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, Date Entered: Pilkington North America, Inc. v. Clyde Larry Bryant; WCB No. 201702169, 201702162 & 201702161; Alvey; Entered 6/10/2019. Procedural History: Pilkington appeals from an award of PPD and medical benefits for an occupational hearing loss. Facts: Bryant filed 3 separate claims, however the only one discussed here and in the WCB opinion was the hearing loss claim due to repetitive loud noise in the workplace, with 12/5/2016 as the date of last exposure. Attached to the Form 103 was a document containing the raw data of audiometry testing performed on 12/4/2017 at the Beltone Hearing Aid Center. The unsigned document contained no statements addressing diagnosis, causation or work-relatedness. Pilkington filed motions to dismiss the Form 103, and, for a protective order against evaluations pursuant to KRS 342.315. Pilkington alleged the hearing loss application failed to satisfy 803 KAR 25:010 sec. 7(1)(d)(2), requiring an application to be accompanied by a medical opinion establishing a causal relationship between the work-related events or the medical condition subject of the claim. Also sec. 10(4) requires all medical reports to include a statement of qualifications of the person making the report or a medical qualifications index number. Pilkington asserted the testing report failed to satisfy both regulatory requirements, and requested dismissal of the hearing loss claim, as well as an order preventing a university medical evaluation pursuant to KRS 342.315, as well as 803 KAR 25:010 sec. 11, since the allegations were an occupational hearing loss, until the ALJ addressed the sufficiency of Bryant’s hearing loss application. The ALJ issued an order granting Bryant 30 days to file medical causation records and/or report into evidence. If not, Plaintiff was to show cause why the case should not be dismissed. Within 30 days, Bryant filed a letter which stated that the results of the evaluation demonstrated hearing loss which is consistent with noise induced hearing loss. The ALJ issued an order finding that Bryant had satisfied both the regulation and the order. Pilkington again filed his motions arguing that the statement failed to address work-relatedness/causation and that the author was not qualified to offer a medical opinion since he was only an apprentice instruments specialist. The ALJ now issued an order striking the report, and canceling the UHE, however, since the Plaintiff previously had attempted to comply with the order, and, in fact, the ALJ had issued an order so stating, the ALJ granted Plaintiff another 30 days to comply. Pilkington now argued that the regulations do not provide for extensions of time based on attempts at compliance and the ALJ did not have the authority to grant another extension. A dismissal of the claim was again requested. Pilkington also moved to bifurcate the claim and for an assessment of costs due to unreasonable proceedings pursuant to KRS 342.310(1). In response, Bryant timely filed a questionnaire completed by Dr. Daniel Mongiardo dated 3/12/2018, indicating a high frequency noise exposure type loss, recommending a noise free work environment and stating his opinions are within the realm of reasonable medical probability. He also filed a 12/4/2018 audiometry test reviewed by Dr. Lisa Koch, Au.D, wherein she diagnosed moderate to high frequency hearing loss and recommended binaural hearing aids. The ALJ overruled Pilkington’s motions, stating the deadline had been met, and even if he did dismiss the claim, Bryant could refile. The claim was to move forward. Pilkington filed voluminous medical records, including testing, and also provided these to the University Hearing Examiner (UHE). Dr. Casey Rutledge Roof, Au.D. performed the UHE. Several tests were performed, but Dr. Roof requested retesting in order to determine diagnosis and causation. Dr. Roof left the causation portion of the Form 107 blank, however did assess a 9% rating with no prior active prior to this injury. Hearing protective devices were recommended. Bryant testified he had not worked since 12/5/2016, but this was due too uncontrolled diabetes. He had also undergone major cardiac surgery. The ALJ granted an award based on the 9% with the three multiplier, with 12/5/2016 the date of last exposure. He also made findings regarding the sufficiency of the Form 103 and Pilkington’s entitlement to costs pursuant to KRS 342.310. A petition for reconsideration was filed, but no request for additional findings of fact. Issues: 1) Did the ALJ act arbitrarily and abuse his discretion in granting Bryant a second thirty day window to file a Form 103 compliant with the regulation to file a medical opinion establishing a causal relationship between the work-related event and the medical condition at the time, or within 15 days of the filing of the application? 2) Did the ALJ act arbitrarily when he declined to award costs since Bryant had disregarded the regulations when he filed his claim, and tried to argue his application was not deficient? 3) When the UHE concluded that “diagnosis and causation cannot be determined without retest”, was the ALJ allowed to discard the testimony of the UHE since it is a university evaluation and entitled to a rebuttable presumption? Holding: 1) No 2) No 3) Yes Reasoning: 1) The original order granted 30 days, and the AL incorrectly assumed that the author of the filed report was a qualified expert when he ruled the report satisfied his order. That report was stricken, and 30 days granted to file a new one. The WCB ruled that this was not an abuse of discretion, as the ALJ is the gatekeeper and the arbiter of the record and has the authority to control the taking and presentation of proof. The ALJ thoroughly explained his reasoning. The ALJ clearly considered and weighed Pilkington’s objections. 2) The use of the word “may” in the statute indicates the determination to impose sanctions is permissive and solely within the discretion of the ALJ. The record did not reveal an abuse of discretion, especially in light of the fact the ALJ determined that Bryant did sustain a work-related hearing loss. 3) The rebuttable presumption does not restrict the ALJ’s authority to weigh conflicting medical evidence. The ALJ provided an extensive analysis, especially on rebuttable presumption. Dr. Roof’s opinion favors Pilkington since it did not satisfy Bryant’s causation burden. This simply shifted to Bryant the burden of going forward with evidence rebutting the testimony. The ALJ refused to equate Dr. Roof’s “no opinion” on causation to a finding that hazardous noise did not cause Bryant’s hearing loss. Bryant successfully rebutted the presumption with Dr. Mongiardo’s opinion. On several occasions, the ALJ explained why he found Dr. Mongiardo’s opinion more persuasive. A reasonable basis for accepting Mongiardo and rejecting Roof was provided by the ALJ. Overcoming the rebuttable presumption of a university evaluator is discussed in Magic Coal Company v. Fox, 19 S.W. 3rd 88 (2000). There the Kentucky Supreme Court stated that the clinical findings and opinions of the university evaluator constitute substantial evidence of the worker’s medical condition which may not be disregarded by the fact-finder unless rebutted. Where the clinical findings and opinions of the university evaluator are rebutted, KRS 342. 315(2) does not restrict the authority of the fact-finder to weigh the conflicting evidence. Disposition: Affirmed ALJ: Hon. Brent Dye

Case Name, Citation, Author, Date Entered: Diana Lynn Miller v. Rallco Inc.; WCB No. 201686757; Alvey; Entered 6/28/2019. Procedural History: Miller appeals from an award of TTD, PPD, and medicals for a left shoulder sustained on 4/22/2016 arguing the ALJ erred in dismissing her alleged left knee injury claim and in awarding PPD benefits for the shoulder only, based upon a 7% rating. Facts: Miller alleged injuries to several body parts on 4/22/2016. Only the left shoulder and left knee injuries will be discussed here. Miller was a drive-thru window cashier for Rally’s for approximately 3 years when she tried to open a refrigerator door. The refrigerator fell toward her causing her to fall to the floor. Miller denied any prior pain in the neck or left shoulder but admitted to prior pain in both knees, including orthoscopic surgery on both knees. At the time of the injury she was not on restrictions, taking medicine for, nor experiencing any problems with her left knee or shoulder. Miller submitted records from Kentucky Orthopedic Associates (KOA), including Dr. Heilig who performed a left shoulder rotator cuff repair, SLAP repair, and distal clavicle resection, chondroplasty and subacromial decompression. He diagnosed severe degenerative joint disease, and performed a total knee on 8/22/2017. Dr. Gregory Grau, also of KOA, examined her and could not explain her symptoms. Prior records from KOA reveal significant treatment for the left knee including injections and surgery. Shoulder treatment had also included injections and positive MRIs. Dr. Richard Holt reviewed the records and assigned 15% to the left shoulder and 10% to the left knee, for a total of 24%, and limited her to sedentary work. He indicated Miller had a pre-existing dormant condition in the left shoulder and a pre-existing active condition in the left knee. Rallco filed Dr. Gregory Snider who diagnosed a left shoulder sprain or strain super-imposed on pre-existing shoulder complaints, and assigned 9% WPI to the shoulder, 7% to the injury. He found no injury for the knee. The ALJ found only the left shoulder was work-related, and, relying on Dr. Snider awarded 7%. Also relying on Dr. Snider the knee conditions were unrelated to the work injury. Issues: 1) Did substantial evidence support the ALJ’s determination that the left knee condition was unrelated to the work-injury? 2) Was the ALJ required to perform an analysis under Finley for the left shoulder? Holding: 1) Yes 2) Yes Reasoning: 1) The ALJ relied upon Dr. Snider’s opinion in reaching his decision, as well as pointing out Dr. Holt’s opinion. Snider’s report showed an extensive review and summarization of the medical records, both pre-dating and subsequent to the injury. Dr. Snider’s opinion alone constituted substantial evidence. Since he found the left knee not to be work-related, he was not required to perform an analysis under Finley. 2) It was undisputed that Miller sustained a work injury to the left shoulder. Dr. Snider assigned 9% and found “half of the ROM deficit is attributable to preexisting active complaints.” He then carved out 2%. The ALJ, however, did not perform an analysis addressing whether Miller’s pre-existing left shoulder condition was “symptomatic and impairment ratable pursuant to the Guides immediately prior to the occurrence of the work-related injury.” The case was remanded to the ALJ for a Finley analysis for the left shoulder. Disposition: Affirmed in Part, Vacated in Part, and Remanded ALJ: Hon. Roland Case

Case Name, Citation, Author, Date Entered: Cassens transport Co. v. Timothy Mariano; WCB No. 201586551; Alvey; Entered 6/14/2019. Procedural History: Cassens appeals from an order on Mariano’s MTR for additional TTD benefits. Mariano was awarded TTD benefits from June 14, 2018 thru 8/7/2018. Facts: Mariano sustained a March, 2015 low back injury when unlocking a safety pin from a trailer and he sank into the snow. A settlement agreement was approved by the ALJ April 19, 2018, reflecting TTD and medical expenses paid, PPD in the form of a lump sum for a compromised rating, and Mariano retaining the right to future medicals and the right to reopen. Two months later on June 14, 2018 Mariano filed a MTR for additional TTD benefits, which was sustained. A hearing was held with identified issues as entitlement to additional TTD from 6/14/2018 to 8/7/2018 (Yes, that’s just under 8 weeks), and whether Mariano sustained a new injury barred by the settlement agreement. After the 4/19/2018 settlement, Mariano went to see his treating physician, Dr. Kim, whose records reflect at those meetings the original injury. On May 30, 2018, Dr. Kim placed Mariano on restricted duty. The next visit in June was the same. Mariano remained on restricted duty until August 8, 2018. In an IME report filed with the MTR, dated November, 2017, Dr. Jules Barefoot had noted that Mariano would continue to have ongoing significant problems with low back pain radiating into his left leg, and that the pain syndrome in 2018 was related to the 2015 injury. Cassens resubmitted the 12/4/2017 IME report of Dr. Michael Best, who had found no work injury in March, 2015. The ALJ found Mariano to be a credible witness, and noted the similar symptoms in 2015. The ALJ was convinced that Mariano had not reached MMI and had not reached a level of improvement which would permit a return to employment during his flare up of his injury symptoms in May, 2018 thru August, 2018. Issues: In this MTR, was the 2018 low back pain of Mariano related to the 2015 low back injury? Holding: Yes Reasoning: The medical records, and in particular the office notes, of Dr. Kim as well as the report by Dr. Barefoot support the ALJ’s determination that Mariano’s 2018 symptoms are related to the 3/20/2015 work injury. Disposition: Affirmed ALJ: Hon. Christina Hajjar

Case Name, Citation, Author, Date Entered: Angela Lundy v. Owensboro Health Regional Hospital; WCB No. 201698536; Stivers; Entered 6/14/2019. Procedural History: Lundy appeals from an award of TTD, PPD, and medical benefits for a work-related right knee menisci surgery Lundy underwent, however, the order and award also determined that the right knee replacement surgery that Lundy underwent is non-compensable and that she is not entitled to enhanced PPD benefits. Facts: Lundy, an RN in surgery, injured her right knee on 1/12/2016 when she slipped on a wet floor, slid on her knee, and hit the corner of a metal desk. She was terminated in July, 2016. She was released by her physician without restrictions in March, 2017, but explained she could no longer work as a surgery nurse due to the 12 hour days, getting on the floor, and lifting. Dr. Philip Hurley performed partial medial and lateral meniscectomies along with abrasion chondroplasty on the right knee on 3/21/2016. Shortly thereafter, Lundy then proceeded to a total knee replacement, which WC denied. Dr. Hurley’s records show that Lundy was treated for right knee issues beginning in 2007. In 2008, Dr. Hurley believed her pain was coming from arthritis. She had similar complaints through 2015, however, Dr. Hurley did not consider knee replacement because of Lundy’s age. Dr. Hurley admitted in his deposition that the arthritis in the knee had been pre-existing and active for 10 years, but, however, was still responding to conservative treatment, meaning no surgery. The fall caused the menisci surgery which affected the arthritis and made it worse. It accelerated the need for a replacement that Lundy was eventually going to need anyway. Unable to place a time on it, he felt it was “a few years off.” Lundy also filed an IME of Dr. James Carothers who assessed a 16% WPI and opined the replacement surgery was due to the work injury “pure and simple.” OHRH filed Dr. Bart Goldman finding the surgery to be reasonable, but not related to the work-injury. The ALJ found the torn menisci surgery compensable, however, found the knee replacement surgery to be not work-related. On the issue of the three multiplier, the torn menisci surgery would not have precluded Lundy from returning to work, and following the injury Lundy never RTW at equal or greater wages. Issues: 1) Did the ALJ err in concluding the right knee replacement surgery is non-compensable? 2) Did the ALJ err by failing to award the three multiplier? Holding: 1) Yes 2) TBD Reasoning: 1) It was unclear from the wording of the ALJ award the specific evidence upon which the ALJ relied in determining Lundy’s knee replacement surgery is not related to the work injury. The implication is that he relied upon Dr. Hurley’s opinions, however, implication is insufficient. Further, Dr. Hurley opined the work-related fall exacerbated Lundy’s arthritis which ultimately accelerated the need for the knee replacement surgery. It was the exacerbation of a pre-existing active condition. Therefore, the knee replacement surgery is at least in part, work-related. On remand, the ALJ, if he continues to rely on Dr. Hurley, cannot find the knee replacement surgery to be non-compensable. There is other medical evidence which would support a finding of non-work-relatedness. 2) The denial of the three is vacated. On remand, the ALJ must determine the compensability of the knee replacement surgery, and then re-address the applicability of the three to either situation, that is, whether the surgery or compensable or not. Disposition: Vacating in Part and Remanding ALJ: Hon. Chris Davis

