lay testimony, even if just that of the claimant, may be sufficient to support an award of permanent total disability.  Id.  What an ALJ must do, however, is consider and apply the factors from Hamilton to the unique facts in the case before her.  It is not enough for the ALJ to merely state she considered the factors and found the claimant permanently totally disabled.  She must apply the factors and make an “individualized determination of what the worker is and is not able to do after recovering from the work injury.”  McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001)  In the case at hand the ALJ clearly defined how she applied the factors of Hamilton to the claimant’s age, education, skills, work experience, and physical and psychiatric conditions to find that Dr. Evensen’s opinion that claimant cannot sustain employment on an ongoing and regular basis to be the most persuasive evidence concerning claimant’s ability to perform any type of work.  Clearly, the ALJ cited substantial evidence supporting her finding of permanent total disability.  
Concerning the 30% enhancement of benefits due to the employer’s failure to comply with a safety regulation, a specific federal regulation, 29 C.F.R. § 1910.212, requires guarding on machines like the one claimant was working on when injured.  All evidence suggested there was no guarding on the machine.  As there was no evidence to the contrary, the ALJ determined the employer violated the federal regulation.  This was sufficient basis to infer the Defendant-employer’s “intentional failure” to comply with the regulation.  Based on the claimant’s testimony concerning how the accident occurred, the ALJ further found that the lack of guarding contributed to the resultant injuries.  Therefore, the ALJ properly concluded that the 30% enhancement of income benefits prescribed by KRS 342.165(1) applied.
Regarding the ALJ’s failure to reduce the claimant’s income benefits by 15% for failure to comply with the employer’s safety rule, the ALJ properly weighed the evidence and found the claimant’s testimony reliable regarding her lack of knowledge of safety procedures on the emboss machine due to this being the first time she had ever worked on the machine.  The Defendant-employer offered no evidence to contradict the claimant’s testimony that this was the first time she had been assigned to this machine and that she had never been trained on this machine.
Disposition: The Court of Appeals affirmed the Board and the ALJ on all issues.
Court of Appeals Panel: Jones, Taylor, and Thompson.
ALJ: Jeanie Owen Miller

Case Name, Citation, Author:  BellSouth Telecommunications D/B/A AT&T v. Blackburn (Board Member Rechter) 
Facts: Blackburn, a service technician, fell from a ladder on 11-15-13, later alleging left knee, cervical spine, and lumbar spine injuries related to the fall.  Plaintiff had a prior left knee injury requiring surgery in 2005.  His left knee resolved after that surgery and he did not have treatment for it again until after the 11-15-13 event.  Plaintiff also had prior problems with his lower back and neck.  He admitted to taking Gabapentin for his back several months before the 11-15-13 work event.  He underwent cervical surgery in 2008 but stated it had resolved and was not bothering him leading up to the 11-15-13 work event.  
Following the 11-15-13 work event, the Plaintiff treated with Dr. Marcis Craig for his left knee.  Dr. Craig performed a left medial meniscus repair on 12-18-13 with unsatisfactory results.  The Plaintiff continued to have left knee pain.
The Plaintiff initially saw Dr. Ronald Faulkner for his lower back on 11-20-13.  Dr. Faulkner ordered an MRI of lower back, left knee and shoulder.  He had seen Dr. Faulkner before the work event (on 9-13-13) and had been complaining of joint pain, back pain, and neck pain at that time and received a refill of prescriptions for Tramadol and Gabapentin Dr. Faulkner had prescribed in August of 2013.  
Mr. Blackburn then saw Dr. Thad Jackson for ongoing low back pain and left leg numbness on 1-3-14.  Dr. Jackson diagnosed low back pain due to lumbar disc herniation with left annular tear and recommended PT.
Dr. John Guarnaschelli treated Mr. Blackburn before and after the 11-18-13 work event.  In September 2010, Dr. Guarnaschelli noted recurrence of back pain and atypical leg pain.  He noted a 9-7-10 MRI showed “some degenerative changes.”  When Dr. Guarnaschelli saw the Plaintiff again on 2-6-14 he noted an MRI from November of 2013 revealed a left L2-3 disc herniation.  Blackburn complained of back pain in 2012 and an MRI at that time showed a bulging disc at L2-3.  Dr. Guarnaschelli compared the 2012 and 2013 MRIs and noted there was a worsening of the condition of the L2-3 disc and that there was now an annular tear.  Dr. Guarnaschelli performed a left L2-3 laminectomy and discectomy on 5-13-14.  
Dr. Michael Best performed an IME for the Defendant-employer, AT&T.  Dr. Best assigned 10% whole-person impairment for the lower back and 1% whole-person impairment for the left knee.  He assigned restrictions of no climbing telephone poles and no lifting over 50 lbs. but also stated that if Plaintiff’s rehab went well, he could return to regular duty in the next three to four months.
Dr. Jules Barefoot performed an IME for the Plaintiff.  Dr. Barefoot assigned 13% whole-person impairment for the lower back and 8% whole-person for the left knee for a combined 20% whole-person impairment.  He stated the Plaintiff would not be able to return to his job with AT&T.  Dr. Barefoot assigned restrictions of carrying and lifting only “light loads,” no squatting, crouching, crawling, or kneeling, and also restricted him from working on ladders or scaffolding.  
Procedural History: ALJ Grant Roark found the Plaintiff permanently totally disabled but also found Plaintiff had 15% pre-existing and active occupational disability which was carved out of the permanent total disability award.  Judge Roark ordered AT&T to pay Plaintiff’s costs and attorney fees after 4-9-15 as he found AT&T’s failure to provide a counter-offer to Plaintiff’s settlement demand from the date of Plaintiff’s deposition forward was not justified since the claim had been accepted as compensable.  AT&T filed a Petition for Reconsideration arguing there was insufficient evidence to support an award of permanent total disability and also argued Judge Roark erred in ordering Defendant to pay Plaintiff’s costs and a portion of the Plaintiff’s attorney’s fee.  The Plaintiff filed a Petition asking for additional findings of fact concerning the carve-out for pre-existing and active impairment, arguing there was no basis for the carve-out.  Judge Roark denied the Petitions.  The Defendant-employer appealed to the Workers’ Compensation Board and the Plaintiff cross-appealed.
Issue: 1) Did the ALJ provide findings showing his determination of permanent total disability was based on sufficient evidence?
2) Was ALJ’s assessment of costs and fees against the Defendant appropriate?
3) Did the ALJ err and abuse his discretion in carving out 15% of the permanent total disability award for pre-existing and active disability?
Holding: 1) The ALJ did not make appropriate findings of fact concerning his determination of permanent total disability and therefore the matter was remanded to the ALJ for additional findings of fact.
2) The ALJ’s assessment of costs and fees against the Defendant for unfair claims settlement practices was inappropriate as KRS 342.267 only gives that authority to the Commissioner of the Department of Workers’ Claims.  
3) The ALJ did not perform the proper analysis regarding his carve-out of 15% of the permanent total disability award for pre-existing and active disability.  Therefore, this issue was remanded to the ALJ for further findings.    
Rule: 1) In determining whether a claimant is permanently totally disabled, an ALJ must consider several factors including the workers’ age, educational level, vocational skills, medical restrictions, and the likelihood he can resume some type of work under normal employment conditions.  Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000) A claimant’s own testimony as to his condition has some probative value and is appropriate for consideration by the ALJ.  Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979)  
2) Whether a carrier’s actions constitute an unfair claims settlement practice pursuant to KRS 342.267 is a determination left exclusively to the Commissioner of the Department of Workers’ Claims.  There is no statutory provision by which an ALJ may sanction an employer pursuant to KRS 342.267.  The sanctions the ALJ may assess pursuant to KRS 342.310 when the ALJ deems an action has been “brought, prosecuted, or defended without reasonable grounds,” may not be assessed for a violation of the unfair claims settlement practices provisions of KRS 342.267.
3) Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003) established the analysis for determining whether there is an exclusion for pre-existing active disability.  The Court explained an exclusion from a total disability award must be based on a finding of disability rather than impairment.  
Reasoning: 1) The ALJ did not engage in the appropriate analysis of all the factors in Hamilton.  The ALJ did not discuss the Plaintiff’s testimony and thus did not identify which portions of Plaintiff’s testimony he relied.  Furthermore, he did not discuss Plaintiff’s education level or his prior work history as a factor in his future employability.  The mere statement that he relied upon Plaintiff’s testimony, the medical evidence from Dr. Barefoot, and the listing of the factors of age, education and work history is insufficient.
2) The ALJ cited KRS 342.310 (the sanctions provision) in the original Opinion and then cited KRS 342.267 in the Order on reconsideration.  However, it was clear that the ALJ was attempting to assess the costs and fees due to his opinion that the Defendant “acted unreasonably by failing to comply with the statute that requires it to attempt a good faith, prompt and fair settlement of the claim.”
3) The ALJ did not discuss the Plaintiff’s uncontradicted testimony that he was under no medical restrictions and was performing his full, regular-duty job activities prior to the work injury.  It was incumbent upon the ALJ to acknowledge and discuss this fact in his analysis of this issue.  
Disposition: Affirmed in part, vacated in part, and remanded.
Board Members: Rechter, Stivers and Alvey all concur.
ALJ: Roark

Case Name, Citation, Author:  Ford Motor Co. v. Figg (Board Member Stivers) 
Facts: Figg alleged a 9-20-14 injury to her right arm and shoulder.  Dr. Edward Tillett performed a right shoulder surgery on 3-6-15.  
Procedural History: ALJ Chris Davis determined the 9-20-14 work event aroused a dormant pre-existing right shoulder condition into disabling reality resulting in a rotator cuff injury warranting 7% whole-person impairment.   Judge Davis also found the surgery was compensable.  He awarded TTD benefits for the period from 9-21-14 through 7-9-15, even though Plaintiff was working light duty and earning her full wages for all of this time except the period from 3-6-15 through 7-6-15.  Judge Davis found the Plaintiff had lost the physical capacity to perform the same type of work and enhanced her PPD award with the 3x multiplier prescribed by KRS 342.730(1)(c)(1). 
Ford filed a Petition for Reconsideration on the awarded TTD (except for the period from 3-6-15 through 7-6-15) and the 3x enhancement of the PPD award. The ALJ denied the Petition on both issues.
Issue: 1) Did the ALJ err in awarding TTD benefits for the periods when the claimant had returned to light duty performing legitimate work that was part of her job duties before the injury?
2) Did the ALJ err by enhancing the PPD award with application of the 3x multiplier and by failing to perform an analysis pursuant to Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003)?
Holding: 1) The ALJ did not perform the proper analysis to award TTD benefits for the period from 9-21-14 through 3-6-15 as the ALJ did not consider whether the light duty work claimant was performing during this period was “customary” as defined by the recent “To Be Published” Kentucky Supreme Court decision in Trane Commercial Systems v. Tipton, 2016WL671170. This issue remanded to the ALJ for the proper analysis. 
2) The ALJ did not err in enhancing the PPD benefits with the 3x multiplier and by failing to perform a Fawbush v. Gwinn analysis as the Defendant did not provide evidence that the Plaintiff was back to work earning an equal or greater average weekly wage, and thus, could not argue that she would continue to earn an equal or greater wage for the indefinite future as is necessary for a Fawbush analysis.
Rule: 1) KRS 342.0011(11)(a) defines “temporary total disability” as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment;”  The Kentucky Supreme Court held in Trane: As “employment” is not defined by statute within KRS 342, “absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her physical restrictions and for which she has the experience, training, and education; and the employee has actually returned to employment.”
2) A determination of whether KRS 342.730(1)(c)(2) is applicable (thus giving the ALJ the option of applying either the 2x multiplier or the 3x multiplier in a Fawbush analysis) required a finding of Figg’s AWW at the time of injury as well as a finding of her AWW after returning to work following the injury.  The ALJ failed to make a finding regarding the pre-injury AWW and neither party asked for a finding of the AWW in a Petition for Reconsideration.  Furthermore, the Defendant filed a post-injury wage statement that failed to show the Plaintiff was earning an equal or greater average weekly wage.  As it was not established that the Plaintiff returned to work earning an equal or greater AWW, the ALJ was not required to perform the Fawbush analysis.  (Both parties agreed the Plaintiff had lost the physical capacity thus warranting application of the 3x multiplier.)
Reasoning: 1) The Board found the ALJ failed to make any analysis of the work duties the claimant was performing while on light duty and instead simply found that because she was performing light duty she was entitled to TTD due to an inability to return to customary work.  
2) Though the ALJ failed to determine the pre-injury AWW (even though the Defendant filed a pre-injury wage certification), the Defendant failed to establish the post-injury AWW.  The ALJ was not required to perform a Fawbush analysis regarding whether the 2x multiplier could have been more appropriate than the 3x multiplier because the Defendant failed to offer evidence establishing the Plaintiff returned to work at an equal or greater AWW.
Disposition: Affirmed in part, vacated in part, and remanded.
Board Members: Stivers, Alvey (concurring), and Rechter (concurring in result only).
ALJ: Chris Davis

Case Name, Citation, Author:  Ridgewood Trucking Co. v. Francis (Board Chairman Alvey) 
Facts: Plaintiff alleged injuries to his ribs, right leg, low back, and left shoulder stemming from a 9-17-12 MVA which occurred when an approaching coal truck jack-knifed and collided with the coal truck he was operating.  He also alleged cumulative trauma due to driving coal trucks from 1976 to 2014.  Francis began working for Ridgewood Trucking in July of 2012.  Attached to the Form 101, the Plaintiff filed hospital records following the 2012 MVA and also filed the 6-24-14 note of chiropractor Dr. Dale Williams who found that Francis suffered from cervicalgia, lumbalgia, right hip pain, and bilateral knee pain.  Dr. Williams opined that though Mr. Francis did have the 2012 MVA, his conditions were degenerative in nature and related to the cumulative effect of “the occupational hazards of the truck industry for an extended period of time.” 
Following the accident, the records of Hazard Appalachian Regional Hospital confirmed complaints regarding his left shoulder, neck, back, hip, right leg, and a cut under his eye.  Apparently he had no treatment for the injuries following that hospital trip (other than seeing Dr. Wicker after the accident and getting a return to work note from that physician on 9-30-12) until August of 2014.  He has been treating with chiropractor Dr. Williams since August of 2014.  The Plaintiff stopped working in June of 2014 due to problems with weight bearing on his right hip and left shoulder problems.  
Dr. Arthur Hughes evaluated the claimant on 8-26-14 and diagnosed neck pain with radiculopathy, left shoulder pain and limitation of range of motion (ROM), low back pain with radiculopathy, and right hip pain and limited ROM.  Dr. Hughes assessed a total whole-person impairment rating of 18%, assigning 5% to the cervical spine, 5% to the lumbar spine, 5% to the left shoulder, and 4% to the right hip.  He attributed all this impairment to the 2012 MVA and found Plaintiff does not retain the physical capacity to perform the type of work he was performing at the time of the injury.  He made no mention of repetitive or cumulative trauma.
Dr. Michael Best evaluated Mr. Francis at the Defendant-employer’s request on 12-21-14.  Dr. Best found the Plaintiff to warrant a 0% impairment rating and opined he exhibited subjective complaints without objective medical findings.  He stated Mr. Francis could return to his job driving a coal truck.
The Defendant-employer submitted a vocational evaluation report from Dr. Ralph Crystal.  Dr. Crystal opined the Plaintiff does not have a complete inability to perform work for remuneration on a regular and sustained basis in a competitive economy and noted that based on Dr. Best’s opinions, he could return to work as a coal truck driver.
Procedural History: ALJ Levy awarded PPD benefits based on 10% impairment for the neck and back (5% to each) related to cumulative trauma manifesting on 6-24-14, but denied Plaintiff’s claim for injuries to his right hip, bilateral knees, left shoulder, right leg, and ribs.  He awarded medical benefits for the neck and back only.  The ALJ stated he decided the acute effects of the MVA in 2012 subsided and resulted in no permanency based on the limited treatment following the accident.  The ALJ noted Dr. Hughes and Dr. Best disagreed regarding physical restrictions, but stated that based on his determination of the Plaintiff’s limitations regarding turning his head and operating the foot pedals in the truck for an extended period of time, the ALJ concluded Mr. Francis had lost the physical capacity to drive a coal truck and applied the 3x multiplier to the award of 10% permanent partial disability.  
The Defendant-employer filed a Petition for Reconsideration on the same issues appealed to the Board.  The ALJ denied the Petition and Defendant-employer appealed to the Board.
Issue: 1) Did the ALJ err in awarding PPD benefits for a cumulative trauma manifesting in June of 2014 if the only impairment assessed was for the 9-17-12 MVA?
2) In the alternative, could the Defendant-employer only be held liable for its proportionate share of any award based on cumulative trauma pursuant to Southern Ky. Concrete Contractors, Inc. v. Campbell, 662 S.W.2d 222 (Ky. Ct. App. 1983)?
3) Was the ALJ’s award of future medical benefits related to the neck and back appropriate?
Holding: 1) Yes, the ALJ erred in awarding PPD benefits for the alleged cumulative trauma injury as the only impairment rating in the record, upon which the ALJ relied, was assigned for the effects of the 2012 MVA.   
2) There was no reason for the Board to address the alternative argument regarding apportionment as the Board determined there was no rating in the record for the alleged cumulative trauma claim and thus, no PPD award could be rendered for the alleged cumulative trauma. 
3) On remand, the ALJ must perform an analysis consistent with FEI Installation, Inc. v. Williams, 214 S.W.3d at 318-319, to determine whether future medical benefits are appropriate for the neck and back.
Rule: While an ALJ may be able to pick, choose, reject, believe, or disbelieve various parts of the evidence, his or her determination must be based on the evidence of record.  As noted in Miller v. Go Hire Empl. Dev., Inc., 473 S.W.3d 621,634 (Ky. App. 2015):
When multiple work-related injuries are alleged, it is imperative that an ALJ’s opinion distinguish the condition to which factual findings pertain. An ALJ’s discretion to pick and choose from the evidence does not authorize conflicting findings of fact.  A witness may be inconsistent, but an ALJ may not, and on review an appellate court must search for consistency in interpreting an ALJ’s findings.
Regarding the award of future medical benefits, pursuant to FEI Installation, Inc., an ALJ may award future medical benefits for a work-related injury even though a claimant has reached MMI and no permanent impairment rating was assessed.  In order to prove entitlement to future medicals with no impairment rating, the Plaintiff must show that the injury event produced a loss, loss of use, or derangement of the subject body part or that the injury event has caused an impairment to Plaintiff’s earning capacity (loss of job opportunities and/or a shortened work life), and that the medical treatment is reasonably required for the effects of the work event.
Reasoning: Once the ALJ determined the effects of the 9-17-12 MVA had resolved with no permanency, he was not permitted to utilize the impairment rating assigned for that event by transferring it to the alleged cumulative trauma claim with manifestation date of June, 2014.   
As the Board reversed the award of PPD benefits, it was necessary to remand the matter to ALJ Levy for a proper analysis of whether the award of future medical benefits for the neck and back is proper under the FEI Installation, Inc. analysis.
Disposition: Affirmed in part, reversed in part, and remanded.
Board Members: Stivers, Alvey, and Rechter (all concurring)
ALJ: Udell Levy

Case Name, Citation, Author:  Riverway, Inc. v. Price (Board Chairman Alvey) 
Facts: Plaintiff received a retraining incentive benefit (RIB) by an award dated 6-30-92 in a claim he filed against Riverway, Inc.  Thereafter, he continued to work for Riverway and experienced additional exposure to coal dust until 7-13-12.  Plaintiff filed a new Form 102 Application for Resolution of Coal Workers’ Pneumoconiosis claim on 10-16-12.  In the new claim, the ALJ concluded the Plaintiff is entitled to an award based on 75% disability.  
Procedural History: Riverway requested a credit in the amount of the prior RIB award.  The ALJ determined the statutory provisions for obtaining a credit apply solely to a reopening under KRS 342.125(5).  The ALJ noted this was a new claim for additional exposure after the RIB award, and that there is no overlap in the periods of the awards.  Accordingly, the ALJ denied Riverway’s request for the credit.  
The Defendant-employer filed a Petition for Reconsideration arguing the ALJ erred in interpreting KRS 342.125, and failed to apply the statute correctly per its intent with regard to successive claims for benefits under KRS 342.732.  Riverway contended the provisions of KRS 342.125(5) apply to any new claim for additional benefits under KRS 342.732.  The ALJ overruled the Petition in finding there was no overlap of the current award with the RIB award that had been fully paid and cited the Board’s opinion in Sidney Coal Co. v. Mullins, Claim No. 2006-01038 from 2008 in which the Board found the provisions of KRS 342.125 apply only to reopenings.
Issue: Did the ALJ err in failing to grant a credit for the prior RIB award?
Holding: No, the ALJ did not err in failing to grant a credit for the prior RIB award.
Rule: The four-year time limitation specified in KRS 342.125(3) applies to the entire statute and there is no exception given in this section for an “application” made pursuant to KRS 342.125(5).  Therefore, the Board is compelled to find that KRS 342.125(5) and the reduction of benefits prescribed in KRS 342.125(5)(b) for previously awarded RIB benefits apply only to the reopening of coal workers’ pneumoconiosis claims made within four years of the original award or order.
Reasoning: The Defendant-employer argued the word “application” as used in KRS 342.125(5) allows for a reduction of benefits awarded in a new claim, and not just in reopenings, for previously paid RIB benefits.  The Board noted the ambiguity created by the legislature’s use of the word “application” in KRS 342.125(5), but stated that since KRS 342.125(3) and its four-year limitation applies to the entire statute, it could not interpret KRS 342.125(5) to allow a reduction in the benefits awarded in the new claim filed 20 years after the original award of RIB benefits in 1992.
Disposition: ALJ affirmed.
Board Members: Stivers, Alvey, and Rechter
ALJ: Roland Case

Case Name, Citation, Author:  Trane Commercial Systems v. Tipton (Justice Keller) To Be Published Opinion from the Supreme Court of Kentucky.
Facts: On 5-6-10, Tipton fell while working in the control department testing air conditioner units and fractured her right patella.  At that time, Tipton’s position required her to frequently kneel, crawl, bend and squat to connect electrical components in the units for testing.  Her prior position with Trane had involved assembling the units.  
Following the injury, Tipton was off work until 3-22-11 when she was released by her treating physician to perform sedentary work with no overtime.  Trane provided her with a position assembling electrical-circuit boards, earning the same hourly wage as she had at the time of the 5-6-10 injury.  This position required no squatting, bending, kneeling or crawling and allowed Tipton to either sit or stand.  
On 7-7-11, Tipton’s treating physician released her to perform her pre-injury job duties but retained the restriction of no overtime.  Tipton did not believe she could perform her pre-injury job duties without problems, so she successfully bid into the circuit board assembly position on a permanent basis.  She eventually began working overtime again and her hourly wage increased as well.  
Trane terminated temporary total disability (TTD) benefits when Tipton returned to work on 3-22-11.  Tipton argued she was due TTD benefits through 7-7-11 when her treating physician declared maximum medical improvement (MMI) and released her to return to her pre-injury work activities.  
Procedural History: ALJ Polites determined Tipton was not entitled to TTD benefits for the period after she had returned to work for Trane with restrictions.  The Workers’ Compensation Board affirmed the ALJ, but the Court of Appeals reversed, finding Tipton entitled to TTD benefits, even though she had returned to work for Trane.  The Court of Appeals cited Bowerman v. Black Equipment Co., 297 S.W.3d 858 (Ky. App. 2009) and pointed out that while Tipton had returned to work, it was not work that was customary to her as she had never assembled the circuit boards before the injury of 5-6-10.  Trane appealed to the Supreme Court.
Issue: Was Plaintiff entitled to TTD benefits for the period from 3-22-11 through 7-7-11, considering she had returned to employment with Defendant earning an equal hourly rate, performing work that was not menial, though it did involve job duties she had not performed before the subject injury?
Holding: No.  Given the facts of this particular case, the Plaintiff was not entitled to TTD benefits for the period in question.  
Rule: KRS 342.0011(11)(a) defines “temporary total disability” as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment;”  As “employment” is not defined by statute within KRS 342, the Court found, “absent extraordinary circumstances, an award of TTD benefits is inappropriate if an injured employee has been released to return to customary employment, i.e. work within her physical restrictions and for which she has the experience, training, and education; and the employee has actually returned to employment.”
Reasoning: The Court, citing Double L Const., Inc. v. Mitchell, 182 S.W.3d 509 (Ky. 2005), noted that “[t]he purpose for awarding income benefits such as TTD is to compensate workers for income that is lost due to an injury, thereby enabling them to provide the necessities of life for themselves and their dependents.”  The Court stated it would be unreasonable and would “not further the purpose for paying income benefits, to pay TTD benefits to an injured employee who has returned to employment simply because the work differs from what she performed at the time of injury.”  The Court pointed out that while Tipton had not previously assembled the circuit boards, she had assembled the air conditioning units and failed to produce any evidence suggesting that assembling circuit boards “required significant additional training or that it was beyond her intellectual abilities.”  The Court continued, “In fact, it appears that Tipton was certainly capable of and wanted to perform the circuit board assembly job because she bid on and was awarded the job after her release to full-duty work.”
Disposition: The Supreme Court reversed the Court of Appeals.
Supreme Court Justices: All sitting.  All concur.
ALJ: Polites

Case Name, Citation, Author:  LKLP CAC, Inc. v. Fleming (Board Member Stivers) 
Facts: On 7-30-10 ALJ James Kerr entered a PPD award for 17% whole-person impairment due to a 10-22-07 lumbar injury with a psychiatric component.  The ALJ relied on Dr. David Herr’s13% impairment assigned to the physical injury and Dr. Robert Granacher’s 5% assigned to the psychiatric component for a combined value of 17% whole-person impairment.  
On 3-26-14 Plaintiff filed a Motion to Reopen alleging both his physical and psychological conditions had worsened.  In support of the Motion the Plaintiff filed the 47% whole-person impairment rating of Dr. Jerry Brackett for the physical injury and the 12% whole-person impairment rating of Dr. Megan Green regarding the psychological injury.  Once the matter was reopened, Fleming also submitted the report of Dr. Bruce Guberman who assigned an additional 15% whole-person impairment on top of the 13% whole-person impairment found by ALJ Kerr in the original action.  LKLP CAC, Inc., the Defendant-Employer relied upon Dr. John Vaughan who opined that the Plaintiff had 23% whole-person impairment which would have already been present on 3-24-09 when the Plaintiff reached maximum medical improvement (MMI).
Procedural History: ALJ Roland Case rendered a decision finding the Plaintiff had 23% whole-person impairment for the physical injury, relying on the opinion of Dr. Vaughan regarding total impairment.  He issued an Opinion finding the Plaintiff’s impairment for the physical injury had increased from 13% to 23% and Plaintiff’s impairment for the psychiatric component had increased from 5% to 12% (based on Dr. Green’s opinions on the psych issue).  The ALJ found the Plaintiff’s total whole-person impairment had increased from 17% to 32%, utilizing the combined-value chart, and noted the 3x multiplier applied as did the 1.5 factor which resulted in PPD calculations exceeding 99% of 2/3 of Plaintiff’s AWW.  Therefore, the PPD benefits were reduced to 99% of 2/3 of the Plaintiff’s AWW to be increased from the date of the Motion to Reopen until the end of the original PPD award period.  After a denied Petition for Reconsideration, LKLP appealed to the Board.
Issue: Did the ALJ abuse his discretion in relying on Dr. Vaughan’s 23% whole-person impairment rating while also deciding that the Plaintiff’s physical condition had worsened since the original Award?  Did the ALJ err by not providing an analysis of when Fleming reached MMI and why he believed Fleming’s physical condition had worsened?
Holding: No.  The ALJ did not abuse his discretion in finding the Plaintiff’s physical condition had worsened while also finding that Dr. Vaughan’s 23% whole-person impairment rating was most credible.  The ALJ provided an adequate analysis to support his finding regarding the worsening of physical condition and increased impairment.   
Rule: An ALJ may draw reasonable inferences from the evidence, reject any testimony, and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same adversary party’s total proof.  Jackson v. General Refractories Co., 581 S.W.2d 15 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  
Reasoning: The ALJ was free to rely on Dr. Vaughan’s impairment rating while giving no credence to Dr. Vaughan’s opinion there had been no worsening of condition since the original Opinion and Award of 2010.  ALJ Kerr’s finding of 13% impairment in the original action is res judicata.  Thus, Dr. Vaughan’s opinion that Plaintiff has 23% whole-person impairment constitutes objective medical evidence of worsened condition/impairment.  
Disposition: ALJ’s enhanced Award affirmed.
Board Members: Rechter and Stivers concurred in the decision.  Chairman Alvey dissented.
ALJ: Case

Case Name, Citation, Author:  Thomas v. Central Hardin High School (Board Chairman Alvey) 
Facts: Plaintiff was school counselor and assistant cheerleading coach at Central Hardin High School.  On 8-20-13 she passed out in the locker room and hit her lower back on a wooden locker that had no door, and received a laceration to the head.
Ms. Thomas testified she had been prescribed Klonopin for panic attacks and difficulty sleeping before the syncopal episode on 8-20-13.  She usually took this medication every night but had not taken it for several days because the prescribing physician had been out of town and she had run out of the medication and had no refills.  She testified she had never passed out like this before or after 8-20-13.
The Plaintiff’s daughter, one of the cheerleaders, witnessed the fall and stated Plaintiff’s back hit against the back of the wood locker when she fell backward and she then slid down the locker and the other cheerleading coach ran over to support her so her head would not strike anything.  The other coach, Ms. Thompson, testified that she did make it to Plaintiff to support her head and that Plaintiff landed on her buttocks on the floor and was slumped with her back against the locker and adjacent file cabinet.  This other coach disputed Plaintiff’s daughter’s account that Plaintiff’s back actually struck the locker.  Ms. Thompson testified Plaintiff landed directly on the floor on her buttocks.  Another cheerleader present testified Plaintiff did not strike anything on the way down and that Ms. Thompson was able to catch Plaintiff in time and “floated her down to the ground.”
The Plaintiff was taken to Hardin Memorial Hospital where diagnostic studies revealed an acute burst fracture at L4.  She reported to ER personnel that she had felt “shaky” for several days prior after running out of Klonopin.  She was in the hospital for three days.  The discharging physician, Dr. Yerkes, diagnosed Benzodiazepine withdrawal seizure and L4 compression fracture and prescribed Percocet, Klonopin, Colace, and Celexa and told her to follow up with Dr. Thad Jackson. 
The Plaintiff presented the IME report of Dr. James Owen.  Dr. Owen made the same diagnosis as Dr. Yerkes and found the L4 compression fracture was related to the fall at work while assigning a 21% impairment rating.  Dr. Owen stated if the Plaintiff had not been in the locker room and near the hollow locker frame, she probably would not have suffered a compression fracture.  Dr. Owen stated that a combination of her Klonopin cessation and her weight, activity and electrolyte disturbance from sweating and the stress of the day were all contributing factors to her Benzodiazepine withdrawal seizure.
The Defendant filed the peer review report of Dr. F. Albert Olash.  Dr. Olash opined the seizure was entirely due to the Klonopin cessation and had nothing to do with her work activities.  Dr. Olash noted this seizure just as easily could have occurred while she was driving or at home.
The Defendant also filed the records review report of Dr. George Nichols, a forensic pathologist.  Dr. Nichols opined that the syncopal episode was caused by the Benzodiazepine withdrawal, but he also stated that after his review of all the medical records and witness statements, he believed the Plaintiff likely fell into the open locker and struck the lower shelf within the locker.  
Finally, the Defendant also introduced a records review report from Dr. Daniel Wolens who agreed with all the other experts who found the fall was caused by the Benzodiazepine withdrawal.  He disagreed with Dr. Owens’ finding regarding other causal elements, noting Plaintiff was in good physical condition and had not exerted herself enough that day for it to be a contributing factor to her syncopal episode.  Dr. Wolens opined that whether she struck the locker or not was inconsequential as a compression fracture is caused by falling with the body in a flexed position.  “Whether that flexed position was into the locker, into the wall, or onto the floor is a moot point.”
Procedural History: ALJ Weatherby dismissed the claim, stating he agreed with the hospital ER physician, Dr. Olash, and Dr. Wolens in finding the injury was not work-related.
The Plaintiff filed a Petition for Reconsideration asking the ALJ to make additional findings regarding whether her work was a contributing factor to the fall and regarding whether the positional risk doctrine is applicable.  The ALJ issued an Order simply reiterating his original Opinion.   
The Plaintiff appealed to the Workers’ Compensation Board.
Issue: Did the Administrative Law Judge fail to make appropriate findings of fact concerning whether the Plaintiff’s work activities contributed to her syncopal episode and concerning whether the positional risk doctrine applies?
Holding: The Board found ALJ Weatherby’s conclusion that the Plaintiff’s fall was unrelated to her work was clearly supported by the medical evidence.  However, the Board noted the physicians’ opinions are conflicting regarding positional risk and the Plaintiff properly preserved the issue by asking for additional findings of fact in its Petition for Reconsideration.  The Board remanded to the ALJ for an analysis under the positional risk doctrine.    
Rule: When a claimant has a non-work-related health condition that causes him or her to fall, “the effects of such a fall are compensable if the employment placed the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle.”  Indian Leasing Co. v. Turbyfill, 577 S.W.2d 24 (Ky. App. 1978).  Liability under the positional risk doctrine regarding idiopathic falls (where cause of fall is a medical condition personal to claimant) is limited to those cases in which the employment placed the employee in a position increasing the dangerous effects of the idiopathic fall.  In level fall cases involving no increased danger attributable to the employment, liability may be imposed on employer only if the work was a substantial factor in causing the injury.  Id.
Reasoning: The Board found that while ALJ Weatherby did make adequate findings based on substantial evidence regarding the Klonopin cessation as being the cause of the fall, the ALJ did not address whether Plaintiff’s employment placed her in a position increasing the dangerous effects of the idiopathic fall.  
Disposition: Vacated and remanded to ALJ for further findings and an analysis of the applicability of the positional risk doctrine to determine whether that doctrine applied to the totality of the evidence requires the fall be found a compensable, work-related injury.  The Board emphasizes that it does not direct any particular result, only the proper analysis and findings.
Board Members: Rechter, Stivers and Chairman Alvey all concurred.
ALJ: Weatherby