Case Name, Citation, Author, Date Entered: Vetco Builders v. Darren Medders; WCB No. 201897825; Alvey; Entered 6/21/2019. Procedural History: Vetco appeals from an award of TTD and temporary medical benefits for a work-related shock/electrocution on 1/11/2018 while assisting with moving metal rods. Facts: Medders alleged an injury on 1/11/2018 when he encountered electrical currents while moving metal rods, and was electrocuted. He had previously been electrocuted in 1996 and diagnosed with PTSD for which he was treated several years. At the time of the accident Medders said he saw a flash, and experienced a burning sensation in the right arm to the elbow. The shock was not as intense as 1996. He was taken to the ER, underwent testing, and prescribed pain medication and valium. Prior to the accident, he had been treated for PTSD, but that had decreased. Prior to the accident though he had seen APRN Kim Edwards for depression, anxiety attacks, and night terrors, including on 1/10/2018. He then treated with her and Katherine Self, a counsellor, for several months following the accident. Records from Nurse Edwards noted that Medders was treated for headaches since the accident. Anxiety had improved, but there were bouts of shaking. The 1996 PTSD had resolved and was in remission until this electrocution. Medders filed the report of Dr. Dennis Sprague, Ph.D., a psychologist who examined him on 7/2/2018. He diagnosed Medders with a major depressive disorder, moderate; disorder due to medical condition post status injury date; somatic symptom disorder with predomination pain; history of marijuana and IV drug use; and symptoms of antisocial disorder. Within reasonable psychological probability, the conditions directly resulted from the work injury. He assigned a 10% rating, of which 3% was due to his pre-existing active condition. Dr. Timothy Allen, M.D., a psychiatrist, evaluated Medders on 10/3/2018, who diagnosed PTSD, pre-existing major depressive disorder, and generalized anxiety disorder. He was MMI, with no restrictions. A 10% was assigned, one-half to PTSD and one-half to the major depression, but none due to the accident. In his award, the ALJ determined Medders was electrocuted and awarded TTD from the date of the accident until 10/3/2018 when Dr. Allen found MMI. He also relied on Dr. Allen in not awarding PPD, and further found that medicals were only awarded through the date of MMI. Issues: Did the ALJ decision awarding TTD benefits provide a sufficient analysis to support the award? Holding: No Reasoning: Other than Medders own testimony there is no evidence of record establishing that he was in fact temporarily totally disabled from working. There was no evidence of record indicating any physician took Medders off work or that he had restrictions preventing him from working. There was minimal evidence of post-injury treatment, and the ALJ made no analysis regarding whether Medders could perform his usual work, whether he had any restrictions, or the basis for the award. On remand, the ALJ is directed to make an analysis regarding an award of TTD benefits. Disposition: Affirmed in Part, Vacated in Part, and Remanded ALJ: Hon. Roland Case

Case Name, Citation, Author, Date Entered: Southwire Co/KY Rod & Cable v. Shondese Frazier; 2018-CA-000734-WC; Thompson, K.; Rendered 6/28/2019; Not To Be Published. Procedural History: Southwire appeals from an opinion and order affirming the decision of the ALJ allowing the reopening of a workers’ compensation claim by Frazier and subsequently finding him to be PTD. Facts: Frazier filed a claim for a head injury he received on 9/23/2011. In an award entered on 10/3/2013 the ALJ found Frazier had a 5% impairment for physical injuries and 5% for psychological for a 10% PI, and applied the 3 multiplier. The ALJ found he could perform light work with restrictions, and, further the award was enhanced by 30% for violation of a federal regulation which required appropriate guarding on the machine Frazier was using. On 8/1/2016 Frazier filed a MTR arguing that his condition requires significant and continuous medical treatment by a neurologist and treatment poorly controls his symptoms. His condition was more symptomatic and disabling, his limitations had increased, and he needed assistance with ADLs and was unable to undergo vocational rehab, and thus, he was totally disabled. Frazier testified that his headache condition had worsened and required continuous medical treatment. His ADLs had decreased. Frazier’s treating physician, Dr. Mittal testified that Frazier continues to have chronic daily headaches without improvement, despite trials of several medications. His headaches were likely intractable migraines, and he had to be allowed to lie down in a dark room when he has the headaches. Dr. Jackson testified that Frazier was compliant with PT, cognitive therapy, and medication. WC would not approve a spinal nerve stimulator. Frazier could not work, and he was trying to do the right thing. The decision does not provide any information as to whether or not Southwire produced any medical evidence. Finding Frazier’s testimony credible, and relying on the testimony of Dr. Jackson, the ALJ found credible Frazier would be able to work but for the headaches, and found him totally disabled. The WCB affirmed. Issues: Is res judicata applicable in a reopening when PTD was awarded, and there had been no change in the impairment rating from the 10% assigned in the original award? Holding: No Reasoning: Objective measures must show a worsening of a Claimant’s condition. Here, the doctor relied on objective measures to determine a worsening: Larger doses of medicine are now required, functionality has worsened, and physical exam findings and symptoms are consistent with the mechanism of the injury. When a statute expressly provides a mechanism for reopening under specified conditions, res judicata has no application when the specified conditions are met. A change in physical condition does not mean that a functional impairment rating has to change and is not a basis for denying a MTR; an increase of pain and an inability to work can justify an increase in the degree of occupational disability even to the extent of determining that a worker is totally unemployable even though that worker’s functional impairment remains the same. Disposition: Affirmed ALJ: Hon. Jeanie Owen Miller COA Panel: Acree, Dixon and K. Thompson

Case Name, Citation, Author, Date Entered: Raymond Banks d/b/a Banks Auto Sales v. Charles Crasse; WCB No. 201500985; Stivers; Entered 6/25/2019. Procedural History: Banks seeks review of an award finding Crase finding Crase sustained a work-related injury to his hands, fingers, and thumb, and was awarded TTD, PPD, and medicals. The ALJ enhanced the PPD by 3, and that is the only issue on appeal now. Facts: Crase was essentially a handyman for Banks, and on the date of injury while mowing a lawn, the lawnmower turned over and didn’t cut off, and continued coming towards Crasse. He reached up to grab it and severely injured his hand. He lost three fingers and substantial use of the thumb. The ALJ, relying on Drs. David Jenkinson, Smith, and Guberman, determined Crasse did not retain the physical capacity to perform some of his work tasks on a regular basis, even though he may have been able to perform them on a limited basis. Dr. Smith had testified that Crasse did not retain the physical capacity to return to the type of work he was performing as he could not do jobs requiring dexterity, or lifting with the right hand, nor put stress on the right hand, and no climbing, balancing running dangerous machinery drive commercially, etc., in short, nothing that would place his hand in danger. Dr. Guberman noted his stumps were tender and sensitive to touch, with sensory loss in the right hand, and grip strength and manipulability were markedly impaired. The ALJ also relied on the testimony of Crasse. Issues: In this amputation case, where three fingers were amputated and the thumb severely injured, was there substantial evidence to uphold the application of the three multiplier? Holding: Yes Reasoning: The medical evidence was well supportive that Crasse could not return to the type of work performed at the time of injury. As well, the ALJ could rely on the testimony of Crasse and his self-assessment of his ability to perform his prior work. Disposition: Affirmed ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: City of Salyersville v. Mike Nickels; WCB No. 201699633; Stivers; Entered 6/21/2019. Procedural History: Salyersville appeals from an order denying its MTR, asserting the CALJ’s denial of its MTR is contrary to the plain language of KRS 342.125 which permits a reopening in the case of “newly discovered evidence’ and “conforming the award to employee’s work status for injuries after 12-12-96.” Facts: Nickels, a police officer, was injured in a work-related mva on 1/1/2016. He was still not working on the date of the hearing 3/21/2017. On 5/19/2017, the ALJ awarded Nickels TTD, PPD (enhanced by 3), and medical benefits for his permanent injuries to his cervical and lumbar spines. On 1/23/2019, Salyersville filed a MTR alleging change of disability shown by objective medical evidence, newly discovered evidence, and conforming the award to employee’s work status for injures after 12/12/1996. It asserted Nickels had RTW as a police officer, and had been involved in an mva. It also alleged that he was now earning equal or greater wages, having returned to the same type of work at the time of injury. The CALJ overruled the MTR, finding there was no evidence of improvement of impairment as required by statute, and the change in work status may be new evidence, but it is not ”newly discovered evidence,’ as that type of evidence must be in existence at the time of the decision. Further, the CALJ, in deciding whether an employer can reopen a claim to conform an award with relief from the three-multiplier because of a return to pre-injury work, noted there were no reported decisions addressing that issue, and referenced a WCB case which held that the application of the three multiplier was res judicata and could not be changed, however, an award could be amended to conform in circumstances involving the two-multiplier. Michael Watts v. Competitive Auto Ramp Services, 2004-91678. Issues: 1) Was a return to the same kind of work performed prior to the injury, in this case as a police officer, for equal or greater wages, but after the award which applied the three multiplier, considered to be “newly discovered evidence” under KRS 342.125? 2) Does KRS 342.730(1) (c) (4) only allow for reopening under subparagraph 2, the subparagraph dealing with the application of the two multiplier? Holding: 1) No 2) Yes Reasoning: 1) Newly discovered evidence” must have been in existence before the entry of a judgment. It may not be construed to include evidence that came into being after a matter was decided. When a party fails to make a prima facie showing of the conditions for reopening specified under KRS 342.125, the ALJ and the WCB are without jurisdiction to provide relief and the doctrine of res judicata controls. Therefore the application of the three multiplier in the original order and award is res judicata and cannot be disturbed under the theory of “newly discovered evidence.” 2) Nothing in subparagraph 4 evinces the intent to affect awards made under subparagraph 1 (the application of the three multiplier). For a discussion, see a Supreme Court unpublished opinion in Phillips Tree Experts, Inc. v. Gene Travis, 2006-SC-000633-WC (April, 2007). Disposition: Affirmed ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Slater Fore Consulting Inc. v. Leslie B. Rife; No. 2018-CA-000647-WC; Taylor; Rendered 6/21/2019; Not to be Published. Procedural History: Slater Fore appeals from a WCB opinion affirming the ALJ on remand that included interest on the benefits awarded. Facts: Rife sustained a work-related injury in June, 2012, and received an award of PPD and medical beginning on 9/9/2012. When he was injured the interest rate on unpaid benefits was 12%. During the pendency of the claim, the statute was amended to 6% effective 6/29/2019. The ALJ thus applied 12% interest rate to all unpaid benefits of compensation up to 6/28/2017, and 6% to all installments payable after 6/29/2017 until paid. Issues: Did the amended statute require the ALJ to award 6% interest on all past-due benefits? Holding: No Reasoning: No statute shall be construed to be retroactive unless expressly so declared. The WCB correctly affirmed the ALJ’s application of the 12% interest rate to payments prior to 6/29/2017, and 6% interest rate after that date. Disposition: Affirmed ALJ: Hon. Tanya Pullin COA Panel: Lambert, Maze, and Taylor

Case Name, Citation, Author, Date Entered: Professional Finances Services v. Serena Gordon: No. 2018-SC-000363-WC; Memorandum Opinion; Rendered 6/13/2019; Not To Be Published. Procedural History: PFS appeals from a COA opinion affirming the decision of the WCB which had upheld the decision of the ALJ awarding Gordon disability and medical benefits for an injury she sustained when she tripped and fell in the parking lot leaving work one evening. The SCT holds that the ALJ’s determination was conclusory and insufficiently factually or legally based, and that the WCB improperly filled in the factual blanks in afforming the ALJ’s decision. Facts: While walking to her parked car from PFS’s office building after work Gordon realized she had forgotten her employer-issued iPad in the office and turned back to retrieve it. Returning to her car with the iPad she tripped over a curb in the parking lot and injured her leg. The ALJ agreed with PFS that the injury did not occur on its business premises, however concluded that the injury occurred during the course and scope of her employment since her purpose in turning back was to retrieve her employer issued iPad so she could work at home. Specifically, the act of retrieving the tablet to work at home was for the benefit of the employer and not for her personal benefit. The ALJ devoted two paragraphs to this analysis, citing only a 1918 case. PFS requested additional findings of fact which the ALJ denied. The WCB affirmed on a 2-1 vote finding Gordon should be compensated based on the “service to employer” exception to Kentucky’s traditional rule that injuries sustained when workers are coming and going to work are not compensable. The WCB opined that Gordon had veered from the usual process of coming and going when she reached her vehicle and returned to pick up the iPad, and did not resume regular “coming and going” until she again returned to the vehicle to resume her drive home. It held the ALJ’s findings of fact were sufficient to support the conclusion that Gordon had deviated from her usual process of coming and going to retrieve the tablet, a deviation which benefitted PFS. A dissenting WCB member opined the case should have been remanded for an additional analysis as to whether any exceptions were applicable, which PFS had requested. The COA affirmed 2-1, again, there was a dissenting vote, stating the WCB and the COA expanded and incorrectly applied Kentucky’s workers” compensation law. Once Gordon had retrieved her tablet the errand which benefitted her employer was complete. Issues: Did the WCB, as affirmed by the COA, err by engaging in improper fact-finding and misconstruing controlling law in applying the “service to the employer” exception since no substantial evidence supported its application? Holding: Yes. Reasoning: Parties to a WC action are entitled to a sufficient explanation by an ALJ of the basis for the decision. A determination of whether an injury occurred within the course and scope of employment is a fact sensitive analysis. While the WCB concluded that Gordon’s detour in service to the employer would have ended when she returned to her vehicle to drive home, the ALJ’s opinion is devoid of any factual findings with respect to Gordon’s “veering’ or “detouring” from her usual “coming and going” and makes no reference to the “service to the employer” exception. The WCB filled in the blanks and connected the dots to reach the same conclusion, but through a more in-depth and complete analysis. The ALJ did not make any findings as to exactly Gordon’s activities became for the “benefit of the employer” and when they ceased. The ALJ’s findings were insufficient to resolve the issue at bar. Disposition: Reversing and Remanding ALJ: Hon. Roland Case

Case Name, Citation, Author, Date Entered: Letcher County Board of Education v. Roger Hall; 2018-SC-000638-WC; Keller; Rendered 6/13/2019; To Be Published. Procedural History: The ALJ dismissed Hall’s claim for mesothelioma after exposure to asbestos as a teacher in Letcher County. The WCB unanimously reversed the ALJ, and the COA unanimously affirmed the WCB. Facts: Hall was employed as a teacher in Letcher County schools from 1976 until retirement in 2003. He worked in two buildings-the old and the new high school. The boiler room in the old school was used as a breakroom for teachers, and even after Hall moved across the street into the new high school, teachers continued to use the boiler room as a break room. After his retirement, Hall occasionally worked as a substitute teacher until 2014. Hall filed his Form 102-OD on 9/4/2015 alleging he developed mesothelioma in his abdominal area after being exposed to asbestos over the course of his employment. The ALJ concluded that Hall’s mesothelioma was caused by his exposure to asbestos during his employment, however determined Hall’s claim was untimely filed pursuant to KRS 342.316 (4) (a), as not being within 20 years of his last injurious exposure. The ALJ specifically found Hall’s last exposure to asbestos occurred in 1990, when the insulation was removed from the boiler room, and dismissed the claim. The WCB reversed based on testimony that while much of the asbestos was removed from the boiler room in 1990, the boiler room tiles, also asbestos, were not removed until 2003, or sometime subsequent. The statute of limitations was thus satisfied. Issues: Is Hall’s claim for mesothelioma resulting from exposure to asbestos barred by the statute of limitations? Holding: No. Reasoning: Medical records from the physician indicated that Hall’s exposure was to both insulation and tile floors. The floor tiles were still present when Hall retired and were not removed until after Hall’s retirement. This was confirmed by a maintenance supervisor at the school. These facts were cited by the WCB in its opinion. Further, there were still asbestos tiling in the school at the time of Hall’s deposition. The issue here is not whether the exposure caused Hall’s mesothelioma. Rather, the statute requires only that exposure could independently cause the disease-not that it did in fact cause the disease. It was clear from the evidence that all asbestos containing material from the school building had failed to be eradicated, and was present in the school until 2003 and beyond. Barring some clear evidence that Hall was not, or could not have been, exposed to the remaining asbestos material, Letcher County could not meet its present burden. Disposition: Affirmed ALJ: Hon. Christina Hajjar

Case Name, Citation, Author, Date Entered: Jennifer Creager v. Ford Motor Company; No. 2018-CA-000873-WC; Dixon; Rendered 4/26/2019; Not To Be Published Procedural History: Creager seeks review of a WCB opinion affirming an ALJ decision to dismiss her claim for benefits. Facts: Creager started working in the paint repair department at Ford in 1992. In 2004, she underwent L5-S1 discectomy. Five years later she started pain management treatment for the back, and in the fall of 2014, after complaining about neck pain and radiculopathy she underwent an MRI which revealed disc protrusions at C5-6 and C6-7 with moderate to severe right foraminal narrowing. On 2/23/2015 she felt a sharp pain in her neck while lifting for which she was treated, and, on 9/15/2015, while lifting, she again had sharp neck pains as well as low back pain. In March, 2016, Dr. Thomas Bercherer performed a lumbar laminectomy-discectomy, and, about nine months later, he performed a multi-level, cervical fusion. Creager RTW in a new position. Dr. Berg’s treatment records documented visits every other month since 2010 for chronic low-back pain du to multi-level degenerative disc disease, facet arthropathy, disc herniation at L5-S1, and multi-level spinal and foraminal narrowing. Three days prior to the first injury, Dr. Berg noted increasing cervical, shoulder, and right arm pain despite conservative treatment. He recommended epidural injections and physical therapy. In an IME, Dr. Timir Banjeree diagnosed shoulder strain. Dr. Grossfeld noted pre-existing active cervical and lumbar conditions. She opined Creager’s conditions were not caused by work but were attributable to the natural progression of the pre-existing active conditions of the cervical and lumbar spine. Dr. Bercherer diagnosed cervical spondylosis, lumbar disc herniation, and lumbar stenosis. These conditions were degenerative in nature and aggravated by the work injury in September, 2015. Dr. Bilkey performed an IME and concluded the work incidents caused cervical strain and aggravated Creager’s cervical and lumbar disc disease. He assessed 22% lumbar with 11% pre-exiting active, and 28% cervical with 9% pre-existing active. The ALJ dismissed Creager’s claim, relying upon the records of Dr. Berg, and, that the evidence established that Creager had pre-existing actively symptomatic condition of her lumbar spine and cervical spine prior to the work incidents. She also found the IME of Dr. Grossfeld persuasive and consistent with Dr. Berg’s treatment records. The ALJ also found Creager’s cervical and lumbar conditions to be “impairment ratable” pursuant to Finley. The WCB in affirming held that the determination as to work-relatedness/causation was supported by substantial evidence. Issues: Did the ALJ correctly perform an analysis under Finley? Holding: Yes Reasoning: Creager’s arguments ignore the discretion vested in the ALJ to weigh the evidence and determine witness credibility. The WCB adequately set forth its reasoning in accepting the opinion of the WCB. The ALJ can pick and choose the evidence to be relied on. The COA also disagreed with Creager’s argument that Finley requires an actual numerical impairment rating to establish a pre-existing active condition. Finley plainly states that an underlying pre-existing condition must be symptomatic and impairment ratable immediately prior to the occurrence of the work-related injury. The problem here for Creager is that the ALJ determined that she did not sustain a work-relate injury. An analysis under Finley is premised upon an initial finding of a work-related injury followed by a determination of whether an impairment should be apportioned between the work injury and a pre-existing condition. Here, the ALJ’s threshold determination that Creager failed to prove work-relatedness/causation was dispositive; hence, it was unnecessary for the ALJ to engage in any discussion of pre-existing conditions. Disposition: Affirmed ALJ: Hon. Tanya Pullin COA Panel: Dixon, Kramer, and Lambert

Case Name, Citation, Author, Date Entered: JACOR Broadcasting of Lexington v. Leann True Norton et al; No. 2017-CA-001549; Jones; Rendered 5/3/2019; Not To Be Published. Procedural History: JACOR appeals a WCB opinion which affirmed the ALJ’s determination that Norton’s right knee injury was causally related to a 1997 work-related accident that Norton settled in 1999. Because Norton reserved the right to all reasonably necessary future medical treatment for her work-related injuries as part of the settlement, the ALJ concluded JACOR was responsible for paying for Norton’s past and future treatment for her right knee injury. Facts: On 3/26/1997 Norton sustained multiple injuries in a work-related mva. Jacor, in conjunction with its carrier, Zurich, settled the claim. The Form 110 listed body parts injured as “neck, back, left shoulder, and left knee.” There was no buyout for medical. The agreement was signed by Norton, without counsel, and by Ginny Howard, the carrier’s representative. JACOR continued paying all medical bills, including for the right knee until sometime in 2016, at which time Norton filed a MTR and a MFD. JACOR disputed the claim, arguing it was only responsible for the body parts specifically listed in the Form 110, and that the right knee was not causally related to the mva. Chiropractic treatment for the back was also contested, but that is not on appeal. Following a hearing, the ALJ issued an opinion, finding causation for the right knee in favor of Norton, stating that the only medical evidence submitted was by the Plaintiff, with the treating doctors’ office notes showing complaints of the right knee, and referencing that Norton had “hit both knees against the dashboard.” He noted the medical evidence concerning work-relatedness was “unrefuted.” With regards to the right knee not being specifically included on the Form 110, the ALJ noted the agreement was drafted by the carrier’s adjuster, and not the Plaintiff, and, citing KRS 342.125(7), noted that no admissions in the settlement agreement shall be construed as an admission against the interest of any party. The failure of the 110 to reference the right knee was of no significance. The failure to join argument also failed because no claim was filed. Lastly, the ALJ noted that JACOR never submitted the request for surgery to U/R, nor did it file a MFD. The WCB agreed with the ALJ. Issues: 1) Did KRS 342.270 regarding joinder apply to bar the right knee claim? 2) Did the failure to list exact body parts in the Form 110 that Norton might at some future point need to have treated because of the injury limit her right to medical treatment for the right knee? Holding: 1) No 2) No Reasoning: 1) KRS 342.270 (1) only applies where an application of resolution of injury is filed because the parties “fail to reach an agreement in regard to compensation.” In this case no application was filed because the parties reached an agreement, so KRS 342.270 does not apply. 2) Citing Jo Ann Coal Co. Inc. v. Smith, 492 S.W.2d 192, (Ky. 1973) the Court stated: “Appellant has cited no case, and we know of none, holding that where a claimant has entered into an agreement for compensation predicated on an injury to a specific member of a body he may not reopen and recover compensation for disability caused by secondary involvement of another part of the body resulting from the same accident.” Moreover, the language read in the agreement cannot be used against Norton in a reopening, citing KRS 342.125(7). It should be noted that the COA refused to impose any sanctions under CR 76.12 (8) (c) for failure to file a brief. Also, the COA noted that only medical benefits for the right knee were available to Norton. Disposition: Affirmed ALJ: Douglas Gott, CALJ COA Panel: Clayton, Dixon, and Jones

Case Name, Citation, Author, Date Entered: Danny M. Castle v. East Kentucky Beverage Co., Inc.; WCB No. 199013466; Rechter; Entered 5/3/2019. Procedural History: Castle appeals from an Opinion and Order of ALJ Grant Roark, who, in a MFD, determined continued use of Percocet and Fentanyl is unreasonable and unnecessary. Facts: This is a MFD case in which the continued use of Percocet and Fentanyl is the issue. On a MTR Castle was found PTD on 6/25/2001. In two prior MFDs, these drugs were found to be reasonable and necessary. Castle testified that there was a period when the Fentanyl was decreased, and his back pain increased. The Percocet was increased without control of the pain. He felt the pain would be unbearable if he was denied both Fentanyl and Percocet. Dr. Waldtraut Jedamski performed a U/R and stated current treatment guidelines recommend against the chronic daily use of opioids. He noted Castle was a “high risk, and there should be assessments before the use of opioids.” Current treatment guidelines recommend prescribed opioids not exceed more than 50-100 morphine equivalent dosage (“MED”) and Castle had been on 210 MED. Also, his age greatly increased the chances for morbidity. These drugs were not reasonable or necessary and castle should be weaned. Dr. Lauren Larson of The Pain Treatment Center of the Bluegrass treats Castle for his pain. She had been decreasing Castle’s pain medications according to CDC treatment guidelines, But he barely tolerated decreasing Fentanyl from 75 mcg to 50 mcg. She had reduced his treatment plan, with a goal of “decreased pain, increase daily function,” but noted the current level of medication was not controlling the pain as it was before it was decreased. Dr. Paul Harries performed an IME and found no evidence of a physical disorder requiring high-dose opioids, and concluded there was no reason to continue. Castle should be weaned off the opioids, including Fentanyl, and Percocet was not necessary for the cure or relief of the symptoms relating to the work injury. Dr. Avron Gart performed a U/R and agreed with Dr. Jedamski, and recommended one more refill for weaning purposes. The ALJ agreed with the employer, discussing how the continued use of these drugs were not good for the Plaintiff, and that 20 years of them had not brought relief. Issues: Was there substantial evidence to uphold the ALJ in this MFD when he relied on medical guidelines concerning the use of Percocet and Fentanyl? Holding: Yes Reasoning: The ALJ did not confine his analysis as to whether the considered treatment cured Castle’s condition, rather, he based his determination on whether the opioid medication provided a reasonable benefit, medical opinions concerning long-term use of narcotics, and the potential risks of continued use. The opinions of Drs. Jedamski and Harries were based upon accepted medical guidelines concerning the use of narcotics, and are substantial evidence concerning whether the contested prescriptions are within the type of treatment generally accepted by the medical profession as reasonable. In particular, Dr. Harries explained the understanding of opioids has changed dramatically in recent years. What may have been accepted use in the past may no longer be considered acceptable today. The ALJ was not required to accept Castle’s assertions that the contested medications provide him significant relief. Disposition: Affirmed ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: Barbara Smith v. Bledsoe Coal Co.; No. 2018-CA-001320-WC; Jones; Rendered 5/3/2019; Not To Be Published. Procedural History: Smith appeals from a WCB opinion which affirmed the ALJ dismissal of Smith’s acute and cumulative trauma injury claims, basing her claim that the ALJ’s decision was based on an inaccurate analysis of the evidence, was not in conformity with the WC Act and case law, and base on deliberate misstatements by Dr. Kriss. Facts: Smith worked in and around underground coal mines who last worked for Bledsoe on 12/31/2014. Her application for injury listed a date of injury to a fall injuring her back as 9/11/2014 through 12/31/2014, and later amended her claim for low back injuries due to cumulative trauma from 1984 through 12/31/2014. Her fall on 9/11/2014 was when a step broke, and she twisted and landed on her self-contained self-rescue device. While not missing any work, she did see Dr. Abdul Kader Dahhan, and continued to work without restrictions and no additional medical treatment. In late 2015, she complained of right thigh and knee problems, and was eventually referred to Dr. David Eggers, a neurosurgeon who diagnosed Smith with significant back injuries, related to work. Eggers performed lumbar surgeries on 7/26/2016 and 1/24/2017. Bledsoe’s WC carrier paid for the first, but not the second. Smith saw Dr. David Muffley who diagnosed her with chronic low back pain referred into the right leg after the 9/11/2014 injury, with minimal improvement after 2 surgeries. He assessed 26%, using ROM method (two surgeries), one half to the fall and one half to her cumulative trauma. Arguing the fall did not cause injuries, Bledsoe submitted Dr. Dahhan’s notes, which showed full ROM, and who diagnosed sprains and strains of the ribs. Bledsoe submitted Dr. Kriss who diagnosed Smith as status post L3-4 and L4-5 bilateral laminectomy, medial facetectomies, and foraminotomies. Her hip was responsible for most of her complaints. He incorrectly noted she worked for one and one-half years after the injury rather than 3 and ½ months. None of her pain was attributable to the 9/2014 fall, and no evidence of cumulative injury. He did not disagree with the surgeries, but they were not for any work-related injuries. The ALJ dismissed the claim. Smith did not file within 2 years of 9/11/2014, and Bledsoe had no obligation to notify the DWC because Smith RTW after the injury, and no benefits were paid, nor should they have been. Further, there was insufficient evidence to establish any permanent injuries from the fall, or the need for surgery was occasioned by the years of work in the mines. On appeal, the WCB took issue with the ALJ’s analysis of the statute of limitations issue, and ultimately determined that any error made in the S/L tolling was harmless because the ALJ ultimately dismissed the claims for both acute and cumulative injuries based on the merits of the claim. Issues: Was the WCB correct when it upheld the ALJ’s decision to dismiss the claim based upon the merits of the claim, that is, the ALJ’s conclusion that Smith’s specific and cumulative injuries were not causally related to any work-related injuries, rather than an analysis of the statute of limitations? Holding: Yes Reasoning: Simply, the ALJ was more persuaded by the evidence submitted by Bledsoe, specifically Dr. Kriss’ report and Dr. Dahhan’s treatment note. The ALJ explained that she found Bledsoe’s proof more convincing because Smith did not seek medical treatment for her back injury for a lengthy period following the initial fall and Smith’s last day of work. The ALJ was convinced that had either the fall or the cumulative traumas associated with her work caused Smith’s injury, she would have likely sought treatment earlier. With regard to misstatements made in Dr. Kriss’ report, there was no evidence that they were deliberate or made in bad faith. Fraud means something more than mere mistakes or errors of judgment. Disposition: Affirmed ALJ: Hon. Christina Hajjar