Case Name, Citation, Author:  First Class Services, Inc. v. Helm (Judge Lambert) Not To Be Published Opinion from the Kentucky Court of Appeals.
Facts: Helm worked for First Class Services, Inc. (FCS) as an over-the-road truck driver hauling plastic pellets in a bulk tanker.  He was paid a percentage of the load or “commission” by FCS, and also received per diem payments for meals, lodging and general expenses from FCS.
Plaintiff suffered a work-related low back injury on 7-22-13 loading a trailer.  He slipped, caught himself and twisted his body in the process.  He felt a pop in his lower back and stated he immediately felt “a fire down my right leg.”  The Plaintiff saw Dr. Thad Jackson who diagnosed low back pain and herniation at L4-5 after an MRI.  FCS sent him to Dr. Thomas O’Brien for an IME and discontinued TTD and medical benefits after receiving Dr. O’Brien’s report (Dr. O’Brien’s opinions not specified in Court’s Opinion).  Helm eventually left his employment with FCS because Dr. Jackson’s restrictions prevented him from returning to work for FCS.
The Plaintiff presented the IME report of Dr. Barefoot who found an extrusion at L4-5 producing radiculopathy and related this to the work event of 7-22-13.  He assigned 13% whole-person impairment and opined that epidural injections recommended by Dr. Jackson were reasonable and necessary.  He assigned restrictions that prevented Plaintiff from returning to the same type of work.  
ALJ Case gave Plaintiff a PPD award based on 13% whole-person impairment but found he retained the physical capacity to perform the same type of work.  He calculated the PPD benefits utilizing an average weekly wage (AWW) that included per diem money for meals but excluded per diem money for lodging.
Procedural History: FCS petitioned for reconsideration regarding inclusion of the per diem money for meals in the calculation of the AWW.  Plaintiff did not petition regarding the exclusion of the per diem money for lodging from the AWW calculation.  The ALJ denied the Defendant’s Petition and the Defendant appealed to the Board.  The Board affirmed ALJ Case’s finding of inclusion of the meals per diem money in calculation of the AWW, reversed ALJ Case regarding exclusion of the lodging per diem money in the AWW calculation, and remanded to the ALJ with directions to include both the meals per diem and lodging per diem during Helm’s best quarter to calculate his pre-injury AWW, and then to amend the award for indemnity benefits accordingly.  FCS appealed to the Court of Appeals.
Issues: Should the payments for meals and lodging be included in the calculation of the Plaintiff’s pre-injury AWW?
Holding: Yes.  The payments for meals and lodging were per diem payments constituting economic gain to Plaintiff and were not reimbursements for actual expenses.  These payments were properly included in AWW.  
Rule: KRS 342.0011(17) defines wages to include the reasonable value of board (meals provided as pay) and lodging received from the employer.  KRS 342.140(6) confirms that the reasonable value of board and lodging received by the employee from the employer is to be included in the calculation of the average weekly wage.
Reasoning: The employer attempted to argue that because Plaintiff did not include the per diem money for meals and lodging in his income tax reporting, he should not be allowed to include it in his AWW calculation.  The employer pointed to the language in both KRS 342.0011(17) and KRS 342.140(6) that states wages means “in addition to money payments for services rendered, the reasonable value of board, rent, housing, lodging, and fuel or similar advantage received from the employer, and gratuities received in the course of employment from others than the employer to the extent the gratuities are reported for income tax purposes.”  The Court found that the income tax reporting requirement in the statutory language appears to modify only “gratuities received from third parties.”  
Disposition: The Court of Appeals affirmed the Board’s decision, holding that both the per diem for meals and the per diem for lodging should be included in the calculation of Plaintiff’s pre-injury AWW.
Appeals Panel: Maze, Jones & Lambert (All concurred)
ALJ: Case

Case Name, Citation, Author:  Uninsured Employer’s Fund v. Brock, et al. (Judge Maze) Not To Be Published Opinion from the Kentucky Court of Appeals.
Facts: More Power Diesel (MPD) hired Brent Owen of O&O Builders to build a metal building on MPD’s land.  Owen then hired a second construction company to assist with the project and also employed claimant Michael Brock.  Brock was seriously injured on 9-14-07 when a MPD-owned front-loader Bobcat malfunctioned, dumped a load of gavel upon Brock and then fell on him.  Brock suffered bruising to his heart and lungs, a lacerated kidney, and several injured or fractured vertebrae.  
MPD, a corporation engaged in the business of engine repair, was owned by Winford Brewer, William Haney, and Michael Cornwell.  The same three men and their wives also formed the ownership group of HBC Leasing, an employee-less company engaged in the leasing of property.  At the time of the event injuring Mr. Brock, only MPD held workers’ compensation insurance between MPD, O&O and HBC Leasing.  
Procedural History: Brock filed a claim in which he was awarded $121.35 weekly in PPD benefits for 520 weeks based on 58% occupational disability.  The ALJ identified Owen (O&O) as the responsible employer.  However, since Owen did not have workers’ comp coverage, the burden of compensating Brock fell upon the Uninsured Employers’ Fund (UEF) pursuant to 342.760.
Anticipating this result, the UEF had moved to join MPD due to its close ties to HBC Leasing, and due to its agreement with Owen regarding construction of the metal building, arguing that the “up-the-ladder” provisions of KRS 342.610 and 342.700 made MPD responsible.  ALJ Polites did not agree as he concluded neither MPD nor HBC Leasing were contractors engaged in the business of construction as required for “up-the-ladder” liability.  UEF appealed to the Board and the Board affirmed the ALJ’s decision but remanded to the ALJ with directions to dismiss MPD and HBC Leasing as parties.  The UEF then appealed to the Court of Appeals.
Issues: Was MPD an “up-the-ladder” contractor and therefore the responsible party for paying claimant’s award under Kentucky workers’ compensation law?
Holding: No. MPD was not an “up-the-ladder” contractor and was therefore not responsible for paying claimant’s award.  
Rule: KRS 342.610(2)(b) defines an “up-the-ladder” contractor liable for compensation for injury to an employee of a subcontractor as a person or entity contracting with another person or entity “to have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession” of the purported contractor.  
Reasoning: The work MPD hired Owen (O&O) to do, constructing the metal building, was not a regular or recurrent part of either MPD’s or HBC Leasing’s business.  Neither company was involved in construction.  The “up-the-ladder” provisions of the Act are there to discourage contractors from subcontracting work that is a regular part of the contractor’s business to an irresponsible subcontractor for the purpose of avoiding the expense of workers’ compensation insurance.  
Disposition: The Court of Appeals affirmed the Board’s decision and remanded to the ALJ for dismissal of HBC Leasing and MPD as parties.
Appeals Panel: Maze, Jones & Lambert (All concurred)
ALJ: Polites

Case Name, Citation, Author:  Ray Ballou v. Enterprise Mining Co. (Judge Taylor) Not To Be Published Opinion from the Kentucky Court of Appeals.
Facts: Plaintiff alleged he contracted pneumoconiosis from working in coal mines for 30 years from 1982 to 5-9-12, his date of last exposure when he was working for Defendant.  He was 69 years old on that date.
X-ray evidence placed Plaintiff in Category 1/1.  His pulmonary function studies were above 80%.  
Procedural History: Administrative Law Judge R. Roland Case concluded Plaintiff was only entitled to receive retraining incentive benefits (RIB) under KRS 342.732(1)(a) and would be ineligible to receive the monetary benefit based upon a 25% disability rating in lieu of actual RIB benefits afforded by KRS 342.732(1)(a)(7) because Plaintiff was over 65 years of age on the date of last exposure.  
The Plaintiff appealed to the Board challenging the constitutionality of KRS 342.732(1)(a)(7).  The Board, lacking jurisdictional authority to rule upon the constitutionality of a statute, summarily affirmed the ALJ.  The Plaintiff then appealed to the Court of Appeals challenging the constitutionality of the statue.
Issues: Does KRS 342.732(1)(a)(7) violate the due process clause and equal protection clause of the Kentucky Constitution and the United States Constitution as it does not allow claimants age 65 and older to choose a payout based on a 25% disability rating in lieu of RIB benefits?
Holding: No, the age restriction in KRS 342.732(1)(a)(7) does not violate the due process clause and/or equal protection clause of the Kentucky Constitution or the United States Constitution because it is rationally related to a legitimate state interest or objective – reducing the overall cost of maintaining the workers’ compensation system with the recognition that workers become eligible for other forms of income replacement after age 65.  
Rule: KRS 342.732(1)(a)(7) states:
An employee who is age fifty-seven (57) years or older on the date of last exposure and who is awarded retraining incentive benefits may elect to receive in lieu of retraining incentive benefits, an amount equal to sixty-six and two-thirds percent (66-2/3%) of the employee’s average weekly wage, not to exceed seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740 multiplied by the disability rating of twenty-five percent (25%) for a period not to exceed four hundred twenty-five (425) weeks, or until the employee reaches sixty-five (65) years of age, whichever occurs first, KRS 342.730(4) notwithstanding.
A classification based upon age only violates equal protection and due process if such classification is not rationally related to a legitimate state interest or objective.  Edwards v. Louisville Ladder, 957 S.W.2d 290 (Ky. 1997); Reynolds Enter. Inc. v. Ky. Bd. Of Embalmers and Funeral Dir., 382 S.W.3d 47 (Ky. 2012).  Legislative enactments carry a presumption of constitutionality. Keith v. Hopples Plastics, 178 S.W.3d 463 (Ky. 2005).
Reasoning: The purpose of RIB benefits was to diminish the likelihood that miners would become totally disabled by coal workers’ pneumoconiosis (CWP) at a later date.  Specifically, RIB benefits are an attempt to encourage miners who have contracted CWP to leave the mining industry.  The age restriction in KRS 342.732(1)(a)(7), allowing miners between ages 57 and 64 to elect to receive a monetary benefit in lieu of RIB, evinces the recognition by the legislature that miners 57 and older are not likely to be interested in retraining in another industry, being so close to retirement.  Therefore, the monetary alternative to RIB is meant to provide some compensation to those older miners who are too old to have interest in retraining but are not yet retirement age.  It was not unreasonable for the legislature to conclude that workers age 65 and older often see their level of compensation decrease due to retirement, reduction in work, or other reasons.  Consequently, the reduction in benefits based upon age, as prescribed in KRS 342.732(1)(a)(7), survives rational basis scrutiny. 
Disposition: The Court of Appeals affirmed the ALJ’s decision limiting the Plaintiff to RIB benefits.
Appeals Panel: Acree, Nickell and Taylor (All concurred)
ALJ: Case

Case Name, Citation, Author:  Diop v. Zenith Logistics (Judge Lambert) To Be Published Opinion from the Kentucky Court of Appeals.
Facts: Plaintiff alleged she injured her mid and lower back on 12-21-13 and 2-20-14 while pulling on a stuck door and twisting respectively in the course of her position as a warehouse worker for Defendant.  Zenith denied the claim, contending the Plaintiff’s back complaints were due to a fall in the bathtub, as shown in the 12-27-13 medical records of Jewish Hospital.  Those records contained a negative x-ray of the spine and a diagnosis of back contusion.  The Plaintiff explained that even though those records stated she had a sudden onset of back pain seven days prior due to a fall in the bathtub, the fall in the tub had actually happened that same day, 12-27-13, and occurred because her work-related back pain prevented her from urinating on the toilet so she had gotten into the tub to urinate more easily and then fell.
On the original injury date, 12-21-13, her supervisor responded to her location after she called him and they filled out an incident report.  Someone from the company apparently drove her to Dr. Bee, a chiropractor, for treatment approximately three days later.  Dr. Bee was the Plaintiff’s choice.  The alleged 12-27-13 bathtub incident and trip to Jewish Hospital came three or four days after she saw Dr. Bee. On the second alleged injury date, 2-20-14, Plaintiff testified she was filling orders by “picking” grocery boxes and started experiencing worsening back pain and told a supervisor whose name she did not know.  She treated with a chiropractor for about 20 visits after this second event.  The treatment records of Dr. Bee show she gave him the history of the stuck door occurring three days before she first saw him on December 24, 2013.  Dr. Bee last saw her on February 20, 2014, released her to full duty in that note and did not record any new complaints.   The Plaintiff saw Dr. Urda in February, March and April of 2014.  Dr. Urda diagnosed thoracic and lumbar strains.
The Defendant submitted the 8-21-14 IME report of Dr. Ellen Ballard and a 9-16-14 supplemental report.  Dr. Ballard did not find evidence of any permanent work injury on either 12-21-13 or 2-20-14, finding only a temporary strain on 12-21-13 while noting the history of the bathtub fall.  Dr. Ballard found the Plaintiff may have a 5% whole-person impairment rating but related that to the bathtub fall and stated this was pre-existing and not work related.  Dr. Ballard found no need for restrictions and no need for additional medical treatment.  The Plaintiff attempted to file a report of Dr. Barefoot well out of proof time, after the formal hearing, but the ALJ did not allow that filing.
The Plaintiff missed less than two weeks of work after the first alleged injury before returning to work full duty.  The Plaintiff had returned to work full duty after a brief period working light duty following the second alleged injury.  The Defendant denied the second injury based on not having proper notice of it and on the reference to the bathtub fall in the Jewish Hospital records.
Procedural History: Administrative Law Judge Udell Levy relied on Dr. Urda’s opinions finding thoracic and lumbar strains and Dr. Ballard’s 5% rating in making a PPD award based on 5% whole-person impairment, with a corresponding award of medical benefits.  ALJ Levy believed Plaintiff’s testimony regarding her fall in the bathtub and regarding her relation of her complaints to the work activities.  The ALJ furthermore applied the “direct and natural consequence” rule in finding that the Plaintiff’s work-related back condition was what caused her to fall in the bathtub.  Judge Levy found the alleged 2-20-14 event to merely be a continuation of the 12-21-13 injury.
The Defendant filed a Petition for Reconsideration arguing there was no medical evidence supporting a finding of causation of a work-related injury or relating the fall in the bathtub to a work-related injury.  ALJ Levy denied the Petition.
On appeal to the Workers’ Compensation Board, the Defendant made the same arguments.  The Board agreed finding the ALJ’s findings were not supported by substantial evidence.  Specifically, the Board found that causation could only be established with medical evidence and that there was no evidence connecting the fall in the bathtub to the work event days earlier.  The Board reversed the PPD award and the award of permanent medical benefits but remanded for the ALJ to determine if there had been a temporary work injury and whether medical benefits were due related to a temporary injury.  
The Plaintiff appealed to the Court of Appeals.
Issues: Was the ALJ within his discretion to make a finding of a work injury resulting in permanent impairment, and thus, to make a PPD award and an award of medical benefits?
Holding: Yes, Judge Levy acted within his discretion in finding the Plaintiff suffered a work injury resulting in permanent impairment and the ongoing need for medical benefits.  
Rule: In establishing causation, or work-relatedness, when a causal connection between alleged injury event and the Plaintiff’s condition/diagnosis is not apparent to laymen, the question is one properly within the province of medical experts and the Board may not disregard the medical evidence.  Elizabethtown Sportswear v. Stice, 720 S.W.2d 732, 733 (Ky. App. 1986), citing Mengel v. Hawaiian-Tropic, 618 S.W.2d 184 (Ky. App. 1981).  An ALJ may rely on the Plaintiff’s testimony however to tie the medical records from one provider documenting a work event to the records of another provider documenting an event that was the direct and natural consequence of the original work injury (in this case, the bathtub fall).
Reasoning: Judge Levy was within his discretion to assess Plaintiff’s credibility and believe her version of events that caused her injury in conjunction with his review of the medical records.  The Board “improperly construed the controlling case law.”
Disposition: The Court of Appeals reversed the Board and reinstated the ALJ’s award.
Appeals Panel: Combs, Lambert and Vanmeter (All concurred)
ALJ: Levy