Case Name, Citation, Author, Date Entered: Teco/Perry County Coal v. Paul Feltner; No. 2018-SC-000215-WC; Minton, C.J.; Rendered 6/13/2019; TO BE PUBLISHED. Procedural History: This is a consolidated appeal of three separate appeals in which the main issue was whether the section of KRS 342.7305 violates the equal protection guarantees in the U.S. and Kentucky Constitutions. This section holds that WC Claimants suffering hearing loss may not receive income benefits unless their whole person impairment rating is at least 8%. This is a 4-3 decision with a strong dissent by Lambert. Joining Lambert in the dissent were Keller and Wright. Joining Minton in the majority were Buckingham, Hughes, and VanMeter. Facts: This appeal concerns three cases consolidated on appeal, all of which argued that KRS 342.7305(2) which limits recovery based on impairment rating violates the equal protection clause of the U.S. and Kentucky Constitutions. In essence, does a rational basis exist for treating hearing loss claimants differently from other types of traumatic injury claimants. The relevant facts are limited. Two of the Claimants had a 4% loss, the other 5%. Two of the Claimants had repetitive exposure to loud workplace noise, while the other had a piece of hot slag fall in his ear. All 3 cases challenged the constitutionality of the statute properly in their filings. Issues: Does KRS 342.7305(2) violate the equal protection clauses of the U.S. and Kentucky Constitutions? Holding: No. Reasoning: The Court stated that the rational basis test is to be applied here as it is to be used when “the statute merely affects social or economic policy.” The Court noted the fact that a separate statute was enacted, apart from the traumatic injury statute, to govern workers’ compensation claims for traumatic hearing loss claimants. No doubt exists that hearing-loss claimants who have less than an 8% permanent impairment rating are treated differently than all other traumatic injury claimants. The question is whether a rational basis exists for the 8% threshold that hearing loss claimants must meet to obtain PPD income benefits. The SCT found that a rational basis does exist. The Guides do not provide for a correction for age- related hearing loss when calculating an impairment rating, and no subtraction of non-occupational hearing loss occurs during a URE. A rational basis exists for the 8% threshold as a means to ensure that liability for normal, non-occupational hearing loss does not fall upon employers. Also, employees would become less employable in any industry with a risk of noise exposure because as employees age their increased risk for age-related hearing loss would impose liability on a company when an employee has merely a 1% rating, thus creating a large incentive to not hire older employees. Disposition: Affirmed in Part and Vacated in Part ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: Robert Lee Maxie v. L.M. Wright Trucking, Inc.; WCB No. 201800176 & 201800130; Rechter; Entered 5/31/2019. Procedural History: Maxie appeal from an order dismissing his claim for a cumulative trauma injury to his low back. Facts: This appeal deals primarily with the issue of substantial evidence, which we will not go into. We will however discuss the primary focus of Maxie’s appeal, the report of Dr. Daniel Primm. Maxie was a heavy equipment operator for many years, and filed his claim alleging cumulative trauma injury to his low back. Dr. Primm’s IME was conducted on 4/13/2018. He reviewed the 2015 MRI as well as Maxie’s treatment records and then diagnosed mild mechanical low back pain with very early degenerative changes at L5-S1. He opined those changes were consistent with Maxie’s age, and, there was no evidence to conclude Maxie’s low back symptoms were related to his work injuries. In an addendum, he disputed a conclusion Maxie had suffered a cervical or lumbar disc herniation, and reiterated his opinion that Maxie’s complaints are unrelated to his work activities. Even though Primm stated Maxie’s age wrong in his report (51 instead of 48), the ALJ was persuaded by his opinion that the MRI showed normal, age-related degeneration. The ALJ relied upon Dr. Primm’s opinion that Maxie’s lumbar condition was not caused by his work. Issues: Was Dr. Primm’s examination conducted in accordance with the AMA Guides? Holding: Yes Reasoning: The ALJ relied upon Dr. Primm’s opinion as to causation. To the extent Maxie identified errors or bias in Dr. Primm’s evaluation (no review of the entire medical history, failure to use required instruments to record lumbar ROM, mistakenly implied nerve root compression or disc herniation were required to assess impairment, erroneously referred to Dr. Guberman as a cardiologist, and concluded the MRI showed degeneration for a 51 year old man when Maxie was 48), these arguments go to the weight afforded the opinion not to its reliability. Disposition: Affirmed ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: Oxmoor Auto Group v. Stephen Meeks; WCB No. 201690676; Stivers; Entered 3/8/2019. Procedural History: Oxmoor appeals from an Opinion and Award of TTD, PTD, and medical benefits for a work-related traumatic brain injury. Facts: Meeks alleged work-related injuries to his head, knees, and back on 11/15/2015 when he slipped in the bathroom at work, hitting his head on the urinal. Following time off from his injury, he RTW at Oxmoor until his termination in February, 2016, allegedly for a poor attitude, which he denied. Meeks had had a successful month selling cars in January. Meeks alleged current cognitive problems including memory loss and daily headaches. Prior to the injury he was treated for depression and anxiety. Meeks’ daughter testified concerning her Father’s memory loss, lack of energy, and change in disposition following the injury. Attached to the Form 101 was a report and Psychological Assessment of Dr. Steven Simon. His diagnoses were: 1) Mild neurocognitive disorder due to traumatic brain injury; 2) Unspecified Anxiety Disorder; and 3) Unspecified Depressive Disorder. He opined Meeks had an upper range Class 3 psychiatric impairment in the area of affect, thinking, and general cognitive functioning, rated collectively as a 50% degree of impairment with 10% as pre-existing in the form of a pre-existing anxiety disorder, and, thus, a 40% degree of impairment directly attributable to the traumatic brain injury. Meeks filed the IME of Dr. Robert Byrd. He diagnosed: 1) left knee injury; 2) Injury to the lumbar spine with radicular complaints; 3) Traumatic brain injury; 4) Post concussive headaches. Meeks was at MMI for the brain injury, and Byrd rated him at 50%. The testimony of Dr. Bradley Burton is also discussed. Which party who submitted Dr. Burton’s proof is not identified, however it appears that Dr. Burton may have been a treating physician. His notes and testimony revealed Meeks continued to demonstrate areas of neurocognitive deficit, and he would benefit from the services of a “life planner” to enhance his level of functioning. He described Meeks as being “very dysfunctional.” Meeks’ areas of neurocognitive deficit were consistent with the impact of a traumatic brain injury. In his opinion, the ALJ found the slip and fall to be work-related. The ALJ found Meeks to be PTD, opining that he would be unlikely to be able to provide services to another in return for remuneration on a regular and sustained basis in a competitive economy. Having found MMI on 9/10/2016, the ALJ ordered TTD from the date of Meeks’ termination, 2/2/2016, thru 9/10/2016. Credit was ordered for any unemployment benefits received. Issues: 1) Was the reliance of Dr. Byrd on the Fifth Edition, instead of the Second Edition, of the AMA Guides proper? 2) Did the awards of TTD and PTD have appropriate starting dates? Holding: 1) Yes 2) No Reasoning: 1) The ALJ is not required to perform a thorough analysis of the impairment rating by a physician, or to recalculate based on his own judgment. He is entitled to rely upon a physician’s unique expertise. As long as sufficient information is contained within a medical experts testimony from which an ALJ can determine how the expert derived the rating, the ALJ is free to adopt that rating. The ALJ could properly use the Fifth Edition, as the table he refers to does not have a corresponding rating in the Second Edition, the ALJ could reasonably infer Dr. Byrd consulted the Second Edition in order to derive his 50%. 2) Oxmoor argued that starting the award of PTD on 11/15/2015, the date of the injury, was error since Meeks RTW without restrictions until terminated on 2/2/2016. Also, it argued that the award of PTD should begin on 9/10/2016, the date the ALJ found MMI. The ALJ had also awarded TTD from 2/2/2016, the date of his job termination, thru 9/10/2016, the date of MMI. The WCB held that under the set of facts in this case that Meeks was not entitled to TTD for the period awarded, and that part of the award was vacated. On remand, the ALJ was directed to determine if Meeks is entitled to TTD from the date of injury thru his RTW date at Oxmoor, as the record reflects that Meeks was off work for this period. On remand, the ALJ must also determine the appropriate date to begin PTD benefits. To begin these benefits on the date of injury, the ALJ must make a determination as to whether Meeks had RTW because of compassion of the employer. In the absence of this finding, the ALJ cannot make a finding that PTD begins the date of injury, and the award of PTD benefits must commence sometime after his termination by Oxmoor. As a side note, the evidence itself was affirmed as substantial in upholding the award. Disposition: Affirmed in Part, Vacated in Part, & Remanded ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Bluegrass.Org v. Lisa Higgins; No. 2018-CA-001262-WC; Combs; Rendered 6/7/2019; Not To Be Published. Procedural History: Bluegrass appeals from an opinion of the WCB which reversed a decision of the ALJ dismissing. The WCB ruled that the going-and-coming rule does not apply as a matter of law and directed the ALJ on remand to determine whether the Claimant’s accident was attributable to an unexplained or idiopathic fall or a work-related incident. Facts: Higgins filed her claim alleging a 6/7/2017 injury to her left ankle and right knee. Higgins was a case manager working with adult clients. She spent most of her time in the field, and the balance working from home. It was not necessary to get approval before working at home, and she used a computer program to log in and out of when working at home. On the morning of injury Higgins began working away from home, but returned home for lunch and to pick up a form. She had clocked out for lunch, and then clocked back in, did some computer work, and called a client. As she was finishing the conversation, she arose, took a couple steps and fell, still with the phone in her hand. She was getting up to get her purse and leave to go pick up the form, still on the clock, when she rolled her ankle. The ALJ ruled that Higgins did not sustain an injury in the course and scope of her employment as the injury did not occur on the operating premises of the employer and the service to the employer exception of the going and coming rule does not apply. On appeal to the WCB, the WCB reversed, finding the going and coming rule did not apply as a matter of law in this case, reversed the ALJ, and on remand directed the ALJ to determine whether the accident occurred due to an unexplained or idiopathic fall or work-related incident. It did not direct any particular determination. Issues: Was this fall at home, while on the employer’s clock, and unexplained, work-related as an exception to the going and coming rule? Holding: No Reasoning: The WCB ruled that going and coming was not the issue here, and remanded for a determination based on whether this was an idiopathic or unexplained fall. The COA affirms. Higgins was not “in transit” nor was she in the process of leaving her home when the injury occurred as argued by Bluegrass. Rather, she was engaged in work activity. The issue, as the WCB determined- is the nature of Higgins’ fall. Disposition: Affirmed ALJ: Hon. Christina Hajjar COA Panel: Clayton, C.J., Combs, and K. Thompson