Case Name, Citation, Author:  River View Coal Co., LLC v. Whitlock (Judge Dixon) Not To Be Published Opinion from the Kentucky Court of Appeals.
Facts: Plaintiff worked for Defendant as an underground miner and sustained a lower back injury on 3-4-13 when a rock fell and hit her.  An MRI showed mild disc bulges with an annular tear and nominal protrusion at L4-5.  Plaintiff was 41 years old on the date of injury.  She had only a 9th-grade education but had earned her GED and obtained a certificate in early childhood development.  She last worked for the Defendant on 7-11-13.  
The Plaintiff introduced the report of Dr. Charles Barlow, an orthopedic surgeon, who diagnosed a bulging disc, transitional vertebra at L5-S1 and bilateral radiculopathy, which he attributed to the 3-4-13 work event.  Dr. Barlow assigned 6% whole-person impairment and assigned permanent restrictions regarding bending, lifting and pushing that prevented Plaintiff from returning to mining work.
The Defendant submitted the report of Dr. Thomas Huhn, an emergency medicine specialist, who performed an IME.  Dr. Huhn opined the Plaintiff suffered no permanent impairment and could return to mining work.
Procedural History: Administrative Law Judge William Rudloff rendered an award for permanent total disability.  The Defendant filed a Petition for Reconsideration asking for additional findings of fact.  On reconsideration the ALJ clearly addressed the evidence upon which he relied to render the award (Dr. Barlow’s opinions on impairment and restrictions and the Plaintiff’s testimony) while analyzing the evidence in light of the factors established in Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000).
On appeal to the Workers’ Compensation Board, the Defendant argued the evidence did not support an award for permanent total disability.  The Board disagreed and affirmed the total disability award.  However, the Board concluded the ALJ failed to properly address a psychological injury alleged by the Plaintiff and erroneously calculated temporary total disability (TTD) benefits.  The Board vacated the opinion as to those issues and remanded the case to the ALJ.    
The Defendant appealed to the Court of Appeals arguing that the ALJ failed to consider the evidence that Plaintiff worked at her sister’s restaurant following her cessation of employment with Defendant and just before the hearing, that Plaintiff had specialized training as a preschool instructional aide, Dr. Huhn’s opinion that Plaintiff could return to work, and that Plaintiff’s anxiety, rather than a work injury, was the basis for her refusal to return to work as a miner.
Issues: Was the ALJ within his discretion to make a finding of permanent total disability considering the totality of the evidence?
Holding: Yes, Judge Rudloff acted within his discretion in finding the Plaintiff permanently totally disabled, clearly analyzing the evidence in light of the factors outlined in Hamilton.  
Rule: The ALJ has the authority to determine the quality, character, and substance of the evidence.  Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985).  Furthermore, the ALJ is free to believe part of the evidence and disbelieve other parts of the evidence.  Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).  It is well settled that a worker’s testimony is competent evidence of her physical condition and of her ability to perform various activities both before and after being injured.  McNutt Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001).
The factors listed in Hamilton concerning an ALJ’s determination of whether a claimant is partially or totally disabled include:
-    The claimant’s post-injury physical, emotional, intellectual and vocational status and how those factors interact.
-    A consideration of the likelihood that the particular claimant will be able to find work consistently under normal employment conditions.  This ability to do so is affected by factors such as whether the claimant will be able to work dependably and whether the worker’s physical restrictions will interfere with vocational capabilities.
Reasoning: Judge Rudloff properly weighed the conflicting evidence, made factual findings, and reached the legal conclusion that Plaintiff was permanently totally disabled.
Disposition: The Court of Appeals affirmed the Board’s decision affirming the ALJ’s award of permanent total disability benefits.
Appeals Panel: Acree, Dixon and Kramer (All concurred)
ALJ: Rudloff

Case Name, Citation, Author:  Boling v. Owensboro Municipal Utilities (Board Member Rechter) 
Facts: The Plaintiff has worked for Defendant, performing physically demanding work, for over 18 years.  He sustained a prior low back injury in 2007 which resulted in surgery at L4-5.  He returned to work without restrictions in 2008 and settled that claim based on 13% disability rating with medicals left open.  
Plaintiff alleged a second low back injury on 12-26-13 while attempting to position an actuator.  He experienced pain in his low back into his right leg.  He was not under any restrictions at that time.  He eventually improved until April of 2014 when he was working 12-hour shifts, seven days per week during a turbine outage.  He was doing a lot of heavy lifting, bending, stooping and working in awkward positions.  He began to notice more back pain and symptoms into his right buttocks which then ran down into his leg, his calf and then eventually his foot started going numb.  He treated with Dr. A. Gayle Rhodes and Dr. Troffkin, who performed surgery (microdiscectomy at L4-5) in July of 2014.  The Plaintiff returned to full duty on 9-8-14 and testified he has good days and bad days.
The Defendant filed a Medical Fee Dispute and Motion to Reopen the 2007 claim on 7-16-14.  It attached to this filing the report of Dr. Thomas Loeb who opined the complaints of 12-26-13 and in 2014 were related to a longstanding condition which began in 2007 and did not constitute new injuries.  
Dr. Troffkin opined that the 2014 surgery was related to the 12-26-13 work injury and assigned a 10 to 13% rating based on the 2014 discectomy.  He distinguished the most-recent problems at L4-5 from the 2007 problems as in 2007 the problems were on the left side compared to 2013 and 2014 when they were located on the right.  Dr. Troffkin did acknowledge the impairment rating is probably the same as it was prior to the most-recent injury.  
The Defendant presented the records of Dr. Rhodes.  These records confirmed the Plaintiff had low back pain with associated symptoms on the right side approximately three years before 12-26-13.  
Procedural History: ALJ Weatherby found the Defendant failed to prove an active disability but found that the Plaintiff only suffered a temporary exacerbation of the 2007 injury in the 12-26-13 work event.  Judge Weatherby stated he was most persuaded by the opinions of Dr. Loeb and the records of Dr. Rhodes.  The Plaintiff filed a Petition for Reconsideration which the ALJ overruled as a reargument of the merits.  The Plaintiff appealed to the Workers’ Compensation Board.
Issue: Did the evidence compel a finding that Plaintiff suffered a work-related injury to his back on 12-26-13?
Holding: No.  The evidence on the causation issue was conflicting.  The ALJ was within his discretion to find Dr. Loeb’s opinions most credible.   
Rule: Although a party may note evidence supporting a different outcome than reached by an ALJ, such is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  When a claimant in a Kentucky workers’ compensation claim fails to meet his burden of proof to convince an Administrative Law Judge his alleged injury is work-related, the question on appeal is whether the evidence compelled a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
Reasoning: Judge Weatherby clearly outlined the substantial evidence he relied upon in finding the 2013 event to be only a temporary exacerbation of the pre-existing condition.  The evidence did not compel a different result.
Disposition: ALJ’s findings affirmed.
Board Members: Rechter, Stivers and Chairman Alvey all concurred.
ALJ: Weatherby

Case Name, Citation, Author:  Caudill v. City of Morehead (Chairman Alvey)
Facts: Plaintiff alleged he injured his back and neck (with tingling in left leg) on 5-21-13 while lifting a 75-100 lb. welder in the course of his job as a mechanic for the Defendant.  He later amended the claim to include a psychiatric component.
The Plaintiff filed the 6-26-14 report of Dr. Owen.  Dr. Owen diagnosed persistent neck and mid-back pain related to disc bulges in the thoracic spine and degenerative disc disease in the cervical spine.  He assigned 7% for the thoracic spine and 0% for the cervical spine.  
The Plaintiff also introduced the 7-9-14 report of Dr. Guberman who diagnosed chronic post-traumatic strain of the thoracic, lumbar and cervical spine, finding the thoracic and lumbar issues related to the 5-21-13 lifting incident and the cervical to activities of physical therapy after that work event.  He gave 7% for thoracic, 6% for lumbar and 0% for cervical for total of 13% whole-person impairment.  He found Plaintiff unable to return to the same work.
Dr. Leigh Ann Ford, a psychologist, examined the Plaintiff and completed a Form 107-P containing her findings of generalized anxiety disorder and depressive disorder related to his work injury and assigned 5% whole-person impairment.  
The Defendant filed the 2-27-14 report of Dr. Henry Tutt.  Dr. Tutt diagnosed a thoracic strain and noted a cervical MRI had shown only normal degenerative changes.  He felt non-work-related depression was playing a role in perpetuating Plaintiff’s physical complaints.  He assigned no restrictions.
The Defendant also introduced the 7-10-14 report of Dr. Greg Snider who found thoracic strain superimposed on age-appropriate degenerative changes.  Dr. Snider assigned a 0% rating and stated there should be no restrictions.
The Defendant submitted the psychiatric report of Dr. Douglas Ruth who found 5% impairment related to the Plaintiff’s depressive disorder, opining that the depressive disorder is due to his spinal complaints and thus the psychiatric impairment is related to the alleged work event if the spinal complaints are found to be related to the alleged work event. 
Procedural History: Administrative Law Judge Steven Bolton, relying on the opinions of Dr. Tutt and Dr. Snider, found Plaintiff suffered only a temporary thoracic strain on 5-21-13 resulting in no permanent disability.  Furthermore, Judge Bolton awarded no TTD benefits and found the psychiatric component unrelated to the temporary thoracic strain, relying on Dr. Tutt instead of the psychiatric specialists, Dr. Ford and Dr. Ruth.  Judge Bolton cited Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004) in finding the Plaintiff did not give Dr. Ford and Dr. Ruth the full medical history as he did not give them the details of his divorce as he did to Dr. Tutt, making Dr. Ruth’s and Dr. Ford’s opinions on causation of the psychiatric component less reliable than Dr. Tutt’s opinions.    
The Plaintiff filed a Petition for Reconsideration arguing the ALJ failed to consider the objective evidence supporting the opinions of Dr. Guberman and Dr. Owen and should not have discredited their opinions without explanation.  He also argued the ALJ erred in relying on Dr. Tutt’s opinions over Dr. Ruth and Dr. Ford since Dr. Tutt is not a psychiatric specialist.  He also argued Judge Bolton did not provide an adequate basis for concluding Dr. Ruth and Dr. Ford did not have Plaintiff’s complete history.
On reconsideration Judge Bolton did award temporary medical benefits for the thoracic spine which he had failed to do originally.  Otherwise, he denied the Petition.
The Plaintiff made the same arguments on appeal to the Board. The Board affirmed the ALJ.
Issues: Was the ALJ within his discretion to give more weight to the opinions of Dr. Tutt, a neurosurgeon, than to the opinions of psychologist Dr. Ford and psychiatrist Dr. Ruth concerning the issue of causation of the psych condition?
Holding: Yes, Judge Bolton acted within his discretion in choosing to rely on Dr. Tutt’s opinions concerning the cause of the psychiatric condition.
Rule: The AMA Guides provide that impairment evaluations are to be performed by a licensed physician, but do not require they be assessed by certain specialties of practice.  There is no provision in the AMA Guides mandating causation only be assessed by certain specialties of practice.  Where the evidence is conflicting, the ALJ has the sole authority to determine whom and what to believe.  Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).
Reasoning: Judge Bolton “properly exercised his discretion in finding Dr. Tutt’s opinion most persuasive as to the cause of the psychiatric condition, and clearly articulated his reasoning for doing so in the opinion and order on reconsideration.” 
Disposition: ALJ affirmed.
Board Members: Alvey, Rechter and Stivers (dissented).
ALJ: Bolton

Case Name, Citation, Author:  Consol of Kentucky, Inc. v. Mullins, Et al. (Board Member Stivers) 
Facts: Plaintiff filed a Form 101 alleging a manifestation date of 9-29-13 for cumulative trauma injuries to his back, neck and knees while employed by the Defendant from 4-26-93 through 9-29-13.  He had worked a total of 37 years in the mining industry.  He also alleged a hearing loss with the same manifestation date.  The ALJ consolidated the claims.
The Defendant filed a Motion to Correct Last Date of Exposure in Kentucky stating therein that Plaintiff had worked for Consol in Kentucky from 4-26-93 through 10-1-13 but had only worked in Kentucky through 8-7-06.  After that date, Plaintiff worked solely at the company’s operation in Naugatuck, West Virginia.  These dates and locations pertaining to Plaintiff’s work activities were not contested.  Through the date of his last exposure in Kentucky, Consol of Kentucky was self-insured through its parent company’s, Consol Energy’s, approved self-insurance program for workers’ compensation benefits in Kentucky.
The ALJ bifurcated the claim to resolve the threshold issues of coverage/jurisdiction, statute of limitations, notice, causation, work-relatedness, and entitlement to medical treatment and income benefits.
The Plaintiff testified that in May of 2013 he fell from a ladder while working on a tree stand for deer hunting and had to be evacuated from the site by helicopter.  He was taken to UK Hospital where he was diagnosed with broken ribs. He was off work for approximately two months and then went back to work at Consol on full duty for two or three months before he retired on 10-1-13.  He testified he had been experiencing neck, back and bilateral knee pain for the last 10 years or so of his employment with Consol.
The Plaintiff filed the medical report of chiropractor Dr. Dale Williams who found moderate disc degeneration at C3-7, severe disc degeneration at L2-5 with severe radiculopathy into the left lower extremity related to his career in the mining industry.  The Plaintiff also introduced the report of Dr. Jeffrey Uzzle dated 3-16-14 which noted the Plaintiff had recently undergone a discectomy at L4-5 (performed by Dr. James Bean), was still in rehab for that surgery and had new onset of right-S1-related radiculopathy.  He also found a chronic cervical strain and chronic left shoulder impingement.  Dr. Uzzle opined the Plaintiff’s conditions were due to the cumulative trauma of his work life but were largely dormant and non-symptomatic “until his last employment.”  He did not feel the Plaintiff had reached maximum medical improvement (MMI). 
The Defendant submitted the 6-19-14 report of Dr. David Muffly who found the Plaintiff to be post L4-5 discectomy (due to herniation made worse by the fall from the ladder in May of 2013), to have only mild degenerative changes in the cervical spine and to have no knee symptoms.  He opined the discectomy was due to the fall from the ladder and found no cumulative trauma injuries related to his work for Consol concerning his low back, neck or bilateral knees.  He found him at MMI and assigned 10% for the lumbar spine which he related “to the L4-5 disc herniation with exacerbation of chronic low back pain by the fall from May, 2013.”  He assigned 0% to the cervical spine.
Dr. Bean, the surgeon, completed a questionnaire dated 12-10-14 in which he confirmed there was no basis for relating Plaintiff’s lumbar spine condition to his work for Consol and that he believed Plaintiff had reached MMI when he released him from care on 5-12-14.
Concerning the hearing loss claim, Dr. Raleigh Jones and Dr. Lindsay Walker issued the Form 108 University Evaluation report finding the Plaintiff suffered from hearing loss due to repetitive exposure to hazardous noise in the workplace over an extended period of employment.  However, though hearing aids were recommended, it was Dr. Jones’ opinion that pursuant to the 5th Edition of the AMA Guides, the Plaintiff warranted 0% impairment. 
Procedural History: ALJ Rudloff rendered an award for ongoing temporary total disability benefits finding the Plaintiff to not be at MMI, and awarded medical benefits for the low back, neck and hearing loss.  He found most credible Dr. Uzzle’s opinion that the Plaintiff had dormant and non-disabling lumbar and cervical conditions aroused into disabling reality by the cumulative trauma of his work for the Defendant.  
Noting the Supreme Court’s recent decision in Consol of Kentucky, Inc. v. Goodgame, WL 2154091, Judge Rudloff found the statute of limitations did not begin to run until Plaintiff was informed he suffered from work-related cumulative trauma, regardless of the fact that Plaintiff had not worked in Kentucky for Consol since 2006.  While the ALJ couched his analysis in terms of the statute of limitations, he was actually addressing both the statute of repose and the statute of limitations.  Judge Rudloff found the first notice Plaintiff had that he was suffering from a work-related cumulative trauma was when his treating chiropractor, Dr. Williams, notified him of such a diagnosis on 12-17-13.  As Plaintiff filed his Form 101 on 2-3-14, Judge Rudloff found he had filed the claim well within the statute of limitations as prescribed by KRS 342.185(1).
Regarding the Defendant’s request for a carve-out of pre-existing and active impairment, the ALJ stated he found Dr. Uzzle’s opinions most credible, apportioning all of the impairment to the cumulative trauma of Plaintiff’s work arousing the dormant conditions into disabling reality.  He also stated the Defendant had not proven the existence of pre-existing active impairment or disability.  He preserved the issue of permanent impairment/disability for future determination.  Consol filed a Petition for Reconsideration which the ALJ overruled.  
In his final Opinion and Order, Judge Rudloff found that the Plaintiff reached MMI on 5-12-14 and was permanently totally disabled based on the opinions of Dr. Uzzle, the Plaintiff’s age of 58, his ongoing complaints and his work history of laboring almost exclusively in the mining industry.  Consol filed a Petition for Reconsideration which was overruled.
The Defendant appealed to the Workers’ Compensation Board arguing a number of points including:
-    The ALJ erred by failing to make a specific finding regarding the manifestation date for the alleged injuries and hearing loss;
-    The claim is time-barred;
-    The ALJ erred by finding the Defendant-employer liable for Plaintiff’s disability and failed to make sufficient findings regarding the Plaintiff’s non-work-related back injury, and, alternatively, failed to make sufficient findings regarding apportionment of liability;
-    The ALJ erred by relying upon medical opinions that were offered before the claimant was found to have reached MMI and that were based upon an incomplete medical history.
-    The ALJ erred by awarding future medical benefits for the alleged neck injury;
Issues: 1) Was Plaintiff’s claim time-barred?
2) Did the ALJ make sufficient findings of fact and perform a proper analysis providing for meaningful review concerning the finding of permanent total disability?
3) Did the ALJ make sufficient findings to support an award of medical benefits for each condition?
Holding: 1) No.  Plaintiff’s claim was not time-barred. 
2) No, the ALJ did not make sufficient findings to support the permanent total disability award and did not provide a proper analysis of this issue.   
3) No, the ALJ failed to make sufficient findings to support an award of medical benefits for each condition.
Rule: 1) As the Supreme Court held in the Goodgame case cited by Judge Rudloff, a cumulative trauma claim is timely as long as it is filed within two years of a medical provider informing claimant of presence of work-related cumulative trauma.  There is no longer a 2-year statute of repose as the controlling case law had held before the issuance of Goodgame. 
2) KRS 342.0011(11)(c) states:
“‘Permanent total disability’ means the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury…”
This statutory definition requires an impairment rating before a claimant can be found to be permanently totally disabled.
3) An award of medical benefits must be supported by evidence relating the medical treatment to the alleged injury.
Reasoning: 1) Plaintiff filed his Form 101 within two years of being told by a medical provider he suffered from a work-related cumulative trauma.
2) There is no dispute regarding the fact that the Plaintiff’s last exposure in Kentucky was on 8-7-06.  Therefore, the ALJ must make a specific finding that his determination of permanent total disability is based solely on Plaintiff’s condition at the time he stopped working in Kentucky in 2006.  The ALJ stated he largely relied on the opinions of Dr. Uzzle.  It was Dr. Uzzle who found that the Plaintiff’s symptoms, while developing for years, were “largely not symptomatic until his last employment.”  Dr. Uzzle provided no explanation of what he meant by last employment.  The ALJ’s analysis regarding his determination of permanent total disability centered more on Plaintiff’s current physical state and was bereft of analysis concerning Plaintiff’s condition at the time he ceased working in Kentucky.  As there is no argument regarding the ALJ’s finding that the extraterritorial jurisdiction provisions in KRS 342.670 do not apply, these findings were required.  The Board noted neither Dr. Williams or Dr. Uzzle even offered an impairment rating while noting that the ALJ must point to evidence showing that Plaintiff not only suffered a cumulative trauma injury on or before 8-7-06 in Kentucky, but that he also has an impairment rating attributable to such injury in Kentucky.
3) The ALJ failed to cite to medical evidence relating the extent of Plaintiff’s disability attributable to his work in Kentucky.  If medical evidence cannot be located in the record supporting such an attribution, there can be no award of medical benefits.
Disposition: Affirmed regarding the statute of limitations and statute of repose issues.  Vacated regarding the award of permanent total disability, temporary total disability and medical benefits.  Remanded for additional findings and a decision consistent with the views expressed by the Board.
Board Members: Rechter, Stivers and Chairman Alvey all concurred.
ALJ: Rudloff