Case Name, Citation, Author, Date Entered: Floyd County Board of Education v. James Slone; No. 2018-CA-000385-WC; Maze; Entered 5/24/2019; Not To Be Published. Procedural History: Floyd County sought review of a WCB decision which affirmed in part, reversed in part, and remanded an award of benefits by the ALJ. Facts: Floyd was employed in maintenance and in September 2015 while removing cheerleading mats, felt a zipping sensation and pain in the lower back. After seeing his family physician, who removed him from work, he was referred to Dr. Phillip Tibbs who diagnosed radiating low back pain and annular tear after an MRI. Slone testified he had trouble walking more than 5 minutes at a time, and could only lift 4-5 pounds. He admitted to previous back pain in 2013 that had resolved prior to the 2015 workplace injury. Slone submitted Dr. James Owen who diagnosedL5-S1 right-sided radiculopathy, stated the complaints were the result of the injury, and assigned 11%. At his deposition he admitted that he assigned the 11% and it was not consistent with the Guides since he found Slone was not yet at MMI. Dr. David Jenkinson evaluated Slone for Floyd County. He believed the annular tears were actually annular fissures, which had a non-traumatic origin. Seeing no difference between 2014 1nd 2015 MRIs he found no anatomical basis for the complaints and concluded Slone was faking on examination. He assigned 0% and found MMI as of April 5, 2016. Dr. Henry Tutt also examined Slone for Floyd County, finding no evidence of radiculopathy, Slone was exaggerating, and at most had a strained back. He assigned 0%. The ALJ, finding Slone a credible witness, found a work injury, and, relying on Dr. Owen’s testimony, awarded 11%, further finding MMI on the date of the exam, 6/27/2016. On appeal, the WCB held the ALJ erred by relying on Dr. Owen’s impairment rating, vacating the 11% and the award of TTD and PPD. Owen’s 11% was assessed prior to MMI, however, Owen’s testimony could be rehabilitated on remand because other physicians had given an opinion on the date Slone reached MMI. For instance, if MMI was to be based on Dr. Jenkinson, then that would be before Owen, then the 11% was good since it was after MMI. Issues: Did the WCB correctly find that Dr. Owen’s impairment rating could be rehabilitated on remand? Holding: Yes Reasoning: The WCB cited correctly Copar, Inc. v. Rogers, 127 S.W.3rd 554 (Ky. 2003) as being dispositive. In Copar, a physician accepted a 15% rating from a physician who had not yet found the Plaintiff at MMI. A second physician assigned 5% and found MMI. The Supreme Court found substantial evidence as the ALJ may pick and choose evidence. The ALJ was free to rely on parts of each physician’s testimony in rendering his decision. Here, the ALJ’s findings were consistent with Copar. Disposition: Affirmed ALJ: Hon. Jane Rice Williams COA Panel: Combs, Dixon, and Maze

Case Name, Citation, Author, Date Entered: Ford Motor Company v. Deborah Duckworth; No. 2018-CA-001871-WC; Kramer; Rendered 5/24/2019; Not To Be Published. Procedural History: Ford appeals from an ALJ award of WC benefits determining that Duckworth sustained two cumulative trauma injuries (one to her neck and the other to her lower back). The WCB affirmed. Ford’s arguments on appeal are narrowly confined to the ALJ’s authority to determine the manifestation date for Duckworth’s cumulative trauma injuries. It does not challenge the sufficiency of the evidence underlying the decision. Facts: The facts are limited. On 11/8/07, Duckworth visited Ford Medical to report neck pain. He treated during 2008 and 2009 by Dr. Gregory Ornella. In 2010 she treated with Ford for lower back pain several times, and was referred to Dr. Rodney Chou. She treated repeatedly with Ford during 2011 to 2012. On 4/12/12 she was struck on the top of the head by a piece of equipment, and on 10/2/12 she fella t work worsening her neck. Cervical spine surgery was performed on 4/9/13 and lumbar spine surgery performed on 11/29/13. Duckworth filed a 101 on 5/21/2013 alleging manifestation of head and back injuries due to cumulative trauma on 11/8/07. Ford’s special answer asserted that Duckworth’s claims based on a manifestation date of 11/8/07 were barred by the applicable statute of limitations. The BRC identified 5 injury dates as: “11/8/07; 8/12/12; 10/2/12; 1/7/13; 9/3/13.” The order also identified that the dates of injuries were “at issue,” and also identified “date of injury” and “statute of limitations” as “contested issues.” Duckworth, in briefing the issue, argued the date of manifestation was11/8/07, when she reported it to Ford medical, and, because she received TTD for a period ending 8/5/2011, and she filed her 101 on 5/30/2013, she was within the time limits. Ford maintained her time frame for filing expired 11/7/2009, arguing when she reported the condition in 11/2007, she reported to Ford it was work-related. The ALJ supported Duckworth, finding that his self-diagnosis and reporting did not trigger her notice or manifestation date, and found 3/22/2010 as the manifestation date for the neck-from Dr. Chou’s records; and 10/10/2011 as the date of manifestation and notice for the lumbar from the records of Ford. Ford’s appeal to the WCB focused on the manifestation date of the injuries, arguing for the first time, that the prior BRC order, and the principles of due process, had effectively prohibited the ALJ from finding that Duckworth’s injuries had manifested on 3/22/2010, 10/10/2011, or any date other than 11/8/2007. The WCB disagreed, finding that no such stipulation had occurred since the parties had twice identified “date of injury” as “at issue.” The parties had not stipulated dates of injuries nor did they stipulate a date of manifestation for notice and statute of limitation issues. The date of manifestation is for the ALJ to decide. No due process was denied as Ford had filed a special answer, was aware of the issue, and had specifically raised this precise argument in its special answer. Issues: Did the ALJ have the authority to determine the manifestation date of cumulative trauma according to the law and the evidence presented rather than according to the litigants’ understanding of the legal term “manifestation” where the BRC order never stipulated the manifestation date, and listed it as “at issue” and “contested?” Holding: Yes Reasoning: ALJs, workers’ compensation board members, judges and justices are presumed to know the law and are charged with its proper application. For a correct and fair decision, the courts have to assume a full share of responsibility for seeing that a controversy is correctly determined. An appellate court should resolve cases on their merits, aided but not necessarily restricted to the arguments of counsel. Applicable legal authority is not evidence and can be resorted to at any stage of the proceedings whether cited by the litigants or simply applied, sua sponte, by the adjudicators. Nor is legal research a matter of judicial notice, for the issue is one of law, not evidence. See First National Bank of Louisville v. Progressive Corp., 517 S. W. 2d 226 (1974); Burton v. Foster Wheeler Corp., 72 S.W. 3rd 925 (Ky. 2002) Further, Ford itself had argued and emphasized to the ALJ that no physician had expressed an opinion to Duckworth on 11/8/2007, that she was suffering from work-related, cumulative trauma injury. Disposition: Affirmed ALJ: Hon. John McCracken. COA Panel: Acree, Goodwine, and Kramer

Case Name, Citation, Author, Date Entered: Viwin Tech Windows & Doors, Inc. v. Mark Ivey; No. 2019-CA-000106-WC; Combs; Rendered 5/31/2009; Not To Be Published. Procedural History: The ALJ found Ivey had a work-related low back claim which the WCB upheld on appeal. The employer argues that Ivey had a pre-existing impairment which should have been carved out from his award of PPD. Facts: The discussion of the record is limited. Ivey alleged a low back injury which occurred on 6/23/2015 in the course and scope of his employment. Ivey had two prior low back surgeries, one in 2004, and the other in 2013, both performed by Dr. Davies. Neither were work-related. On 6/23/2015 Ivey injured his back, after working at Viwin since 9/2012. He came under the care of Dr. Arendall who performed additional surgeries. The ALJ found Dr. Arendall and Dr. Ballard’s opinions most credible. Dr. Arendall had stated the lifting incident caused the recurrent herniation and the pre-existing condition was aroused into disabling reality, highlighting that Ivey had received no treatment since 2012. Plus, his surgery confirmed the herniated disc noted on the MRI, and noted a “new onset” of spondylolisthesis which was causing stenosis. He assigned 28%, all to the injury. Dr. Ballard, who conducted an IME for Viwin agreed that Ivey had a specific injury. Dr. Thomas O’Brien performed an employer IME assigning a 12%, however, it was all pre-existing. The ALJ acknowledged Ivey’s two prior surgeries, and found the pre-existing back condition to be impairment ratable, however, since Ivey had received no treatment for three years, worked full-time performing a heavy lifting job on a daily basis, without problems or missing any work, without any restrictions, he was asymptomatic, and Viwin had failed to prove that the prior condition was symptomatic prior to the injury. The WCB affirmed the ALJ, finding the ALJ had performed the proper analysis under Finley v. DBM Technologies. Issues: Did the evidence compel a finding that Ivey had a permanent pre-existing impairment that must be carved out of his PPD award? Holding: No. Reasoning: The evidence was not so overwhelming as to compel a finding in Viwin’s favor. The ALJ properly analyzed the case under Finley, and the WCB properly affirmed. This case is a classic example of problems and issues that have arisen under Finley. Despite the fact of two prior low back injuries and the certainty of a ratable condition, since the Claimant was “asymptomatic” there was no prior active to carve out. The Plaintiff got the benefit of the entire rating. Disposition: Affirmed ALJ: Hon. Monica Rice Smith COA Panel: Clayton C.J., Combs, and Kramer