Case Name, Citation, Author:  Lake Cumberland Regional Hospital v. Foster (Board Member Rechter) 
Facts: Plaintiff began his employment with Defendant in 1990 and has worked in the catheterization lab since 1998.  He was required to wear a lead apron weighing 20 to 30 lbs. for up to seven-and-a-half hours during an eight-hour shift.  He was also required to move x-ray equipment and to move patients.  He alleged thoracic and cervical injuries as well as a psychiatric component related to events of 2-10-12 and 5-4-13, and due to cumulative trauma manifesting on 3-19-14.  
On 2-10-12 he was x-raying a new apron to assure there were no holes in the lead.  When he lifted the apron from the table, he felt a shift in his back, specifically feeling pain in his upper back.  He treated with Dr. Magdy El-Kalliny who initially took him off work before returning him to light duty in November of 2012 and then full duty in February of 2013.  Plaintiff continued to have some pain.
On 5-4-13 Plaintiff was reaching over a patient when he again felt a shift and pain in his back and his legs “went out.”  He again treated with Dr. El-Kalliny who initially took him off work and then placed him on light duty.  On 3-19-14, Dr. El-Kalliny informed the Plaintiff he had a cumulative trauma injury to his cervical spine from wearing the lead apron at work.
The Plaintiff testified his light duty work had consisted of working in the Imaging Center assisting with outpatient x-rays (which did not require moving patients), working as a phlebotomist for a few weeks at reduced pay, working for a few weeks as a monitor technician which involved watching heart monitors, answering call bells and performing secretarial work.  He testified he earned less than half of what he earned in the catheterization lab when he was working as a monitor technician and phlebotomist.  He testified he stopped working on 9-2-14 due to financial difficulties so that he could cash-out his retirement in order to keep his house and cars.
The Plaintiff testified he suffers from anxiety and depression related to his alleged work injuries.  He has earned a degree in “Human Services” but stated he does not feel he could perform a desk job.
A 3-20-12 MRI revealed a T6-7 disc herniation on the right.  The Plaintiff subsequently underwent epidural injections.  A 5-24-13 cervical MRI revealed a new herniation at T7-8.  A cervical MRI at some time in 2014 revealed disc prolapse at C3-4 and C4-5.  Dr. El-Kalliny assigned permanent restrictions of no lifting over 20 lbs., alternating sitting and standing, and no wearing lead aprons.  He assessed 8% impairment related to the thoracic spine due to the alleged injury events of 2-10-12 and 5-4-13, and 5% for the cervical spine cumulative trauma injury.  
Dr. Bilkey performed an IME for the Plaintiff and assessed 8% for the thoracic spine for the 2012 and 2013 events, and 5% for the cervical spine cumulative trauma injury, just as Dr. El-Kalliny had done.  Likewise, he agreed that Dr. El-Kalliny’s restrictions were reasonable.
The Defendant submitted the reports of Dr. Russell Travis and Dr. Timothy Kriss, who both performed IMEs.  Dr. Travis felt the thoracic disc extrusion at T6-7 had completely resolved with no residual but assigned a 5% rating related to the 5-4-13 event and the herniation at T7-8.  Dr. Kriss diagnosed chronic mid-thoracic axial back pain, osteoarthritis of the neck, hyperflexia, and carpal tunnel.  He opined the thoracic disc herniations had completely resolved.  He felt the ongoing complaints were related to a musculoskeletal condition rather than the resolved herniations.  He assigned 5% to the thoracic spine for the alleged 2012 and 2013 injuries and 0% for the cervical spine.  He assigned no restrictions and found Plaintiff could return to work in the catheterization lab.
The Plaintiff submitted the report of Dr. Dennis Sprague, a licensed clinical psychologist, who found the Plaintiff suffered from a depressive disorder, generalized anxiety disorder, and pain disorder caused by the alleged work injuries.  He did not believe the Plaintiff had the psychological ability to continue working, assigned 12% impairment and recommended psychiatric treatment.  
The Defendant submitted the report of Dr. Timothy Allen who opined the Plaintiff had an adjustment disorder with depressed mood but no impairment.  Furthermore, Dr. Allen felt the Plaintiff could return to work from a psychiatric standpoint.
Procedural History: ALJ Rudloff found the Plaintiff permanently totally disabled.  He noted Plaintiff’s age of 53, his long history working for the Defendant (24 years of service), the Plaintiff’s testimony regarding his limitations and the opinions of Dr. El-Kalliny, Dr. Bilkey and Dr. Sprague.
The Defendant filed a Petition for Reconsideration seeking further analysis regarding the determination of permanent total disability and requested specific findings concerning the extent of disability attributable to the alleged injuries, the specific body parts which caused the total disability, and whether the post-injury jobs were menial or whether they represented customary types of employment.  The ALJ denied the Petition but made an additional award of TTD benefits from 2-10-12 through 9-2-14 with the exclusion of a period from 2-26-13 through 5-4-13 (when Plaintiff had returned regular duty) as he found Plaintiff was unable to perform his customary work during those periods of time before MMI was achieved.
The Defendant appealed to the Workers’ Compensation Board.
Issue: 1) Did the ALJ make sufficient findings to support the award of permanent total disability benefits?
2) Did the ALJ make sufficient findings to support the award of TTD benefits?
Holding: 1) No.  The ALJ failed to make sufficient findings to support the award of permanent total disability benefits.   
2) No. The ALJ failed to make sufficient findings to support the award of TTD benefits.
Rule: 1) An ALJ must set forth adequate findings of fact from the evidence to apprise the parties of the basis for his decision.  Shields v. Pittsburgh and Midway Coal Min. Co., 634 S.W.2d 440 (Ky. App. 1982).  
2) Workers who are unable to perform their same job after an injury are not always entitled to TTD benefits.  The ALJ must determine whether the post-injury work is “customary” for the claimant.  Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000).   
Reasoning: 1) Judge Rudloff failed “to specifically characterize the nature of Foster’s injuries and which dates of injury produced a state of permanent total disability.”  Furthermore, the ALJ did not identify what permanent restrictions he felt were warranted, nor did he address how those restrictions would affect Mr. Foster’s ability to perform other jobs for which he has training or experience.  The ALJ’s findings were generally insufficient to apprise the parties of the basis for his finding of permanent total disability.  
2) The ALJ did not make an analysis regarding whether Plaintiff had returned to work that was customary for him during the periods of awarded TTD benefits.
Disposition: ALJ’s findings vacated.  Remanded for additional findings.
Board Members: Rechter, Stivers and Chairman Alvey all concurred.
ALJ: Rudloff
Defense Attorney: Bobby Ferreri (FERRERI PARTNERS)

Case Name, Citation, Author:  Morris Heating & Cooling v. Durbin (Chairman Alvey)
Facts: Plaintiff alleged injuries to his ribs, sternum, right elbow and right arm after falling eight feet onto roof rafters while repairing a smoke alarm for a customer while working as an HVAC repairman/technician for Defendant-employer on 7-19-11.  This work involved lifting, climbing ladders, using torches, and carrying tools, parts and tanks of Freon.
Plaintiff was diagnosed with contusions of the abdominal and chest walls and a fractured radius head and had two surgeries (Dr. Angelo Colosimo) on his right elbow.  Plaintiff testified he continues to have problems with his neck, right shoulder and chest in addition to his elbow issues.
Plaintiff filed the 8-13-12 report from treating orthopedic surgeon Dr. Colosimo who assigned 3% whole-person impairment for the radial head fracture but did not address restrictions.  Plaintiff also introduced the 4-7-15 and 4-29-15 reports of Dr. John Wolf, another orthopedic surgeon, who opined that while Plaintiff did have some right elbow function loss, his primary problems were neurological and that he experienced neurological deficit related to either his brachial plexus or cervical nerve roots.  Dr. Wolf assigned 13% whole-person impairment.  He also recommended Plaintiff see a neurologist.  
The Defendant filed the 10-9-12 report of Dr. Thomas Loeb, an orthopedic surgeon.  Dr. Loeb diagnosed right elbow lateral epicondylitis.  He described the condition as an “acute-on-chronic type of tissue irritation.”  Dr. Loeb assigned 5% whole-person impairment and no restrictions.  Five months later, Dr. Loeb issued a report dated 3-8-13 after reviewing additional records from Dr. Colosimo and stated Plaintiff was not at MMI, could need additional surgery, and that there were questions regarding the cause of his ongoing complaints.  Dr. Loeb issued yet another report on 12-3-13 opining Plaintiff had numbness throughout his right hand with spotty numbness to from the elbow to the wrist.  He also noted undefined problems with the right shoulder and while assigning 5% whole-person impairment, said that the rating was premature.  
Dr. Richard Sheridan performed an IME for the Defendant.  His 4-21-15 report diagnosed resolved contusion to ribs and sternum, right ulnar neuritis at the elbow, permanent aggravation of a pre-existing arthritis in the elbow and fracture of radial head.  He assigned 5% whole-person impairment and assigned restrictions that would prevent Plaintiff from returning to same work.
Dr. Joseph Kutz, a hand surgeon, examined the Plaintiff on 9-18-14 by agreement of both parties.  He diagnosed cervical radiculitis at C5-6 on the right, right elbow pain, peripheral compression with decreased sensation in the right hand, and weakness of the right upper extremity.  Dr. Kutz assigned 7% whole-person impairment but also stated Plaintiff had not reached MMI, would benefit from additional physical therapy, and may need a cervical decompression.
Procedural History: Administrative Law Judge William Rudloff found Plaintiff permanently totally disabled and awarded TTD and medicals also (including for the back and neck, body parts not alleged in the Form 101).  Judge Rudloff stated he relied on Dr. Wolf’s and Dr. Kutz’ opinions regarding diagnosis, restrictions and impairment, Dr. Sheridan’s opinions on restrictions and also the fact that the Plaintiff had worked mostly in this field and had been unable to return to work for the four years since the accident.  
The Defendant filed a Petition for Reconsideration arguing the ALJ could not award medical benefits and permanent total disability benefits based on body parts (neck and back) that had not been alleged in the claim.  Plaintiff’s attorney then filed a Motion to Amend Claim to include the back and neck which Judge Rudloff allowed.  Judge Rudloff denied Defendant’s Petition and stated he was awarding benefits for the body parts identified by Dr. Wolf and Dr. Kutz as having been affected by the work event.  He stated the Defendant had allowed the neck and back to be made part of the claim by implied consent when evidence was introduced on these body parts during litigation as Defendant failed to object to that evidence.  
The Defendant argued on appeal to the Board that ALJ Rudloff abused his discretion in allowing Plaintiff to amend the Form 101 after rendering his Opinion and Award.  The Defendant-employer also argued ALJ Rudloff failed to make appropriate findings of fact.
The Board vacated and remanded for consideration of whether the parties tried the issue of an injury to additional body parts by consent, and, if so, for a determination of the appropriate award of benefits supported by the evidence of record.
Issues: 1) Did ALJ abuse his discretion by allowing post-Opinion & Award amendment of the Form 101?  
2) Did ALJ make appropriate findings of fact to support a determination that the parties tried the issue of the non-alleged body parts by consent? 
Holding: 1) Yes.  ALJ’s Order allowing amendment of the Form 101 alleging new body parts after the Opinon and Order was an abuse of discretion. 
2) No. The Administrative Law Judge did not make sufficient findings of fact regarding his determination that the neck and back were tried by consent.  
Rule: Once an application for benefits is filed by a claimant, it is the claimant’s burden to amend the claim to include all accrued and known causes of action during the pendency of the claim.  However, an ALJ may consider an issue or claim to have been tried by consent of the parties.  In making a finding of implied consent, an ALJ must make appropriate findings of fact based on the substantial evidence so that meaningful review may be performed.
Reasoning: 1) Regarding amendment of the claim post-decision, Defendant’s due process rights were violated by this action.  It was the Plaintiff’s burden to amend the claim when the cause of action regarding the neck and back became apparent as shown by the evidence.  
2) While the Plaintiff has the burden to amend the claim to include all known body parts, the Judge can find that the parties tried the neck and back by consent.  Kroger Co. v. Jones, 125 S.W.3d 241 (Ky. 2004); Collins v. Castleton Farms, Inc., 560 S.W.2d 830 (Ky. App. 1977).  However, the Board found Judge Rudloff, in finding that the parties tried the neck and back by consent, did not make appropriate determinations supported by substantial evidence and did not provide analysis that would allow for meaningful review.
Disposition: Vacated and remanded.
Board Members: Alvey, Stivers and Rechter
ALJ: Rudloff

Case Name, Citation, Author:  Myers v. Cox Interior, Inc. (Board Member Rechter) 
Facts: Plaintiff alleged he experienced intermittent pain shooting from his left shoulder throughout the day on 11-17-12 after spending his entire shift wrapping doors in bubble wrap and sending them through a bander while in the course of his employment for Defendant.  His pain worsened after he got home that night.  He called his supervisor to give notice and she directed him to seek treatment at Urgent Care where he was diagnosed with a pulled muscle.  
The Plaintiff saw Dr. Jerome Dixon who ordered a cervical MRI and referred him to Dr. John Guarnaschelli.  Dr. Guarnaschelli diagnosed cervical radiculopathy due to impingement at C6 and performed fusion surgery on 3-4-13.  Dr. Guarnaschelli did not render an opinion regarding causation.  He noted a history of onset of symptoms on 11-14-12 as opposed to 11-17-12.  
Plaintiff returned to light duty in April of 2013 but his left shoulder hurt him so severely he discontinued all work in July and was eventually terminated in October of 2013 for reasons not explained in the record.  
Dr. James Farrage performed an IME at Plaintiff’s request and assigned 26% whole-person impairment for the cervical fusion and ongoing symptoms which he related to the work event of 11-17-12.  
Dr. Gregory Gleis performed an IME at Defendant’s request and assigned 16% whole-person impairment which he found to be due to the natural aging process and not to the work event.  He opined the left shoulder symptoms were referred from the cervical spine and noted the shoulder displayed normal range of motion.
The Defendant also submitted a records review report of Dr. Bart Olash finding no connection between the Plaintiff’s ongoing symptoms and the work activities of 11-17-12.  Additionally, the Defendant filed the treatment records of chiropractor Dr. Stephen Shaw which showed the Plaintiff had complained of neck and bilateral shoulder problems in February and March of 2012 and on 11-14-12, just three days before the alleged work injury.
Procedural History: ALJ Wolff relied on Dr. Gleis in finding the Plaintiff failed to prove his left shoulder and cervical conditions are related to the work activities of 11-17-12.  Judge Wolff also noted he found Dr. Farrage unconvincing because Dr. Farrage did not indicate he had reviewed Dr. Shaw’s treatment records showing the cervical and shoulder complaints just three days before the alleged work injury.  Plaintiff filed a Petition for Reconsideration which was summarily denied.  The Plaintiff appealed to the Board.
Issue: Did the evidence compel a finding that Plaintiff suffered a work-related injury to his neck and left shoulder on 11-17-12?
Holding: No.  The evidence on the causation issue was conflicting.  The ALJ was within his discretion to find Dr. Gleis’ opinions most credible.   
Rule: Although a party may note evidence supporting a different outcome than reached by an ALJ, such is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  When a claimant in a Kentucky workers’ compensation claim fails to meet his burden of proof to convince an Administrative Law Judge his alleged injury is work-related, the question on appeal is whether the evidence compelled a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
Reasoning: Judge Wolff clearly outlined the substantial evidence, Dr. Gleis’ opinions, he relied on in concluding the Plaintiff’s conditions were not related to the work activities of 11-17-12.  The evidence did not compel a different finding.
Disposition: ALJ’s dismissal of claim was affirmed.
Board Members: Rechter, Stivers and Chairman Alvey all concurred.
ALJ: Wolff