Case Name, Citation, Author, Date Entered: WHAS TV v. Bryan Derby; WCB No. 201560076; Rechter; Entered 5/10/2019. Procedural History: WHAS appeals from an award of PPD for work-related cervical and shoulder injuries. Facts: Derby, a field cameraman, alleges injuries to his neck, right shoulder, back and right ankle manifesting on 9/15/2015. His job required him to carry equipment and accessories on a nearly constant basis. The camera itself weighed 30 pounds and the tripod 25 pounds. When outdoors he often had to run across uneven ground, carrying his equipment. About 70% of his time was spent holding the camera on his shoulder. He experienced severe pain in his neck and right shoulder on 9/15 while carrying his equipment at a hurried pace. He had experienced similar pain, but it always subsided within a day or so. Derby saw his family physician, Dr. Dhamy Sivamohan, who diagnosed cervical radiculopathy due to degenerative joint disease, and took him off work in October. Dr. Ty Richardson saw Derby on 11/24 after he had been off work for 10 weeks with no improvement. A MRI of the right shoulder revealed impingement with partial thickness rotator cuff tear. The neck was worsening with numbness and tingling in the right forearm which Dr. Richardson diagnosed as cervical stenosis with radiculopathy and a referral to a spine physician. Derby saw Dr. Venu Vemuri who recommended cervical fusion, noting severe foraminal stenosis at C5-6 due to disc osteophyte complex. Dr. Warren Bilkey performed an IME and diagnosed a 9/15/2015 work injury, cervical strain, aggravation of cervical spine degenerative disc disease, cervical radiculopathy, and right shoulder aggravation of degenerative joint disease. There was no prior active impairment, and he assigned a combined 19% for the neck and shoulder. He did not believe that Derby had an impairment ratable condition prior to 9/15/2015. Dr. Michael best performed an IME and recommended against cervical fusion, found no rotator cuff tear, suspected the natural aging process, found no work-related injuries, and assigned 0% for the cervical. Dr. Michael Moskal performed an IME. Derby’s problems were caused by personal factors, such as age, and unrelated to his work. An interlocutory order determining the right shoulder and cervical injuries were work-related was entered, and medical benefits were awarded, including the cervical fusion recommended by Dr. Vemuri. When right shoulder pain and weakness continued, Dr. Ty Richardson performed a right shoulder arthroscopy on 4/10/2017. Following the surgeries Dr. Barefoot assigned a 37% WPI, 27% for the cervical under DRE II, and 14% for the shoulder using ROM. 100% was work-related. Dr. Moskal performed a second IME, opined the cervical was not work-related. Dr. Richardson found the shoulder and cervical were work-related. The ALJ determined that the cervical and the shoulder were work-related, beginning on 9/15/2015, relying on Drs. Bilkey, Barefoot, and Richardson. Issues: Did the ALJ sufficiently identify evidence supporting his decision, and did the Defendant fail to prove any pre-existing active impairment? Holding: Yes Reasoning: The record shows that Dr. Bilkey was well aware of all symptoms, and specifically disagreed with Drs. Moskal and Best. He unequivocally stated Derby’s complaints were related to his work, and that there was no active impairment. Dr. Bilkey also appeared to have a sufficient understanding of Derby’s job duties. The employer failed in its burden to prove a pre-existing active condition. Disposition: Affirmed ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author, Date Entered: Spurlock Mining LLC v. Curtis Gayheart; WCB No. 201800621 & 201800620; Alvey; Entered 5/10/2019. Procedural History: Spurlock appeals from the Opinion and Award wherein the ALJ found Gayheart provided proper notice of his 1/18/2017 and 9/27/2017 work accidents. The ALJ awarded PPD, TTD, and medicals for the September injury, and temporary medical benefits limited to those bills already incurred due to the January injury. Facts: Gayheart filed separate Form 101s alleging injuries on 1/18/17 and 9/27/17. He alleges he told his supervisor, David Coleman, of his injuries. Spurlock contests both injuries. Issues on appeal affect primarily the 9/27/17 injury. Gayheart was jarred by a large rock dumped on his truck on 1/18/17, causing him to experience pain in his mid-back, neck, and left shoulder. He notified Coleman, but declined to fill out a report. Gayheart sought treatment, missed a couple days, and returned to regular job duties. The 9/27/17 injury also occurred loading rock. After, he was temporarily unable to move, however, completed his shift that evening. He last worked on 10/2/17, and called Coleman to tell him. Gayheart testified his wife also called Coleman that day. Gayheart claimed he was losing depth perception and vision, as well as suffering from vertigo. Coleman testified recalling that Gayheart told him of feeling dizzy near the end of his 10/2/17 shift, and Gayheart did not tell him of the rock dropping roughly before 10/2/17. He also recalled talking to Gayheart’s wife, but work injuries were never discussed in any conversation. Gayheart first saw Dr. Ratliff, his family physician, for his 9/27/17 injury on 10/4/17, and continued throughout 2017 for dizziness, headaches, thoracic back pain and cervical degenerative joint disease. He referred Gayheart to an ENT, a neurologist and physical therapy. None of his records reference a 9/27/17 injury. Spurlock filed the treatment records of Dr. Chandrashekar Krishnaswamy, but there was no mention of a 9/27/17 injury. Records from Dr. Michael Cecil, ENT, were filed. Dr. Cecil referenced the 2 injuries at work. He stated however that the injuries were due to work. Gayheart filed Dr. Arthur Hughes report, and his deposition. He related the problems to the 9/2017 injury and assessed 15% for the neck injury and 30% for the vestibular dysfunction. He had not reached MMI for either condition and did not retain the capacity to return to work. Spurlock filed Dr. David Muffley and diagnosed vestibular trauma due to the 9/27/17 injury, and resolved cervical strain due to the 1/18/17 injury. Gayheart was at MMI for both injuries. He assigned 10% for the vestibular injury due to the 9/27/17 injury, and 0% for the cervical injury. The work-relatedness of the vestibular injury was based solely on Gayheart’s history. The ALJ found that Gayheart provided due and timely notice of the January 18, 2017 injury, as well as the 9/27/2017 injury. He then relied on Dr. Muffley and awarded 0% for the cervical and 10% for the vestibular. The January injury was found to be temporary in nature. Issues: Did Gayheart provide due and timely notice given of the 9/27/2017 injury? Holding: Yes Reasoning: Both Gayheart and his wife testified they told Coleman about a work injury, which Coleman denied. While Gayheart’s hearing testimony was not consistent with his deposition testimony, it was in the ALJ’s discretion to rely upon the hearing testimony. Further, it was proper for the ALJ to rely on Dr. Muffley’s testimony determining causation/work-relatedness. Disposition: Affirming ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Richie Ward v. Wright Concrete & Construction; WCB No. 201583544; Rechter; Entered 3/11/2019. Procedural History: Ward appeals from an award wherein the ALJ found that he retained the physical capacity to return to the type of work performed at the time of the injury. Facts: This review will deal with Ward’s ability to return to his prior position at Wright only. Even though it is a substantial evidence case, it is somewhat interesting as it deals with a head injury and psychological injuries. Ward was injured on 5/12/2015 when a hydraulic hose blew off a drill and struck him in the head and face. He was eventually treated by Dr. Jay Narola for treatment of a traumatic brain injury, and diagnosed (relevant here) with major depressive disorder; chronic PTSD; mild to moderate neurocognitive disorder; and chronic brain injury. After several months of treatment, and failed drug screenings, Narola told Ward he could no longer treat him due to repeated non-compliance. Upon discharge Narola thought Ward was malingering and “presenting himself in the worst possible light.” Dr. Narola did not provide an opinion as to Ward’s capacity to return to his pre-injury work. Dr. Timothy Allen performed an IPE who had assessed 25% for psychiatric causes and 10% due to mental changes, both due to the injury, but both prior to Dr. Narola’s treatment. After Narola’s treatment ended, Dr. Allen changed his rating to 10%, half due to the injury, and half due to exacerbation due to marijuana and alcohol, and non-compliance with medications. He did not express an opinion on Ward’s ability to work. Dr. David Shraberg performed a neuropsychiatric examination and concluded there was residual impairment from the traumatic brain injury. His testing also revealed strong evidence of symptom magnification. He assessed 10% and stated his primary neurobehavioral disorder was stable, but to some extent impair him from doing the type of work he had done over his lifetime. Shraberg later amended his position to find no neuropsychiatric impairment nor any more required treatment. He further opined that avoiding drugs that affect concentration and mood (such as marijuana) would further improve his overall mental acuity and functional ability to return to his usual and customary employment neuro-psychiatrically. Ward testified he had headaches, vertigo, and nightmares, couldn’t drive, and could not climb a ladder. Medication caused lethargy and he had trouble focusing. Wright submitted video showing Ward climbing a ladder multiple times over 3 days, and carrying stovepipe. The ALJ, relying on Drs. Allen, Narola, and Shraberg, awarded 10%, without multipliers. Issues: Was there evidence to support the ALJ’s findings that Ward was magnifying his symptoms and to deny the application of any multipliers? Holding: Yes Reasoning: This is a decision for the ALJ. He may consider the Claimant’s testimony, but is not bound by it. Here there were 3 doctors who thought there was symptom magnification, in addition to surveillance video, and neuropsychiatric testing. In addition, Ward was less than credible. The ALJ acted within her discretion. None of these doctors would have prohibited Ward from his former job. Disposition: Affirmed ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Ready Electric v. Monica Carter; WCB No. 201790702; Stivers; Entered 3/15/2019. Procedural History: Ready appeals from a finding that Carter sustained a “temporary harmful change due to toxic exposure” while in the employ of Ready. TTD benefits, enhanced by 30% for a safety violation were awarded. Facts: Carter filed a claim alleging she was affected by a disease rising out of and in the course of her employment with Ready Electric, identifying the occupational disease as mold exposure. She also claimed a safety violation alleging Ready did not provide her with a respirator or basic advisory information on respirators to her despite having her work in an area infested with mold. Carter’s supervisor was Nance, who, carter testified, thought safety was a waste of time. Carter reported to the company safety coordinator complaining about the type of masks the employees were wearing, and was told these were dust masks, and the employees should have been wearing respirators. She had been issued an extra-large M95 dust mask which did not fit properly and did not provide good protection. Carter was the supervisor for 4 Ready employees at St. Mary’s. She identified problems in the East Wing, where she immediately recognized a gross smell upon entering the construction area that was closed off to the hospital and had walls covered with mold. She was not provided with a safety mask because this was supposed to be a walkthrough, lasting only a short time. She immediately became symptomatic. She reported this. When she returned, she was provided with a mask that St. Mary’s suggested she wear. She spent all day in the wing with the mask, opening windows and every half-hour taking a 15 minute break. Her eyes burned badly. That evening she noticed swelling in her lymph nodes in her groin, as well as nausea and headaches. She worked again the next day, when her nodes were swollen to the size of golf balls and she went to Clark Memorial Hospital. Her symptoms increased and persisted. She advised hospital personnel about the mold exposure. There was no requirement for wearing a full body suit to do the work performed by Carter in the KOSHA regulations or the cited violation. When she returned to work, abatement crews had been there, and action was being taken on the mold issue. They had not been present when she left just a few days previous. She advised she would not return to work there, and was told by a representative that the hospital was shutting down the project and no one would be allowed in the area. Carter lost 33 pounds during the project, and could not keep food down. She uses an inhaler when around fumes, has loss of energy, sleeps with oxygen, and performs nasal rinses daily. She has not worked for Ready since 3/3/2017. The ALJ ruled in favor of Carter, relying on the university evaluator, and awarded temporary benefits in the form of TTD and medicals. The ALJ further enhanced benefits by 30% finding Ready had committed a safety violation under the general duty provision. Issues: 1) Was the testimony of Dr. Rosenblum sufficient for the ALJ to make a finding of a temporary injury? 2) Did the ALJ shift the burden of proof to Ready Electric by stating Carter’s testimony was unrebutted? 3) Were the findings of the ALJ in finding a safety violation, and thus enhancing benefits by 30%, sufficient for review? Holding: 1) Yes 2) No 3) No Reasoning: 1) Dr. Rosenblum testimony made it clear that he believed Carter had sustained an occupational disease, albeit temporary in nature. He summarized prior conditions of Carter, and possible reactions as a result to the exposure, and concluded this was a temporary injury. There was no objective data of any significant injury or residual impairment. The ALJ was free to rely upon Dr. Rosenblum’s diagnosis while simultaneously rejecting his answer that the disease was not causally related to Carter’s work environment. 2) The ALJ simply found Carter to be a strong and credible witness, and her testimony regarding the exposures, her illness, and follow-up treatment was believable. Her testimony was supported by testing, the KOSHA investigation, as well as St. Mary’s action in shutting down the project. Further, the testing and medical evidence constituted substantial evidence supporting the ALJ’s opinion. In particular, the testing by RealTime Laboratories revealed Carter had detectable amounts of mycotoxins. 3) The WCB agreed with the ALJ’s findings regarding the first 3 prongs necessary in the test for finding a violation of the “general duty” statute. The problem was the finding concerning the 4th prong. The ALJ concluded that the full use of the full body protection did not occur in a timely fashion. There was no mention by KOSHA that the donning of full body protection was required in order to eliminate or fully remove the hazard. The KOSHA records indicate that the employees were not trained on the use and how to properly don and use the respiratory protection provided by the employer. Further, there is no reference in any of the evidence addressing the need for Ready’s employees to wear full protective gear, nor is there any such reference in the KOSHA reports. The matter was remanded for a finding that Ready did not commit a safety violation meriting a 30% enhancement. Carter’s testimony revealed that St. Mary’s dictated the safety equipment to be worn, not Ready. In the ALJ’s analysis, she must bear in mind Carter acknowledged St. Mary’s dictated the safety equipment to be used by Ready in performing the job. Disposition: Affirmed in Part, Vacated in Part, and Remanded ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author, Date Entered: Kevin Cardwell v. McLean County Fiscal Court; No. 2019-CA-000081-WC; Thompson, L.; Rendered 5/17/2019; Not To Be Published. Procedural History: Cardwell appeals from an opinion of the WCB which affirmed the determination by the ALJ that Cardwell was not entitled to the safety penalty enhanced benefits found in KRS 342.165. Facts: Cardwell was a laborer installing a drainage pipe. A backhoe was being used. Cardwell was standing at the bottom of a ditch. The pipes were supported by the backhoe. The operator repositioned himself inside the cab of the backhoe, and when he moved, his sleeve got caught on the controls, causing the backhoe to drop pipes onto Cardwell, causing significant injuries. Cardwell sought enhanced benefits under KRS 342.165, arguing that he was injured due to the failure to use a lockout button located inside the cab of the backhoe, which, had it been pushed would not allow the backhoe to move, and would have prevented his injury. Before the ALJ, Cardwell argued the general duty provision for failure to use the lockout button, and to generally hold safety meetings was a violation of KRS 338.031(1). The ALJ ruled there was no intentional failure to follow the general duty provision, and this was at most, inadvertent negligence because the operator was experienced and did not intend to injure Cardwell. On appeal to the WCB, Cardwell again argued the general duty provision, and now argued violation of two OSHA regulations. The WCB affirmed on the general duty, and held the argument for the OSHA violations had not been preserved. Issues: 1) Was the issue of the employer’s violation of OSHA regulations properly reserved for review? 2) Did the finding that the general duty clause was violated require the enhanced benefits? Holding: 1) No 2) No Reasoning: 1) The issue was not presented to the ALJ, therefore it is not preserved. The failure to raise the issue before the ALJ precludes the assertion of that issue in an action for judicial review. 2) All four factors of the general duty provision were met. While the violation of the safety statute can imply intent, not all violations warrant a safety penalty benefit enhancement. The ALJ, after weighing all factors, found lack of intent. The ALJ and WCB were based on substantial evidence, and the evidence in Cardwell’s favor is not so overwhelming as to compel a finding in his favor. Disposition: Affirmed ALJ: Hon. Roland Case COA Panel: Acree, Nickell, and L. Thompson