Case Name, Citation, Author:  Perry v. Homestead Family Farm and Uninsured Employers’ Fund (Board Member Rechter) 
Facts: Plaintiff alleged he injured his neck, upper back and right arm on 12-28-13 when the auger he was operating caused him to fall.  He was a truck driver for the Defendant and was required to unload grain with an auger.  He was hired to haul grain and was injured approximately two weeks later.  He understood he was expected to perform other duties on the farm when he was not driving.
The Plaintiff testified Homestead grew and harvested grain and soybeans and then hauled the commodities to customers.  He picked up the grain in the field and delivered it to three locations: the riverport in Jeffersonville, Indiana, or to grain bins in Springfield, Kentucky or Howardstown, Kentucky.  Plaintiff believed Homestead was engaged solely in farming, that he only hauled crops grown on Homestead farms and that all of the equipment was owned by Homestead.
The Plaintiff testified on 12-28-13 he had hauled soybeans from a Homestead farm in Boyle County to the Springfield facility and was attempting to drag an auger under the truck when he fell on his back and right shoulder.
Ashley Reding, a general partner with Homestead, testified that Plaintiff hauled grain for Homestead and that haulers also performed other tasks during non-driving time such as cleaning out grain bins, repairing buildings and tending to sprayers.  Reding explained that haulers either haul the grain to storage bins or straight to market, but that it does not often go straight to market because it needs to be dried.  The grain goes through a dryer before being put in storage so that it will not mildew and mold.  Reding confirmed that all grain hauled by Plaintiff was grown by Homestead and that Homestead does not haul crops from or for any other farms.
Procedural History: The Uninsured Employers’ Fund was joined because Defendant was uninsured on the alleged injury date.  The claim was bifurcated to determine if the agricultural exception applied.
The Administrative Law Judge dismissed the claim pursuant to the agricultural exemption in KRS 342.630(1) and 342.650(5), finding the Plaintiff was employed in agriculture.  The Plaintiff filed a Petition for Reconsideration, which the ALJ denied, before appealing to the Workers’ Compensation Board.
The Plaintiff argued to the Board that the activity he was engaged in at the time of the injury does not fall within the statutory definition of “agriculture” pursuant to KRS 342.0011(18) as he was not on the farm premises when the injury occurred, as required by the statute, and the statutory definition specifically excludes the commercial drying and storing of grain for market.  The Plaintiff also argued the purpose of the Workers’ Compensation Act would be violated by extending the agricultural exemption to truck drivers working at a grain storage and drying facility.  The Plaintiff requested that the Board find as a matter of law that he was not engaged in agriculture, and reverse the opinion of the ALJ.
Issue: Was Plaintiff employed in agriculture and thus exempt from coverage under the Workers’ Compensation Act?
Holding: No.  Members Rechter and Stivers found Plaintiff’s work at the time of the injury constituted drying of commodities for market and thus was an exception found in the statutory definition of agriculture.   
Rule: KRS 342.650 exempts certain classes of employees from coverage of the Workers’ Compensation Act.  One of these classes is “Any person employed in agriculture,” found in subsection (5).  Agriculture is statutorily defined in KRS 342.0011(18) as “the operation of farm premises, including the planting, cultivation, producing, growing, harvesting and preparation for market of agricultural or horticultural commodities thereon, the raising of livestock for food products and for racing purposes, and poultry thereon, and any work performed as an incident to or in conjunction with the farm operations, including the sale of produce at on-site markets and the processing of produce for sale at on-site markets.  It shall not include the commercial processing, packing, drying, storing, or canning of such commodities for market, or making cheese or butter or other dairy products for market.”
Reasoning: Board members Rechter and Stivers ignored the fact that the Defendant was not engaged in the commercial drying and storing of commodities for market as the heart of its business but was instead strictly a company engaged in farming, and a company that only received income through the sale of grain.  The storing and drying of the grain that was grown on its own farms was merely incidental to its business of selling grain.  Chairman Alvey recognized this as the sole voice of reason and wrote an eloquent dissent.  Nevertheless, Rechter and Stivers carried the day with their latching onto the last sentence in the statutory definition of agriculture without placing that sentence in the context of the rest of the definition.  This should surely get appealed to the Court of Appeals where a three-judge panel will likely find that Board Members Rechter and Stivers misconstrued the statutory definition of agriculture.
Disposition: Board reversed ALJ and remanded for further proceedings.
Board Members: Rechter and Stivers.  Chairman Alvey dissented.
ALJ: Weatherby

Case Name, Citation, Author:  Stephens Pipe & Steel, LLC v. Hudson (Board Member Rechter) 
Facts: Plaintiff worked in carpentry as both an employee and independent contractor for 40 years.  Around 2008 he started dealing with Mike Adams, a foreman for the Defendant.  Hudson successfully bid on a job to erect two barns for Defendant.  Plaintiff was required to furnish all labor and materials.  Defendant paid Plaintiff for the jobs and Plaintiff then paid his workers.
Sometime around April of 2010 Defendant needed some metal buildings erected and negotiated with Plaintiff to do the job.  Plaintiff informed Mr. Adams he did not have the equipment necessary to complete the job.  Adams informed Plaintiff the Defendant would supply the equipment, such as lifts, cranes and welders.  Plaintiff did not supply the materials either.  Furthermore, though several of Plaintiff’s employees were hired to assist in the construction, those workers were paid directly by the Defendant.  
Plaintiff was paid by the hour.  At one point he requested taxes be taken from his check but they never were.  Plaintiff explained this arrangement continued for two years.  There were times Defendant would not have much work for Plaintiff but those periods were brief.  Plaintiff testified Mr. Adams would direct him where and how to erect the buildings.  
On 3-7-14, Plaintiff fell from the top of a pole barn while setting trusses.  He was seriously injured, breaking several vertebrae.
Mr. Adams testified Plaintiff was hired as an independent contractor to build metal buildings and the Defendant supplied all materials.  He stated the Plaintiff was paid hourly, at Plaintiff’s request, but he was paid via a Form 1099.  Mr. Adams exercised no control over how many workers Plaintiff hired to assist him or how many hours they worked.  He testified Plaintiff did not receive vacation time, health insurance or other benefits from Defendant, nor did Plaintiff’s employees.  Regarding Plaintiff’s request that taxes be withheld from his check, Mr. Adams stated he informed Plaintiff this would not be possible as Plaintiff was an independent contractor and not an employee.
Procedural History: ALJ Rudloff determined Plaintiff was an employee of Defendant as opposed to an independent contractor.  The ALJ noted that Mr. Adams visited the job sites daily and occasionally made modifications of the jobs, finding that Adams served as a “foreman” while Plaintiff and Plaintiff’s work crew served as the labor.  The ALJ also noted that the Plaintiff did not have knowledge of constructing the metal buildings and completed the work to the satisfaction of Mr. Adams, an agent for Defendant.  He also pointed out that the Plaintiff believed he was an employee as shown by his request that taxes be withheld from his check.
The Defendant filed a Petition for Reconsideration arguing the ALJ’s analysis was insufficient and requesting additional findings of fact considering Mr. Adams’ testimony.  The ALJ denied the petition and stated he had considered Mr. Adams’ testimony.
The Defendant appealed to the Workers’ Compensation Board.
Issue: Was the ALJ’s determination that Plaintiff was an employee as opposed to an independent contractor against the overwhelming weight of the evidence considering the nine factors listed in Ratliff v. Redmon, 396 S.W.2d 320 (Ky. 1965) and the refinement of that list in Chambers v. Wooten’s IGA Foodliner, 436 S.W.2d 265, 266 (Ky. 1969) in which the Court of Appeals identified the four predominant factors in an employee versus independent contractor analysis?
Holding: The Board did not reach a conclusion on the Defendant’s argument but did find that the ALJ had not made sufficient findings of fact as he did not adequately address the testimony of Mr. Adams and did not give a meaningful analysis of the Defendant’s regular business operations or the reason it retained Plaintiff’s services.  The Board vacated the finding of the employer-employee relationship and remanded for further findings. 
Rule: In the Ratliff case in 1965, the Court of Appeals outlined nine factors to be considered when deciding whether a worker is an employee or an independent contractor.  In the Chambers case in 1969, the Court of Appeals refined the list by identifying the four predominant factors necessary for a proper analysis as follows:
-    The nature of the work as related to the business generally carried on by the alleged employer;
-    The extent of control exercised by the alleged employer;
-    The professional skill of the alleged employee;
-    The true intentions of the parties.
Reasoning: The Board found that ALJ Rudloff’s analysis was insufficient because he did not provide a summary or significant discussion of Mr. Adams’ testimony which contradicted the Plaintiff’s testimony on the key issue of the intentions of the parties.  Furthermore, the ALJ did not provide a meaningful analysis of the Defendant’s regular business operations and the purpose behind its decision to retain the Plaintiff’s services.  The ALJ failed to provide an analysis of how the totality of the evidence was considered and how he weighed the inconsistencies between Plaintiff’s and Mr. Adams’ testimony. 
Disposition: Vacated and remanded to ALJ for further findings.
Board Members: Rechter, Stivers and Chairman Alvey all concurred.
ALJ: Rudloff

Case Name, Citation, Author:  Austin Powder Co. v. Stacy (Board Member Rechter)
Facts: Stacy filed a claim for coal workers’ pneumoconiosis (CWP) on 11-1-12 alleging he became affected by CWP on 4-16-12.  He was 59 at the time of his last exposure and had 42 years of exposure.  He was employed by Austin Powder from 5-3-05 through 4-6-12 as a blast hole drill operator.
Procedural History: ALJ Case found Stacy entitled to a 50% disability award due to CWP.  He relied on Dr. Byron Westerfield, the appointed KRS 342.316 physician.  Dr. Westerfield read the chest x-ray as 1/0 and found claimant to have a significant pulmonary impairment attributable in part to CWP.  Dr. Westerfield’s highest FEV1 value was 54% and ALJ Case relied on this figure which entitled claimant to a 50% disability award.  On appeal to the Board, Austin Powder argues that the holding in Vision Mining Inc. v. Gardner, 364 S.W.3d 455 (Ky. 2011) (the Supreme Court opinion holding the state black lung law unconstitutional as not affording equal protection to coal workers’ pneumoconiosis claimants as the law held them to a different standard of proof compared to claimants alleging other types of pneumoconiosis) prevents the state from applying special rules such as the ones found in KRS 342.732(2) which allows ALJs to select from either the highest FVC value or highest FEV1 value to determine the presence of respiratory impairment resulting from exposure to coal dust.  Austin Powder argued ALJs should be required to follow the 5th Edition of the AMA Guides to conclude that FVC is the only relevant measurement of entitlement to disability in CWP cases because FEV1 measures an obstructive defect as opposed to a restrictive defect caused by CWP.  The Board disposed of the appeal without addressing the merits of Austin Powder’s arguments by stating it did not have the authority to declare statutes unconstitutional, Austin Powder had failed to preserve this issue for appeal and furthermore, Austin Powder had failed to notice the Attorney General which is required on all actions challenging the constitutionality of state law.
Issues: Is KRS 342.732(2), which allows an ALJ to select between either the highest FVC value or the highest FEV1 value in pulmonary function testing in determining respiratory impairment in CWP cases, unconstitutional because it treats coal workers’ pneumoconiosis claimants differently from other pneumoconiosis claimants?
Holding: ALJ is affirmed.  Merits not addressed as fatal flaw present in appeal.
Rule: When challenging constitutionality of a state statute, filing party must have preserved the issue for appeal and must notice the Attorney General.  Furthermore, the Board does not have the authority to declare a statute unconstitutional.  
Reasoning: See above under “Rule.”
Disposition: ALJ affirmed.
Board Members: Alvey, Stivers and Rechter
ALJ: R. Roland Case

Case Name, Citation, Author:  Buffalo Trace Distillery v. Mitchell (Chairman Alvey)
Facts: Plaintiff alleged injury to his left foot on July 24, 2013 after feeling pop and feeling pain upon descending a step while in the course of his employment. He was off work until 10-15-13 and upon returning could only work 40 hours max weekly.  He was returned to full duty on January 21, 2014.  However, he now works as a production attendant which involves inspecting and labeling.  He makes less money per hour in the new position but is able to sit while working.  At the time of the injury he was working on the line averaging 60 hours weekly while taking sealed bottles from the line, placing them in boxes, sealing the boxes and placing the boxes on skids.  This prior position involved constant standing or walking.  He experiences occasional aches in the left foot still.
Dr. Dobner, the treating orthopedic surgeon in Frankfort, diagnosed plantar fasciitis post-acute tear of the plantar fascia.  Dr. Dobner assigned a 2% whole-person impairment rating for chronic pain.
Defendant had filed the records review report of Dr. William Nemeth, an orthopedic surgeon in Texas, who found Plaintiff had plantar fasciitis with chronic tear unrelated to his work at Buffalo Trace.  Defendant also submitted the records review report of Dr. George Quill, an orthopedic surgeon in Louisville.  Dr. Quill opined the work event resulted in no permanent harmful change, no impairment and resulted in no need for restrictions.  He felt the Plaintiff’s symptoms were due to a chronic pre-existing condition.
Procedural History: The Administrative Law Judge awarded TTD for period from 8-1-13 through 1-21-14.  She also awarded PPD benefits based on Dr. Dobner’s 2% rating (no multiplier) and awarded future medicals.  The Defendant filed a Petition for Reconsideration arguing TTD could only be awarded to 10-14-13 when Plaintiff returned to work, and that the 2% rating of Dr. Dobner could not be basis for Award because it was not assessed in accordance with the 5th Edition of the AMA Guides.  The ALJ overruled the Petition.  Defendant appealed to the Board on same issues.
Issues: 1) Does the fact that the Plaintiff returned to work for the Defendant working full-time mandate termination of TTD benefits at that time?  
2) Was Dr. Dobner’s 2% rating substantial evidence? (Was the rating in accordance with the 5th Edition of the AMA Guides?)
Holding: 1) No.  The Plaintiff had bid into a position that required him to work less hours and permitted him to sit while working.  The ALJ adequately noted these things in rendering her award of TTD benefits to run up to the date of MMI.  (Board member Stivers dissented on the TTD issue and stated the ALJ should have performed an analysis to determine whether the work the Plaintiff returned to was “customary” work for the Plaintiff.)
2) Yes.  The ALJ’s reliance on Dr. Dobner’s opinion concerning impairment will not be disturbed as the Defendant did not cross-examine Dr. Dobner regarding his use of the Guides and furthermore, the Defendant did not submit an opinion from its experts impeaching Dr. Dobner’s use of the Guides.
Rule: KRS 342.0011(11)(a) defines temporary total disability as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.”  Central Kentucky Steel v.Wise, 19 S.W.3d 657 (Ky. 2000) interpreted “return to employment” as contained in this definition to mean a return to the type of work which is customary for the injured employee or that which the employee had been performing prior to being injured.  The Court in Wise emphasized the return to employment did not have to be to the same job but just to work that is considered customary work for the Plaintiff.
Pursuant to Brasch-Berry General Contractors v. Jones, 189 S.W.3d 149 (Ky. App. 2006), an expert medical opinion that is shown by other medical expert opinion to be contrary to the 5th Edition of the AMA Guides cannot constitute substantial evidence.  However, the Board holds that the proper method for impeaching a physician’s methodology pursuant to the AMA Guides is through cross-examination or the opinion of another medical expert.
Reasoning: The Board noted all the limitations the Plaintiff was working under in his new position.  Dr. Dobner continued to have him under restrictions until the MMI date.  While the Board did not get into a good analysis of whether the work he was performing was “customary,” it seemed to imply it wasn’t customary due to the different physical requirements and the restrictions he was working under.  Regarding the AMA Guides issue, the Board takes the position that a medical expert’s methodology must be impeached by other medical expert opinion.
Disposition: ALJ affirmed.
Board Members: Alvey, Stivers and Rechter
ALJ: Kinney