Case Name, Citation, Author, Date Entered: Jacob Herald v. North American Stainless; WCB No. 201579652; Stivers; Entered 5/17/2019. Procedural History: Herald appeals from the 2/11/2019, Opinion and Order of the CALJ which sustained Herald’s 12/7/18, MTR to the extent he clarified that the 15% decrease in income benefits specified in KRS 342.165(1) applies to the TTD benefits paid to Herald from the date of injury through 2/17/2017, the date of MMI. The CALJ also overruled Herald’s claim that Stainless is not entitled to a credit. In the same order, on his own motion, the CALJ amended the 8/25/2018, Opinion, Award, and Order of ALJ Pullin. Facts: Because of the specific issues, the WCB did not discuss the medical testimony, nor much of the deposition and hearing testimony. A Form 110 Settlement Agreement was entered on 10/20/2016, which settled the vocational rehabilitation portion of this claim for a 6/19/2015 left hand de-gloving injury with amputation of left fingers. Herald’s hand got caught in equipment, and he was still undergoing treatment at the time of the settlement. The Form 101 was filed on 10/9/2017. Both Herald and Stainless filed Form SVC alleging safety violations. In the 8/25/2018 Award, the ALJ found PTD and awarded PTD from date of injury, found Herald had committed a safety violation, and reduced the benefits by 15%, commencing the date of injury. The ALJ, in her introduction, referenced the voluntary payment of TTD, but did not reflect this in her order and award. Importantly, neither party filed a petition for reconsideration nor an appeal to the WCB. On 12/7/2018, Herald filed a MTR alleging “mistake” and requesting the ALJ to clarify the 8/18 award to reflect: (1) the 15% reduction does not apply to reduce the TTD benefits which were paid over three years; and, (2) there is no legal basis for NAS to reduce the TTD previously paid to Herald, or to reduce the amount of PTD benefits owed to Herald pursuant to the Award. In tendering a check to bring the Plaintiff’s benefits current, (from the last payment of TTD on 2/17/17) the Defendant took credit for the overpayment of TTD, since PTD was awarded at $650.99 per week but TTD benefits had been paid at $765.87 per week. What was disputed was the Defendant’s reduction of that sum by $10,667.94, the difference between the total it paid in TTD for 87 weeks and the amount it claims it owed given the ALJ’s imposition of the 15% safety penalty against weekly benefits. The CALJ ruled that the Defendant properly took credit for overpayment of TTD. He also overruled Herald’s claim that the Defendant was not entitled to the credit Issues: 1) Did the failure of the employer to list the issue of a credit for overpayment of TTD benefits as a contested issue at the BRC bar it from asserting it post-award? 2) Does the 15% reduction in benefits for a safety violation apply to TTD benefits? Holding: 1) No 2) Yes Reasoning: 1) The reduction in benefits could not have occurred until thee ALJ determined a reduction was required by Herald’s conduct. Since both parties listed safety violation as an issue, one could reasonably expect that if either party was successful there would be an increase or decrease in benefits. Thus, the first time the deduction could be allowed would be after the rendition of the award. Stainless properly applied the reduction to the award. The WCB pointed out that Herald failed to file a petition for reconsideration or an appeal from that original decision. 2) Herald argued a difference in TTD from PPD and PTD, suggesting that TTD served the purpose of being a “wage” while the employee was unable to work, and, not compensation for an injury or a disability, as PPD and PTD are compensation for permanent injuries. The WCB ruled that the statute makes no distinction between temporary income benefits and permanent benefits. KRS 342.0011(14) clearly states that TTD benefits are considered to be “compensation.” KRS 3422.165 does not make a distinction between temporary and permanent benefits, nor is there anything indicating the 15% reduction is not applicable to TTD benefits paid before a judgment is rendered. Disposition: Affirmed ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Fayette County Board of Education v. Danielle Fowler; WCB No. 201700737; Stivers; Entered 5/10/2019. Procedural History: Fayette County appeals from an Award to Danielle Fowler of PPD, enhanced by three and medical benefits for work-related Post-Traumatic Stress Disorder (PTSD). Fayette County objects to the use of the three multiplier and the award of PPD for the work-related PTSD. Facts: A student at Fowler’s school attacked her from behind on 8/26/2015 causing facial scratches and mental health issues, alleging she was diagnosed with PTSD. The attack occurred at school. Fowler saw Dr. Stephen Cox on 9/3/2015 who increased her Xanax and started her on Propranolol after describing her anxiety, nightmares, etc. to him. Fowler requested accommodations from Fayette which it refused to provide. Fowler completed the current school year, and the following year Fowler went on FMLA, and has not returned to any work. Dr. Cox completed a Form 107 on 2/9/17 and diagnosed “PTSD, chronic, severe,” major depression, severe, and “panic disorder.” He assessed a 30% WPI, and acknowledged he was not familiar with the Guides. He attributed the PTSD and depression to the attack at school, and opined Fowler should not return to teaching for 6 to 12 months. In a supplemental report dated 5/24/17, he stated that based on Chapter 12, of the Second Edition, Dr. Cox assigned 63%. In a June 18, 2017 supplemental report he assessed 65%, explained his diagnosis, did not believe she could return to teaching, and attached a “Mini International Neuropsychiatric Interview”, indicating Fowler met the requirements for PTSD. In his 8/1/2018 deposition, he indicated she could only return to work in a “very low stress, low risk school environment possibly in the future.” The key symptom for PTSD is “avoidance behavior,” avoid the traumatic event, the place, people who are similar to those who traumatized them. Dr. Cox admitted no formal training in how to use or apply the Guidelines. Fayette had Fowler examined by Dr. Douglas Ruth who found symptom magnification, and who reached strong conclusions based on Fowler’s social media presence on Facebook because of her facial expressions in photographs and from words attributable to her. In his decision, the ALJ found Dr. Cox’s opinion to be the most persuasive given the totality of the circumstances. A primary consideration was the fact that he had treated Fowler over a period of time. The ALJ also awarded the three multiplier, noting that at the BRC that parties had only stipulated that Fowler retained the physical capacity to return to her former employment, but not the mental capacity. Also, since this was a heavily contested issue, the issue was tried by consent of the parties. Issues: 1) Did Dr. Cox’s admitted unfamiliarity in assigning an impairment rating under the AMA Guides affect his ability to give an impairment rating for PTSD? 2) Did the stipulation that Fowler retained the physical capacity to return to the type of work performed at the time of the injury preclude her from being awarded the three if she did not retain the mental capacity to return to the type of work? Holding: 1) No 2) Yes Reasoning: 1) Dr. Cox’s familiarity, or lack thereof, goes to the weight and credibility of his opinions and not their admissibility. The ALJ is the sole judge of credibility. The WCB actually compared Dr. Cox’s “Psychiatric Impairment Profile” contained in his report with the “Example of Psychiatric Impairment Profile” found on page 221 of the Second Edition, and found that both had a collective impairment class of four, moderate to severe, which equates to 55% to 75% whole person impairment range. Dr. Cox ultimately assigned a 65% whole person impairment which lies in the middle of this range. Further, the WCB completely accepted Dr. Cox’s criticism of the misleading nature of social media pictures and posts in the context of assessing one’s wellbeing. 2) The parties entered into a stipulation concerning the physical capacity. Fowler offered no qualifying language to the stipulation in which “physical capacity” was distinguished from “mental capacity.” Further, Fowler never asked to be relieved of the stipulation. Thus the ALJ could not find the three multiplier applicable. Further, the issue was not tried by consent. Nothing in the record suggests that Fayette County ever retreated from its position that the “three multiplier issue” had been waived anytime during the litigation. Disposition: Affirmed in Part, Reversed in Part, and Remanded ALJ: Hon. Richard Neal

Case Name, Citation, Author, Date Entered: Commonwealth of Kentucky, Department of Parks v. Shannon Rucker; 2018-SC-000385-WC; Memorandum Opinion, with Minton dissenting; Not To Be Published; Rendered 3/14/2019. Procedural History: This appeal is on a very limited issue wherein the ALJ determined that Rucker retained the physical capacity to return to the type of work she performed at the time of the injury, returned to her pre-injury work at the same or greater wage, but then voluntarily ceased employment, and still was entitled to the two-multiplier. Facts: Rucker was employed by Parks when she sustained a back injury. She returned to work at the same wage, and, about 6 months after the injury, quit her job for personal reasons. She worked other jobs, some at a greater wage, and voluntarily quit those jobs. She was unemployed at the hearing. The ALJ determined Rucker had a work-related injury and awarded PPD, finding she was not entitled to the 3 multiplier, but was entitled to the 2 multiplier. Parks argues that Rucker’s benefits should not be enhanced by the 2 multiplier, as the two-multiplier did not apply as a matter of law since the ALJ found that Rucker was physically capable of returning to the type of work she performed pre-injury. Issues: When an employee retains the physical capacity to return to the type of work she was performing at the time of the injury, returned to her pre-injury work at the same or greater wage, and then voluntarily ceased employment, was she entitled to the two multiplier? Holding: Yes Reasoning: The plain language of KRS 342.730(1)(c)(2) undoubtedly supports Rucker’s position: “During any period of cessation of …employment, temporary or permanent, for any reason, with or without cause, “ a claimant shall be awarded PPD benefits as modified by the two multiplier. Nowhere in the statute does it state or imply that a claimant’s physical capability to return to the type of work performed pre-injury bars application of the two multiplier. Disposition: Affirmed ALJ: Hon. Tanya Pullin

Case Name, Citation, Author, Date Entered: Curtis Edward Nall v. Henderson Chevrolet; WCB No. 201578288; Alvey; Entered 3/15/2019. Procedural History: Nall appeals from an Opinion dismissing his claim. The ALJ determined a non-work-related stroke caused Nall to fall and injure his shoulder on 6/23/2015. Facts: Nall argues he suffered a work-related heat stroke due to high temperatures and dehydration, and fell while tearing down a wooden structure, and suffering a rotator cuff injury and neurological damage. At the time of the incident Nall took insulin injections and medication for diabetes, as well as medication for high blood pressure, high cholesterol, and a MRSA infection. On the morning of the incident, his levels were “fine.” Nall claims he passed out due to the heat. After arriving at the hospital, Nall experienced slurred speech, facial drooping, and loss of some function on the right side. The original diagnosis upon admission was heat fall/exposure, with his temperature at 97.4 degrees Fahrenheit. It was while in the emergency room that he began deteriorating. An MRI the next day showed a subacute infarct in the left front parietal periventricular white matter. Nall was evaluated by Dr. Satish Shah who diagnosed subcortical stroke and right flaccid hemi paralysis. Following a neurologic evaluation, Dr. Dennis O’Keefe dismissed a heat stroke due to body temperature and diagnosed an acute cerebral infarction, based in part on Nall’s previous medical history, including excess weight, poorly controlled diabetes, hypertension and heart problems, which lead to the development of an occlusion of a blood vessel in the brain resulting in an ischemic cerebral infarction. The ALJ dismissed the claim finding there was nothing in the record which would support a finding of heat stroke. Issues: Did the ALJ err when she found there was no evidence of a heat stroke, but rather the incident was caused by an acute cerebral infarction due to an occlusion of the brain? Holding: No Reasoning: Dr. O’Keefe’s testimony alone constituted substantial evidence supporting the ALJ’s determination concerning causation. Dr. Beck’s testimony was also supportive where he felt the evidence was more suggestive of a blood flow related stroke and not a heat stroke. There had been no evidence that at any time the parties had discussed the possibility of an idiopathic fall, so Plaintiff’s attempts to discuss this at the WCB level were rebuked. Disposition: Affirmed ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author, Date Entered: Kevin Slusher v. Rock Hampton Energy, LLC; WCB No. 201764631; Alvey; Entered 2/15/2019. Procedural History: Slusher appeals from an award of TTD, PPD, and medicals for injuries sustained to his left eye. He was awarded 20% PPD, but was denied the enhancement of his benefits by either the 2 or 3 multiplier. Facts: The facts are limited in this single issue case. Slusher returned to his usual job at the same or higher rate of pay, and therefore the ALJ determined that he was not entitled to the 3 multiplier. It should be noted that the only restriction assigned was to require the use of safety glasses when working. The ALJ further ruled that Slusher was not entitled to the application of the 2 multiplier “yet.” Issues: Was the ALJ correct when the he found that Rucker otherwise met the requirements for the use of the 2 multiplier, but did not enhance the award because Rucker had not ceased earning an AWW of same or greater wage as of “yet?” Holding: No Reasoning: The ALJ implicitly determined KRS 342.730(1)(c)2 is applicable to Slusher’s claim, although he is not currently entitled to an enhancement of his award. The case was remanded to the ALJ to determine Slusher’s entitlement to the application of the statute and the enhancement of his award during any period of cessation of employment earning equal or greater wages during the period of his award in accordance with that statutory provision. Disposition: Affirmed in part, vacated in part, and remanded. ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: Miranda Morris v. Naegle Outdoor Advertising; No. 2018-CA-001111-WC; Clayton, Chief Judge; Rendered 3/29/2019; Not To Be Published. Procedural History: Morris appeals from a WCB opinion affirming the opinion of CALJ Gott wherein he found that a full mouth dental restoration was not compensable because the work-relatedness of such treatment was decided in a prior MFD and is now res judicata. Facts: This case is 31 years old, with medical and dental paid of over $627,000.00. In this MFD alone, 12 dentists testified. There were 4 claims, all settled as “full and final,” but reserving medicals. This was the TMJ claim. There were surgeries and TMJ replacements too numerous to mention. Of significance, in 2009, a full mouth restoration was proposed. Naegle opposed this as routine dental work and not related to the TMJ. The ALJ agreed, finding it to be non-work-related. The WCB affirmed. Morris persisted, and again proposed the work, with different dentists. Naegle argued res judicata, that the non-work-relatedness of the treatment had already been decided. The CALJ agreed, and the WCB affirmed. Issues: Did the CALJ err when he found that the finding of the ALJ in 2011 in a MFD concerning work-relatedness of prospective procedures was res judicata to the issue at hand? Holding: No Reasoning: The treatment sought now is virtually identical to the treatment sought in 2011 that was deemed not work-related. Morris failed to show how a treatment that was not work-related in 2011 now has become work-related. Morris failed to meet her burden of proof in 2011 when the ALJ failed to find work-relatedness between her work injuries and full mouth restoration. Due to the res judicata effect of ALJ Frasier’s ruling that a dental restoration is not work-related, the WCB did not err in affirming the opinion and orders of the CALJ. Disposition: Affirmed ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Yelvington Fire Department v. Steven Mattingly; WCB No. 200896990; Alvey; Entered 3/1/2019. Procedural History: Yelvington (YFD) appeals from an award wherein Mattingly was found PTD due to injuries he sustained in a work-related accident when he was struck by a motor vehicle on 12/22/2007. YFD argues the ALJ erred in finding PTD and finding that Mattingly sustained work-related injuries to his low back, SI joint, right shoulder, and neck. The WCB vacates the award insofar as the ALJ’s determinations regarding low back, SI joint, right shoulder and neck, and remands for additional findings to support his determination of work-relatedness to these body parts, and for a determination of whether Mattingly is PTD based solely on the injuries supported by the record. Facts: Mattingly filed a Form 101 alleging injuries to his right knee, right shoulder, left arm, right hip, head, neck, and back when struck by a motor vehicle while directing traffic at a scene. Dr. Gleis performed an IME for Mattingly and opined that the low back, right shoulder, and neck complaints were not due to the work injury. For the left shoulder, right knee and right hip he assessed 17%. Mattingly also filed Dr. Granacher who assessed 10%. He also file Dr. Mayron who diagnosed post traumatic sensory seizures, migraines, and optic neuropathy. Mattingly also filed Dr. Bradley, his family physician, and Dr. Khalily who recommended additional right shoulder surgery. Several other medicals were filed, but none referenced the low back, SI joint, right shoulder, or neck. The ALJ found that since there was no evidence that Mattingly was symptomatic prior to the work incident with his low back, SI joint, right shoulder and neck, that these conditions were all causally work-related. YFD filed for reconsideration and asked for additional findings regarding the evidence relied upon in determining Mattingly’s low back, SI joint, and neck injuries were work-related. The ALJ also ruled these injuries were temporary in nature, and so YFD asked to not be responsible for future medical benefits. In an amended award, the ALJ relieved YFD of responsibility of future medicals for these conditions, but left the award otherwise intact. Issues: Did the record contain evidence supporting Mattingly’s contention that he sustained injuries to the back, neck, SI joint. Or right shoulder? Holding: No Reasoning: Even when YFD requested additional findings by the ALJ to support his determination concerning these conditions, he failed to do so. The WCB was compelled to vacate the ALJ’s determinations regarding compensability and remand for additional findings as requested by YFD. The award of PTD was also vacated. On remand, the ALJ may make any award supported by the evidence, including PTD benefits based upon the compensable injuries supported by the evidence. No particular result was directed. Disposition: Vacated and Remanded ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Christina Lynn v. HealthSouth d/b/a Cardinal Hill Rehabilitation Hospital; WCB No. 201662623; Rechter; Entered 3/25/2109. Procedural History: Lynn appeals from an opinion and order awarding temporary benefits only, and not permanent ones. Facts: Lynn was an occupational therapist who alleged low back injury on 10/29/2016 assisting a patient. About one week prior she had visited Dr. Rob Hutchinson with complaints of right leg numbness. On the date of injury, she treated at Concentra Medical Center and reported back pain radiating into her legs. An MRI revealed mild degenerative disc disease but no evidence of herniation or stenosis. She later seen by Dr. Patrick Leung who referred her to Dr. Matthew Tutt who suggested that numbness was not coming from her spine. An EMG was negative for nerve entrapment. Dr. Chris Swayze, a pain management specialist evaluated her and suspected only intermittent compression of nerve roots. Dr. Phillip Corbett conducted an IME and diagnosed myofascial sprain of the lumbar spine, no true radiculopathy, and assigned 0%. Robinson refused a saline injection recommended by Corbett. Dr. Frank Burke conducted an IME and diagnosed acute lumbosacral strain with radicular complaints. There was no pre-existing. He assessed 7% (DRE II) all related to work. The ALJ dismissed any permanent claim, finding no “harmful change”, and that no physician had offered clear and objective evidence regarding causation. There was only temporary injury. The ALJ relied primarily on Dr. Swayze who suspected only “intermittent compression of lumbar roots.” Issues: Did the ALJ err when he failed to find any permanent impairment? Holding: No Reasoning: The law very clearly states that temporary benefits can be awarded even though no permanent injury has been found. The ALJ was free to believe some doctors that found the temporary injury, together with those who found no permanent injury. Lynn’s criticism of Dr. Corbett was misplaced. There was no evidence of bias, and the quality of his exam or basis of his diagnosis go to the weight of the evidence, not its admissibility. The argument that there was no evidence to support the finding of a pre-existing active condition was also without merit. The ALJ simply made no such finding. He made no findings in the opinion or on reconsideration about any pre-existing active condition. Disposition: Affirmed ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Christopher Gregory v. A & G Tree Service; No. 2018-SC-000139-WC; Memorandum Opinion of the Court; Rendered 4/18/2019; Not To Be Published. Procedural History: This is on appeal from a Court of Appeals opinion affirming the WCB’s opinion which denied the use of Dr. Warren Bilkey’s rating for the shoulder because Gregory was not at MMI; denied Dr. Eiferman’s 6% rating for the right eye because he did not reference the Fifth Edition of the AMA Guides; remanded the case to the ALJ to reassess the whole body impairment rating based on the remaining probative evidence; and, although differing in approach, the COA reached the same conclusion that an enhanced benefit pursuant to KRS 342.165(1) [safety violation] was properly denied. Facts: Since this is the third time to bring you this case, we will give you the simple fact upon which the decision is based. Dr. Warren Bilkey assigned 4% for the Claimant’s shoulder condition, however, stated that the Claimant was not at MMI. In a subsequent report, he reiterated the 4%, but failed to state whether Gregory was at MMI. The WCB rejected this report. Dr. Richard Eiferman assessed 6% for a right eye injury, however, made no reference to the AMA Guides. The WCB directed the ALJ to disregard this rating on remand. The WCB further remanded to the ALJ for further findings regarding the extent of Gregory’s occupational disability. The ALJ had found a PPD, and the WCB was directing the ALJ to make more findings, based on the probative evidence of record, as to Gregory’s disability. The ALJ’s original findings were not sufficient to provide an adequate review of his opinion. The COA subsequently affirmed the WCB actions in all of the above. Issues: 1) Was the opinion of the COA affirming the WCB decision on the medical evidence and on the finding concerning occupational disability correct? 2) Did the evidence of record support an enhanced benefit pursuant to KRS 342.165(1)? Holding: 1) Yes 2) No Reasoning: 1) The COA properly affirmed the WCB’s remand of the matter to the ALJ for further findings regarding the extent of Gregory’s occupational disability, as well as the WCB determinations regarding the ratings assigned by Drs. Bilkey and Eiferman. 2) Gregory sought enhancement of benefits under the specific statute, arguing that the mva in which he was involved was caused by a co-employee who had smoked marijuana just before entering the car, and who sped and drove recklessly. There was no evidence that the owner, or supervisors had any knowledge of the employee smoking marijuana or driving recklessly. The employee had passed drug testing, and his two speeding tickets over 19 months were insignificant, and raised no “red flags.” The SCOKY then discussed whether there was a violation of KRS 338.031(1), also known as the general duty clause. There is a four pronged test for this statute, and those elements simply were not present. This was primarily because the record contained no evidence that A & G was aware of any safety hazard presented by the co-worker. There was simply no evidence of the employer’s intentional violation of a statute or regulation or its own safety practices. Gregory’s testimony was not assigned great weight since he had only worked with the co-worker for 6 days. Disposition: Affirmed ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Uninsured Employers’ Fund v. TLC Companies, LIS Logistics, Carrier Concepts, Leonel Casas; N0. 2018-CA-001492-WC; Thompson; Rendered 3/29/2019; Not To Be Published. Procedural History: UIF appeals from the WCB decision reversing in part and remanding the 3/19/2018 award. This appeal concerns whether a policy of insurance provided by Zurich to TLC Companies provided coverage for an injury sustained by Leonel Casas during his employment. The WCB reversed and remanded the ALJ determination that Zurich was estopped from denying coverage. Facts: LIS is a trucking company. TLC is a professional employer organization (“PEO”) which furnishes employees to its clients and provides payroll processing, tax filings, background screening, and unemployment claim processing. TLC also provides workers’ compensation insurance for the assigned employees under a policy of insurance provided by Zurich. LIS and TLC had a contract whereby TLC would screen, approve, insure, and pay employees provided to LIS. The contract barred LIS from directly hiring, leasing, or otherwise employing other employees in categories for which it provided employees. If LIS failed to submit an individual for approval, that person was an employee of LIS, and not TLC. In 2013, Casas was hired by LIS, but did not go through TLC, and, of course, was injured. The ALJ rendered an opinion finding Casas an employee of LIS, and that TLC had coverage for him, based on a certificate of coverage filed with DWC that Zurich was the carrier for LIS. On appeal, the WCB determined that the certificate of coverage filed with the DWC, taken alone, was not a sufficient basis to estop Zurich from denying coverage for Casas’ injury. As LIS was not insured by Zurich and TLC for non-assigned employees, the WCB remanded the matter to the ALJ to address the responsibility of LIS and UEF as to the awarded benefits. Issues: 1) Does public policy demand that the notice of coverage filed with the DWC operate to establish insurance coverage on all TLC and LIS employees, despite the clear language of the service agreement between TLC and LIS stating that TLC provides WC coverage only for assigned employees? Holding: No Reasoning: KRS 342.615(4) provides that an employer who uses a PEO may insure the leased employees either directly or by contracting with the PEO to provide coverage. The associated regulations acknowledge that a PEO may provide coverage for leased employees, but not every employee. 803 KAR 25:230 section 4(4) states that a PEO must file a “listing of the leased employees associated with each lessee.” These laws require that when a PEO contracts to provide coverage only for leased employees, it is not bound to cover all employees including non-leased employees. The statutory and regulation language is clear on this issue. The general public has no reasonable expectation that the filing of a notice of coverage with the DWC estops Zurich from denying coverage even as to LIS’ non-leased employees. Disposition: Affirmed ALJ: Hon. Jane Rice Williams COA Panel: Taylor, K. Thompson, L. Thompson