Case Name, Citation, Author:  Davenport v. Economy Maintenance, Inc. (Board Member Stivers)
Facts: Plaintiff was working for a handyman service and had only been on the job for two weeks when he was injured in a single vehicle accident.  There was conflicting testimony regarding his use of the company van.  Plaintiff testified he was allowed to use the service vehicle as an inducement to remain employed by the company.  The company owner testified he was only allowing Plaintiff to drive the company vehicle because Plaintiff was having problems with his personal pickup truck and that Plaintiff was advised he would only be allowed to use the company vehicle for a limited time.  Plaintiff admitted that at the time he started using the company vehicle his pickup truck was not functional.  However, he stated that by the time of the accident his personal truck had been repaired and was functioning again.
Procedural History: The Administrative Law Judge dismissed the claim in finding that the Plaintiff was merely returning home from work at the time of the accident and was not providing any service to the employer by driving the company vehicle.  Plaintiff petitioned the ALJ for additional findings of fact regarding the service to employer argument and the ALJ overruled the Petition.
Issues: Did Plaintiff’s operation of the company vehicle at the time of the accident form the basis of an exception to the “going and coming” rule?
Holding: ALJ’s ruling supported by substantial evidence (Appeal dismissed)
Rule: The “going and coming” rule was defined by the Supreme Court of Kentucky in Receveur Construction Co. v. Rogers, 958 S.W.2d 18 (Ky. 1997).  Injuries sustained by employees going to or returning from the place where they regularly perform their work duties are not deemed to arise out of and in the course and scope of employment.  However, there are exceptions to the “going and coming” rule and one of those is a situation where a claimant is providing a service to the employer at the time of the travel to or from work.  Kentucky courts have held that whether an employee is providing a service to the employer is a question of fact for the ALJ.  Howard D. Sturgill & Sons v. Fairchild, 647 S.W.2d 796, 798 (Ky. 1983).
Reasoning: The Board dismissed the appeal stating the ALJ had clearly stated the substantial evidence she relied on in finding the Plaintiff’s use of the company vehicle was providing no service to the employer.  The ALJ was convinced by the owner’s testimony that not even supervisors were allowed to drive company vehicles home and that in fact, only one employee, the emergency on-call serviceman, was permitted full-time use of a company vehicle.  ALJ Miller found the Plaintiff was only using the company vehicle as a convenience provided by the employer to the employee while he was having his personal vehicle repaired.  Plaintiff had driven to a worksite, worked all day, and was returning home at the time of the accident.  The ALJ determined the accident was not in the course and scope of employment as it did not fall within an exception to the “going and coming rule.”  
Interesting side note:  Plaintiff attempted to argue on appeal that the Plaintiff should have been deemed to fall within the “traveling employee” exception to the “going and coming” rule.  The Board found this argument was not properly preserved for appeal as “traveling employee” was not listed on the BRC Order and Memorandum and was first argued in the Petition for Reconsideration.
Disposition: Appeal dismissed.
Board Members: Alvey, Stivers and Rechter
ALJ: Miller

Case Name, Citation, Author:  Feltner v. TECO/Perry Co. Coal (Board Member Rechter)
Facts: Plaintiff alleged a hearing loss due to harmful exposure in course of his employment for Defendant.  
Procedural History: The Administrative Law Judge found Plaintiff to warrant a 5% impairment rating as a result of occupational hearing loss.  Due to Plaintiff’s impairment not rising to the 8% impairment rating threshold to qualify for an award of income benefits pursuant to KRS 342.7305, no indemnity award was given.  Plaintiff appealed to the Board challenging the constitutionality of KRS 342.7305.  
Issues: Is KRS 342.7305 unconstitutional because it denies income benefits to claimants with demonstrable hearing loss because the resulting impairment rating is below 8%?  Is KRS 342.7305 unconstitutional because it violates equal protection of the Plaintiff under the Fourteenth Amendment to the United States Constitution and Sections 1, 2 and 3 of the Kentucky Constitution?
Holding: Workers’ Compensation Board has no authority to address constitutionality of statutes enacted by the Kentucky General Assembly.
Rule: Workers’ Compensation Board has no authority to address constitutionality of statutes enacted by the Kentucky General Assembly.
Reasoning: See above.
Disposition: ALJ affirmed.
Board Members: Alvey, Stivers and Rechter
ALJ: Roark

Case Name, Citation, Author:  Koch Corporation v. Gaspard (Chairman Alvey)
Facts: Plaintiff injured his lower back carrying a large piece of glass on 10-6-08 while in the course and scope of his employment for Koch.  After transfers between three ALJs, a medical fee dispute, a surgery and a long abeyance period, the Opinion, Award and Order was issued on 5-27-14.  In addition to granting a PPD award based on 20% whole-person impairment, the ALJ also awarded the Plaintiff TTD benefits for the period from 12-14-10, the approximate date his doctor restricted him from work, to 7-23-13, the day he reached MMI.  The Defendant had argued Plaintiff was not due TTD benefits for this period as he had returned to work operating a bread delivery route which involved self-employment.  Plaintiff testified he hired another party to do the actual physical labor of delivering the bread.  The ALJ found this bread route did not constitute a return to employment for purposes of the TTD requirements as detailed in Central Kentucky Steel v. Wise, 19 S.W.3d 657 (Ky. 2000) and Magellan Behavioral Health v. Helms, 140 S.W.3d 579 (Ky. App. 2004).  Koch Corporation filed a Petition for Reconsideration and ALJ overruled it.
Procedural History: The Administrative Law Judge awarded TTD for period Plaintiff was earning income through self-employment.  Defendant filed Petition for Reconsideration which ALJ overruled.  Defendant appealed to Board.
Issues: Did the ALJ fail to make the proper analysis and findings concerning entitlement to TTD benefits by not specifically stating whether the Plaintiff had or had not returned to customary work?  Specifically, did the ALJ err by not providing specific findings of fact concerning whether the Plaintiff’s self-employment concerning the bread route constituted customary work for Plaintiff?
Holding: The Board agreed with Defendant and remanded to ALJ to make specific findings of fact regarding entitlement to TTD benefits as outlined in Wise and Helms.
Rule: KRS 342.0011(11)(a) defines temporary total disability as “the condition of an employee who has not reached maximum medical improvement from an injury and has not reached a level of improvement that would permit a return to employment.”  Wise interpreted “return to employment” as contained in this definition to mean a return to the type of work which is customary for the injured employee or that which the employee had been performing prior to being injured.  The Court in Wise emphasized the return to employment did not have to be to the same job but just to work that is considered customary work for the Plaintiff.
Reasoning: The Board remanded to the ALJ because it found the ALJ had not made specific findings regarding whether the operation of the bread delivery route by the Plaintiff was work that was customary for him.
Disposition: Remanded to ALJ for additional findings.
Board Members: Alvey, Stivers and Rechter
ALJ: Williams

Case Name, Citation, Author:  Louisville and Jefferson Co. Metro Sewer District v. Payne (Board Member Rechter)
Facts: Plaintiff alleged a lower back injury with radiculopathy into left leg after lifting an 80 lb. bag of concrete on 10-21-12 in the course of her job for Defendant.  Plaintiff testified she gave verbal notice to supervisor at that time but did not complete a written injury report due to experiencing a hostile environment concerning the reporting of workplace injuries.  Plaintiff reported her job was physically demanding and she had been to the emergency room several times on prior occasions but that the 10-21-12 event produced significantly worse pain than she’d had previously and new radicular symptoms into her left leg.  Her supervisor denied being told of any work injury.
Plaintiff filed report of Dr. Warren Bilkey who diagnosed recurrent lumbar strain and aggravation of degenerative disc disease.  He opined Plaintiff was due a 5% whole-person impairment rating with 40% apportioned to the alleged injury of 10-21-12 and 60% to a subsequent work injury on 4-9-14.
The Defendant submitted the 10-21-12 records of St. Mary and Elizabeth Hospital showing she complained on that date of a left groin injury with pain radiating to the left leg.  She did not indicate she had a work injury.  Instead, she reported a fall from a truck on 7-12-12.  The Defendant also filed MRI reports showing mild to moderate degenerative changes from L3 to S1 and a 10-3-12 emergency room record regarding low back pain Plaintiff was alleging as due to events at work two to three months before that date. 
Procedural History: The Administrative Law Judge found Plaintiff and Dr. Bilkey to be most credible and rendered an award of PPD benefits based on the apportionment Dr. Bilkey gave, thus granting an award for 2% whole-person impairment.  The Defendant filed a Petition for Reconsideration alleging Judge Rudloff had not considered the report of Dr. Ellen Ballard submitted by the Defendant and that there was not substantial evidence to support a finding the Plaintiff gave proper notice.   Judge Rudloff, in overruling the Petition, ruled the report of Dr. Ballard had not been listed with all the other evidence on the Hearing Order, which Defendant’s counsel reviewed and signed, and thus Defendant waived its right to rely on Dr. Ballard’s opinions. 
The Defendant made the same arguments on appeal to the Board.  The Board affirmed the ALJ’s Award.
Issues: 1) Is a Plaintiff’s testimony regarding notice enough to constitute substantial evidence of notice when Plaintiff fails to file a written report of injury, presents initial medical records that fail to document any work event causing injury, and has her testimony impeached by the supervisor to whom she claims to have given notice of the injury?
2) Was ALJ Rudloff’s failure to consider Dr. Ballard’s report proper, as though it was not listed on the Hearing Order, it was listed on the Defendant’s Witness List?
Holding: 1) Yes.  Plaintiff’s testimony alone on notice issue was substantial evidence upon which the ALJ was permitted to rely. 
2)  Yes, ALJ Rudloff did not have to consider Dr. Ballard’s report as evidence as he gave the attorneys the chance to review the Hearing Order regarding the listing of all evidence and the Defendant failed to include Dr. Ballard’s report on the Hearing Order.  The Board noted that Dr. Ballard’s report had not been mentioned in Defendant’s brief to the ALJ.
Rule: 1) Plaintiff’s testimony alone can constitute substantial evidence on notice issue.
2) Attorneys are responsible for reviewing Hearing Orders and ensuring all evidence is listed properly.
Reasoning: On factual matters concerning the injury event and notice, the Plaintiff’s testimony alone can constitute substantial evidence and the ALJ as the sole fact finder has the authority to determine the weight, credibility, substance and inferences to be drawn from the evidence.
Disposition: ALJ affirmed.
Board Members: Alvey, Stivers and Rechter
ALJ: Rudloff

Case Name, Citation, Author:  Ray Haase Heating & Air v. Smith (Board Member Rechter)
Facts: Plaintiff suffered a neck and right upper extremity injury on 12-16-11 when he lifted a heating unit overhead.  Plaintiff underwent a compensable cervical fusion surgery on 7-10-12 and was returned to work with no restrictions by treating physician Dr. Harold Cannon on 8-23-12.  However, because Plaintiff feared reinjury if he returned to the overhead sheet metal work he was doing at time of injury, he declined to return to work for the Defendant-employer.  He submitted the IME opinion of Dr. Jules Barefoot stating he did not reach maximum medical improvement (MMI) until 7-10-13, one year post-op.  Despite the fact that Plaintiff found work earning approximately four times more weekly than the AWW he was earning for Defendant-employer, and in fact started that work for the subsequent employer on 9-16-12 (important to note this was doing a type of work, heat treatment technician, he’d done for six years in the past), Judge Rudloff nevertheless awarded Plaintiff TTD benefits from the date of injury, 12-16-11, through the date Dr. Barefoot declared MMI, 7-10-13.
Procedural History: The Board had already remanded on the appealed TTD issue to Judge Rudloff once but in this decision they have vacated his TTD findings again and remanded once more as he once again failed to analyze on the first remand whether the Plaintiff “returned to work” within the meaning of KRS 342.0011(a) when Plaintiff began working as a heat treatment technician.  The ALJ’s TTD award is again vacated and he is again ordered to make this analysis on remand.
Issues: Was ALJ’s award of TTD benefits from the date Plaintiff began working at subsequent employer, 9-16-12, through the date Dr. Barefoot declared MMI, 7-10-13, proper considering the nature of the employment Plaintiff returned to with the subsequent employer?
Holding: The Board remanded to the ALJ (the sole fact finder) to make the analysis and determination required by law concerning the award of TTD benefits.  
Rule: Pursuant to the definition of Temporary Total Disability found in KRS 342.0011(11)(a), a claimant is entitled to TTD benefits until either reaching MMI or reaching a level of improvement that would permit a return to employment.  In Central Kentucky Steel v. Wise, 19 S.W.3d 657, 659 (Ky. 2000), the Supreme Court of Kentucky interpreted the language “return to employment” to mean a return to work that is “customary or that he was performing at the time of his injury.”  When a claimant has returned to work before MMI is reached, the question regarding whether TTD is owed concerns whether that work is “customary” to that particular claimant.
Reasoning: The Board noted ALJ had not performed the proper analysis.
Disposition: Vacated and remanded for a second time.
Board Members: Alvey, Stivers and Rechter
ALJ: William Rudloff

Case Name, Citation, Author:  Speedway, LLC v. Rose (Board Member Stivers)
Facts: Plaintiff alleged right shoulder injury while stocking a cooler at a Speedway store on 5-19-14 in Huntington, West Virginia.  Plaintiff estimated he had worked at the Huntington store for about a week before his injury.  He began working at Speedway in August of 2013 at the Ashland, Kentucky store and remained an employee of that location until the end of April, 2014.  He then worked one shift at the South Point, Ohio location and then worked two weeks at the Ceredo, West Virginia location.  He was then transferred to the Huntington, West Virginia store one week before he was hurt.  He worked two more nights after the alleged injury and sustained another painful event regarding the right shoulder on one of those nights, again while stocking the cooler.  He did not work again until June 20, 2014 when he went to work at a Speedway store in Louisville where he’d been transferred.  
The Plaintiff testified he had informed Speedway he planned to transfer to the Louisville store at the end of April and that the moves to the West Virginia locations were understood to be temporary ones.  He explained that district manager John Bush was assisting him in the transfer to the Louisville store.  
Plaintiff testified he has always been a Kentucky resident.  He denied ever filing a comp claim in West Virginia and stated he never thought to do so because he worked mostly in Kentucky for Speedway.  
Procedural History: The Administrative Law Judge found Plaintiff was covered under the extraterritorial provisions of KRS 342.670. 
On appeal by Defendant, the Board vacated and remanded to the Chief ALJ for reassignment to a new ALJ (ALJ Rudloff was not reappointed) for a determination regarding whether Kentucky has extraterritorial jurisdiction of this claim with a statement of the evidence supporting such a finding pursuant to KRS 342.670.
Issues: Was ALJ’s finding of extraterritorial jurisdiction supported by substantial evidence?
Holding: No. The ALJ did not clearly set out the basic facts which supported his ultimate conclusion, that Kentucky has extraterritorial jurisdiction.  
Rule: “Only when an opinion summarizes the conflicting evidence accurately and states the evidentiary basis for the ALJ’s finding does it enable the Board and reviewing courts to determine in the summary manner contemplated by KRS 342.285(2) whether the finding is supported by substantial evidence and reasonable.”  Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61, 62 (Ky. 2012)
Reasoning: The ALJ only stated that he found the Plaintiff credible and that he found that the Plaintiff had largely worked in Kentucky.  He did not state how he related the entirety of the evidentiary record to the requirements of KRS 342.670, the portion of the statute dealing with extraterritorial coverage.  The Board noted that the ALJ’s finding that the Plaintiff’s work was performed largely in Kentucky does not resolve whether at the time of Plaintiff’s injury his employment was principally localized in West Virginia, or alternatively, not principally localized in any state.  This finding was a necessary one for a proper analysis of whether Kentucky has extraterritorial jurisdiction pursuant to KRS 342.670.  As there is no dispute regarding the fact that the contract for hire was made in Kentucky, and that Plaintiff was injured in West Virginia, if his employment was principally localized in West Virginia at the time of the injury, West Virginia has jurisdiction and Kentucky does not.  If his employment was not principally localized in any state at the time of the injury, Kentucky would have jurisdiction.  The ALJ failed to make this finding, or at least failed to state he had made this finding and failed to state the evidence he relied upon in making such finding.
Disposition: Vacated and remanded.
Board Members: Alvey, Stivers and Rechter
ALJ: Rudloff

Case Name, Citation, Author:  Toyota Manufacturing v. Prichard (Board Member Stivers)
Facts: Plaintiff injured her neck 3-16-05.  She settled that claim on 11-13-07 based on 8% PPI.  She reopened in 2009 alleging worsening of condition and pointed to facts she had been taken off work in May of 2008 and had undergone cervical fusion surgery at C4-7 by Dr. James Bean on 8-1-08.  After various medical fee disputes were thrown in the mix of that reopening, Judge Frasier issued an Award in 2011 finding Plaintiff had an 8% impairment at time of prior settlement and was now entitled to PPD benefits for her current PPI of 28% with application of the 3x multiplier.  
On 8-14-14 Prichard filed a Motion to Reopen alleging permanent total disability due to her deteriorating cervical condition.  She filed the report of Dr. Bean with the Motion containing his findings that the Plaintiff was now unable to perform even sedentary work.  Attached to Dr. Bean’s report was a questionnaire in which Dr. Bean checked both “yes” and “no” to the question: “Has Ms. Prichard’s work-related cervical condition and impairment worsened since your last previous examination?”  He then expounded, “Yes – unable to perform continuous sedentary duty.  No – radiographically unchanged.”  Dr. Bean also listed MRI, personal observation and a 2011 Functional Capacity Evaluation as evidence of Plaintiff’s worsening of condition.  The report of Dr. William Childers was also introduced in evidence.  Dr. Childers opined the Plaintiff was unable to engage in even sedentary employment.
Judge Rudloff found the Plaintiff’s condition to have greatly worsened since the 2011 Award on reopening.  Judge Rudloff entered an Award for permanent total disability.   
Procedural History: The Defendant filed a Petition for Reconsideration asserting Prichard’s Motion to Reopen was not filed within the statutory period mandated by KRS 342.125(3).  Toyota also asserted the Motion to Reopen was defective in that it did not demonstrate any objective change in impairment as required by KRS 342.125(1)(d).  The ALJ overruled the Petition citing his reliance on the case of Hall v. Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2009) regarding the timeliness of the Motion to Reopen, and the report of Dr. Bean attached to the Motion to Reopen regarding the Defendant’s argument that the Motion didn’t contain the required proof of worsening of impairment.  Defendant then made this appeal to the Board making the same arguments it made in its Petition for Reconsideration.
Issues: Was the reopening within the statute of limitations for reopenings as prescribed by KRS 342.125(3)?  Also, did the Motion to Reopen contain the required proof of worsening of impairment mandated by KRS 342.125(1)(d)?
Holding: The Board affirmed the ALJ finding that the reopening was timely and within the period prescribed by KRS 342.125(3) as interpreted in controlling case law, and that the Motion to Reopen was not defective.  The Board found the date of Judge Frasier’s 9-30-11 Award on reopening to be the controlling date concerning the commencement of the running of the statute of limitations prescribed in KRS 342.125(3) based on the rule in the Hall case discussed below.  
Rule: KRS 342.125(3) states that a Motion to Reopen for an increase of an Award due to increase in impairment must be filed no more than four years “following the date of the original award or order granting or denying benefits…”  In Hall, cited above, the Supreme Court of Kentucky found “the reference in KRS 342.125(3) to ‘the original award or order granting or denying benefits,’ must necessarily refer not only to the original award, but to any subsequent order granting or denying benefits.”  Regarding the Motion containing the necessary proof of a change of disability, the Board simply noted the ALJ’s stated reliance on the opinions of Dr. Bean.  
Reasoning: The Board relied on the controlling Hall case.  What is interesting is that Board Chairman Alvey issued a dissenting opinion in which he strongly rebuked the Supreme Court’s holding in Hall.  Chairman Alvey stated that contrary to the limitations language in KRS 342.125(3), which obviously evinces the legislature’s intent for there to be a limitation for reopening for increased PPD or PTD benefits, the Supreme Court’s holding in Hall allows for reopening for an increase in PPD benefits or for an upgrade to PTD benefits in perpetuity.
Disposition: ALJ affirmed.
Board Members: Alvey, Stivers and Rechter
ALJ: William Rudloff

Case Name, Citation, Author:  Coyle v. Atlantic Aviation
Facts:  In 2005, Coyle (employee) was employed as an operations supervisor when he injured his left leg and low back.  The injury occurred when a tug truck struck him and momentarily pinned him against a ramp being used to load horses into the aircraft.  He filed a workers’ compensation claim which was settled and approved in 2007 based on an 8.5% impairment rating.  Coyle did not waive his right to reopen or his right to future medical benefits.  Coyle returned to work until 2009, when a spinal fusion at L4-5 and L5-S1 was performed by Dr. John Johnson and Dr. Christopher Shields.  Following the fusion surgery, he returned to full duty work in December, 2009.  In November 2011, Coyle’s position at Atlantic Aviation changed and involved more manual labor.  Following his job change, Coyle gradually began to experience low back and leg pain.  He testified the back pain was similar to the pain he experienced following the 2005 injury.
Dr. Johnson stated Coyle’s current problems were the result of “effusion which occurs as a result of the original injury in 2005.”  Dr. Warren Bilkey diagnosed a lumbar strain in 2012 and chronic low back pain.  He concluded, “The above diagnoses are due to the December 10, 2012 work injury.”  Dr. Bilkey assigned a 26% whole person impairment.  However, he qualified that he is “not sure what the pre-existing active impairment would be.”  He further stated the chronic low back pain is a combination of his work activities since November 2011 and an aggravation of his 2005 injury and subsequent fusion.  Dr. Bilkey explained he would have assigned an impairment rating between 20% and 23% following the 2009 surgery.  Dr. Timothy Kriss opined his current condition is unrelated to the 2005 injury.  Dr. Kriss concluded Coyle suffered from dormant degenerative disease that was brought into disabling reality by his work activities in late 2011 and throughout 2012.
Dr. Henry Tutt opined Coyle may have sustained a lumbar strain at the end of 2011 or in 2012, but that injury would have healed by the time of his examination.  Dr. Tutt concluded there is no evidence to indicate Coyle sustained any recent structural alteration of the lumbar spine as a result of his work activities in 2011 and 2012.  Dr. Russell Travis noted Coyle had degenerative changes at the L3-4 level before his 2005 injury, and his current complaints are a natural progression of the degenerative process.  He believed Coyle’s current back problems relate to neither the 2005 accident nor his work activities in 2011 and 2012.  
Procedural History:  Coyle filed a motion to reopen on February 8, 2013, alleging his temporary total disability benefits had been improperly terminated.  The ALJ ultimately concluded Coyle hadd suffered a new and distinct cumulative trauma injury as a result of his work duties in 2011 and 2012.  He relied upon Drs. Bilkey and Kriss in reaching this conclusion.  The ALJ awarded permanent total disability benefits and medical benefits.  The ALJ determined Coyle had not suffered a change in disability due to a worsening of his 2005 impairment.  He therefore dismissed the motion to reopen.
On Appeal, Coyle argues Atlantic Aviation is estopped and has waived any claim as it related to any limitation of action defense because it did not file a notice of termination of temporary total disability benefits as required by KRS 342.040 after benefits ceased in 2009.  Atlantic argues the ALJ failed to enter sufficient findings of fact with respect to Coyle’s statute of limitations argument, as well as the merits of the claim on reopening.
Issue:  Whether Coyle’s current condition is the result of a new cumulative trauma injury, a worsening of the 2005 injury, or a combination of both.
Holding:  Remanded to determine the answer
Rule:  The date for triggering the running of the limitations period and for giving notice in a cumulative trauma claim is when the worker has knowledge that a harmful change has occurred and is informed by a physician that it is work-related.
Pursuant to KRS 342.325, the ALJ shall determine all questions arising under Chapter 342.  The exercise of this jurisdiction is not discretionary.  The language of KRS 342.325 is mandatory.
Reasoning:  The ALJ did not squarely address Coyle’s estoppel argument as applied to the motion to reopen.  However, any error in this omission is harmless because the ALJ dismissed the motion to reopen on the merits.  Given the numerous conflicting medical opinions presented in this case, we cannot conclude the totality of the evidence compelled a result in Coyle’s favor.
The ALJ determined Coyle was first notified of a potential cumulative trauma injury by Dr. Kriss’ April 17, 2013 report, and so stated in both the Opinion and the Order on Reconsideration.  While he might have more clearly labeled or identified April 17, 2013 as the “manifestation date for purposes of notice and statute of limitations,” we conclude the ALJ’s language sufficiently apprises the parties of his ultimate determination.  Having determined Coyle was notified of his cumulative trauma injury on April 17, 2013, the ALJ correctly concluded his May 30, 2013 Form 101 was filed within the two-year statute of limitations set forth in KRS 342.185(1).
Atlantic correctly points out that the ALJ has improperly failed to designate which carrier is responsible for Coyle’s cumulative trauma injuries.  Therefore, this portion of the Opinion is vacated and the claim remanded to the ALJ for a determination of whether Liberty Mutual, Atlantic or both are liable for Coyle’s cumulative trauma injury.
The ALJ’s analysis concerning pre-existing active disability is insufficient.  On remand, if the ALJ believes Coyle did not have a pre-existing disability at the time of his cumulative trauma, he must enter a specific finding of fact and identify the evidence upon which he relies in reaching such conclusion.  However, if the ALJ determines Coyle suffered a pre-existing disability at the time of his cumulative trauma, the ALJ must determine what percentage of Coyle’s current impairment rating is attributable to the pre-existing active disability.  Furthermore, the ALJ must determine if Coyle’s current cumulative trauma is sufficient, by itself, to cause permanent total disability.
Disposition:  Affirmed in part, Vacated in part, and Remanded
Board Members:  Alvey, Stivers, and Rechter
ALJ:  William J. Rudloff

 

 

 

Case Name, Citation, Author:  Cundiff v. TSG Trucking
Facts:  The Form 101 alleges work-related injuries to Cundiff’s right shoulder and back occurring on July 8, 2012 when he “caught himself when falling out of a truck.”  Dr. Bart Goldman stated that Cundiff has complaints without objective findings related to his cervical and thoracic spines.  Dr. Goldman assessed a 15% whole person impairment rating, but a 0% impairment rating related to the work injury.  Dr. Goldman stated, “There is nothing on examination at this time which would preclude him from returning to any type of work that he was able to do prior to the 7/8/2012 injury.”  Dr. Jerry Morris opined Cundiff’s symptoms are a direct result of the work-related occurrence.  Dr. Morris assessed a 5% impairment for Cundiff’s right shoulder condition, a 13% impairment for his lumbar spine condition, and an additional 3% impairment because of “his marked impediments to activities of daily living based on the pain survey.”
Procedural History:  The ALJ found Dr. Goldman’s opinion to be the most persuasive and dismissed Cundiff’s claim for PPD and TTD benefits.  As to the issue of unpaid or contested medical expenses, the ALJ determined the Defendant was responsible for the Plaintiff’s reasonable medical expenses incurred as the result of the work related accident which were two ER visits.
Issue:  1) Whether the ALJ erred by failing to award income benefits for Cundiff’s back and shoulder injuries.
2) Whether Dr Goldman addressed the existence of a pre-existing active shoulder condition.
Holding:  1) No  2) No
Rule:  In workers’ compensation cases, the claimant bears the burden of proof and risk of non-persuasion regarding every element of his or her claim.  In order to sustain that burden, a claimant must put forth substantial evidence, evidence sufficient to convince reasonable people, in support of each element.
Reasoning:  The ALJ determined Cundiff “did injure his shoulder and back in what was a temporary exacerbation of a prior, active pre-existing condition.”  The ALJ also stated that the opinions of Dr. Goldman persuaded him to make this determination.  Dr. Goldman’s opinions fully support this determination regarding Cundiff’s back condition.  However, Dr. Goldman did not address the existence of a pre-existing active shoulder condition.  On remand, the ALJ must identify, with specificity, the medical evidence in the record which supports his conclusion that Cundiff did injure his shoulder in what was a temporary exacerbation of a prior, active pre-existing condition.  Should the ALJ determine Dr. Goldman’s opinions cannot be relied upon in determining Cundiff sustained a temporary exacerbation of a prior, active pre-existing condition to his shoulder, then he must cite to the medical evidence which supports this determination.  The ALJ must also determine whether Cundiff is entitled to future medical benefits for each injury.
Disposition:  Affirmed in part, Vacated in part, and Remanded
Board Members:  Alvey, Stivers, and Rechter
ALJ:  Steven G. Bolton

Case Name, Citation, Author:  Hampton v. Intech Contracting
Facts:  Hampton (employee) filed a Form 101 on January 28, 2010 alleging he sustained severe injuries including lumbar, thoracic and cervical fractures, and eventual amputation of the left leg below the knee, in addition to tetraplegia, when he fell from a bridge on September 9, 2009 when he became disoriented due to low blood sugar while working for Intech.  Intech filed a Special Answer denying the allegation the accident and ensuing injuries were work-related.  Intech also raised the issue of whether Hampton’s claim should be barred due to intoxication at the time of the accident.  Finally, Intech alleged a safety penalty pursuant to KRS 342.165(1) may be applicable to the claim.
Procedural History:  ALJ Lawrence Smith rendered an Opinion and Order dismissing the claim.  ALJ Smith determined although the accident occurred at work, it was not caused by the work.  This Board entered an opinion affirming ALJ Smith’s dismissal of the claim.  The Kentucky Court of Appeals affirmed.  The Kentucky Supreme Court reversed and remanded.
Dr. Sara Salles stated all medications were related to the injuries Hampton received from falling from the bridge, except for insulin which, “goes back to his history of diabetes.”  Dr. Salles testified Hampton reached MMI at some point between 12 and 18 months after the date of his injuries.  She did determine the fall “complicated” his diabetes.
ALJ Coleman rendered a decision awarding PTD and medical benefits to Hampton.  However, the ALJ determined Intech was not responsible for providing Hampton a handicap accessible van which had been requested.  Additionally, relying upon the testimony of Dr. Salles, the ALJ found Intech was only responsible for payment for Hampton’s treatment for diabetes for a period of 18 months after the injury.
Issue:  Whether the ALJ erred in finding Intech responsible for payment of treatment for diabetes for only a limited period of 18 months following the accident.
Holding:  No
Rule:  An employee may be responsible for reasonable and necessary medical expenses when a subsequent work related event causes a worsening or progression of a pre-existing active condition.  However, in a situation where the subsequent injury does not result in any structural change nor additional impairment an award of medical benefits during the period of temporary aggravation until an individual returns to his baseline condition may be appropriate.
It is possible for an injured worker to establish a temporary injury for which temporary benefits may be paid, but fail to prove a permanent harmful change to the human organism for which permanent benefits are authorized.
Reasoning:  On review, the Board finds Hampton’s appeal regarding the ALJ’s finding Intech is only responsible for payment for treatment of his diabetes for a period of 18 months to be nothing more than a re-argument of the evidence.  Hampton impermissibly requests this Board to engage in fact-finding and substitute its judgment as to the weight and credibility of the evidence for that of the ALJ.  This is not the Board’s function.  Here, the ALJ determined Hampton had reached MMI for the condition he actively treated prior to the work injury.  Dr. Salles opined Hampton reached MMI one year to 18 months post-injury.  There is no evidence Hampton’s diabetes was permanently worsened from its pre-injury state.  Giving Hampton the benefits of the doubt, the ALJ determined 18 months was appropriate.  No other result is compelled.
Disposition:  Affirmed
Board Members:  Alvey, Stivers, and Rechter
ALJ:  John B. Coleman

Case Name, Citation, Author:  Kentucky Dept. of Parks v. Perkins
Facts:  Perkins filed a Form 101 on February 2, 2012 alleging he injured his neck, head, right arm, and back on June 24, 2011 while working for KDP.  Perkins’ employment history includes working as a manager of a special needs facility, security supervisor at a metal manufacturing facility, assistant in the foaling barn of a horse farm and as a state park maintenance worker.  He is a high school graduate.  He is now restricted from lifting over 25 pounds and cannot engage in overhead lifting, although he still has the same job classification.  He earns $11,60 per hour for a 37.5 hour work week.  He plans to continue to work for KDP, but does not believe he will be able to do so indefinitely.
Dr. Warren Bilkey stated Perkins had reached MMI and assessed a 10% impairment rating.  Dr. Guarnaschelli stated Perkins has not reached MMI.  Dr. Guarnaschelli did not specifically provide a functional impairment rating, but stated Perkins met the criteria for a DRE category three at Table 15-5, Page 392 of the AMA Guides.  Dr. Ellen Ballard assessed a 3% impairment rating.  She opined the neck and shoulder complaints were unrelated to the work injury.  She assessed no restrictions, and stated Perkins does not need treatment or medications for his work injury.  Dr. Henry Tutt stated Perkins was at MMI, and he assessed a 0% impairment rating.  He also assessed no restrictions, and stated Perkins had the capacity to return to his work with the KDP.
Procedural History:  The ALJ rendered a decision awarding TTD benefits, PPD benefits based upon a 15% impairment rating with the application of multipliers pursuant to KRS 342.730(1)(c) 1 & 3, and medical benefits.
Issue:  Whether the ALJ provided an adequate basis for her determination of the impairment rating.
Holding:  No
Rule:  Generally, the ALJ’S authority to use the AMA Guides is limited to essentially mechanical applications.  An ALJ is however authorized to use the combined values chart, select an impairment rating within a class of impairment stated by a physician, or use the AMA Guides in other instances where medical expertise is not required.
Reasoning:  “We find the ALJ’s determination Perkins sustained work-related injuries to his neck radiating into his right upper extremity on June 24, 2011 while mowing is supported by substantial evidence.  Likewise, we find the ALJ performed the proper analysis pursuant to Fawbush and Adkins. . . . That said, we note the ALJ based the award on a 15% impairment rating assessed by Dr. Guarnaschelli.  However, Dr. Guarnaschelli did not assess a 15% impairment rating.”  A review of the table referenced by Dr. Guarnaschelli reveals the range of impairment for category III impairment is 15-18%.  Certainly the finding of a 15% impairment rating, the lowest in the range of the category referenced by Dr. Guarnaschelli, may be appropriate; however, the ALJ must specifically make such finding, and provide her basis for doing so.  On remand, the ALJ is directed to make a specific determination of the impairment rating, and provide the basis for her determination.
Disposition:  Affirmed in part, Vacated in part, and Remanded
Board Members:  Alvey, Stivers, and Rechter
ALJ:  Jeanie Owen Miller