Case Name, Citation, Author, Date Entered: United Parcel Service, Inc. v Margaret Fleitz; WCB No. 199967121’ Stivers; Entered 2/22/2019. Procedural History: UPS appeals from an Opinion and Award in this MFD wherein the ALJ determined the contested left shoulder arthroscopy with biceps release was compensable, asserting that the ALJ failed to make a finding regarding the work-relatedness of the contested surgery, and, that the finding that the shoulder procedure was compensable based on the principle of promissory estoppel was erroneous. Facts: A settlement Agreement approved on 5/8/2001indicated a left shoulder labral tear on 8/24/1999, with subsequent left orthoscopic surgery, and a 6% impairment from Dr. Frank Bonnarens. A settlement was based on Bonnarens and medicals remained open. A MFD was filed by UPS on 2/8/2017 contesting an EMG/NCV of the left upper extremity was reasonable and necessary treatment of Fleitz’s work injury. UPS filed a medical records review of Dr. Andrew DeGruccio dated 6/8/2017 questioning a long head of the biceps release. He could not confirm any diagnosis or the medical appropriateness of the treatment without an examination. UPS then filed a “Motion to Suspend Benefits” dated 6/13/2017, including both medical and income, until Fleitz appeared for an IME with DeGruccio, having missed an appointment on 6/7/2017. The record contains a letter dated 6/26/2017 to Dr. Frank Bonnarens from Liberty Mutual indicating that following U/R, an arthroscopy and release of biceps left shoulder was pre-certified per U/R review. A copy was sent to Fleitz. On June 29, 2017, UPS filed a Motion to Amend the MFD contesting the compensability of the left shoulder arthroscopy with release of the biceps on the basis of work-relatedness/causation. The missed appointment for the IME meant the employer was unable to adequately address compensability of treatment. By order dated 7/11/2017 the ALJ sustained this motion to contest the surgery. Fleitz underwent the contested left shoulder arthroscopy surgery on 7/12/2017. An order was entered on 8/2/2017summarizing events and allowing additional information to be filed. Subsequent orders would then be entered. On 2/20/2018 a renewed motion to suspend benefits was filed, as the ALJ had failed to rule on the original one. On 2/22/2018, the ALJ ordered Fleitz to attend the IME with Dr. DeGruccio. The IME report of Dr. DeGruccio did not relate any of the recent surgery and treatment to the work injury, and was critical of Dr. Bonnarens’ diagnosis and treatment. At the final hearing, Fleitz admitted receiving the 6/29/2107 Motion to Amend, however denied knowing what it meant, and testifying that Dr. Bonnarens had assured her the surgery had been pre-approved. The ALJ issued the Opinion and Award on 9/19/2018, and, relying on promissory estoppel and the fact that the surgery had been authorized, and there was no evidence that at any time the pre-authorization was withdrawn, ordered the medical provide to pay for the surgery. UPS argues on appeal that the ALJ failed to determine the work-relatedness of the shoulder surgery with biceps release, and, the ALJ failed to provide the evidentiary basis for finding that Dr. Bonnarens was induced by the U/R to perform the surgery. The WCB vacated on the second issue, rendering the first issue moot. Issues: Did the ALJ properly explain and apply the use of the doctrine of promissory estoppel in the approval of the shoulder surgery in this MFD? Holding: No Reasoning: The WCB pointed out that that while sympathetic to the plight of pro se claimants, they are treated no differently by the WCB than those represented by counsel, and assume the risks and rewards associated with self-representation. The WCB also pointed out that the occurrence of procedural failings on behalf of all parties, had they have been avoided, might have mitigated the problem the parties now face. Included was the fact that the ALJ was likely unaware that the arthroscopic surgery had been pre-certified at the time he sustained the motion of US to amend its MFD on7/11/2017, as the letters sent to Dr. Bonnarens and Fleitz were not filed in the record until 8/7/2017, one month after the surgery. It further appears that the pre-certification letters were not filed of record until 8/7/2017. Further, the WCB noted, at no time did UPS ever formally withdraw its pre-certification of the surgery, which would have been prudent. Finally, there was Fleitz’s failure to comply with relevant procedural rules when she refused to submit to the IME with Dr. DeGruccio on 6/7/2017, before the surgery. The ALJ did not order to attend the IME until seven months after the contested surgery. This caused significant delay in litigation and prevented UPS from obtaining a conclusive medical opinion on the issue of work-relatedness of the proposed surgery. On the issue of promissory estoppel, the Supreme Court has articulated: “A promise that the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” It can be invoked when a party reasonably relies on a statement of another and materially changes his position in reliance on the statement. While promissory estoppel has not resolved any WC cases, it may be applicable here had the ALJ not failed to make adequate findings. The ALJ must set forth exactly how Fleitz and Dr. Bonnarens were induced to move ahead with the contested surgery in light of the fact that UPS had filed an amended MFD on 6/29, only three days after the pre-certification letter, and in light of the UPS motion to suspend benefits. Compounding everything was the failure of Dr. Bonnarens to participate in any of the proceedings, despite being a named party, to explain how relying on the pre-certification was to his detriment. There is simply nothing documented in the record that shows when Fleitz and Dr. Bonnarens received or did not receive in the mail. The ALJ, on remand, must set forth the evidence substantiating promissory estoppel, in light of all the pleadings filed, and Fleitz’s refusal to attend an IME with Dr. DeGruccio until 9 months after the surgery. Disposition: Vacating and Remanding ALJ: Hon. Chris Davis

Case Name, Citation, Author, Date Entered: Tryon Trucking, Inc. v Randy Medlin; No. 2018-CA-001076-WC; Clayton, CJ; Rendered 3/29/2019; Not To Be Published. Procedural History: Tryon and UEF appeal a WCB opinion which affirmed in part, vacated in part, and remanded a decision of the ALJ for further findings of fact. The issue was whether or not there was sufficient evidence to confirm that Tryon was not an “up the ladder” employer, and, why was not Mikron found to be an “up the ladder” employer. Facts: Medlin filed his claim alleging he suffered injuries in a work-related mva on July 25, 2013. There were five employers listed, including Tryon. Medlin alleged he was driving a semi owned by Griffith and leased to Tryon, and a trailer owned by Smith, hauling materials due to a contract with Tryon. Mikron, the owner of the materials, was added later. Each employer alleged that Medlin was not an employee at the time of the accident, or, that he was an independent contractor. In an interlocutory opinion, ALJ Wolff found Medlin to be an employee of Griffith (truck owner), who was uninsured, and that the facts did not support a finding that either Tryon or Mikron was an “up the ladder” employer. Wolff relied on an unpublished case, Uninsured Employers’ Fund v. Ritchie, No. 2012-SC-00746-WC, 2014 WL 1118201 (Ky. March 20, 2014). This of course made the UEF liable. Thereafter, newly-assigned ALJ Dye conducted a hearing and found no evidence to require him to modify ALJ Wolff. On appeal, the WCB found with Tryon, ruling ALJ Wolff had made a mistake of fact as it related to the comparison to the Ritchie case, and Tryon’s dismissal, and vacated and remanded for ALJ Dye to address the distinctions between Ritchie and this case, as they pertained to Tryon. The WCB affirmed as to Mikron, citing similarities between Mikron and the Ritchie case. Both Tryon and UEF appealed. Issues: 1) As to Tryon, did the WCB commit reversible error in concluding that further factual findings and analysis were required? 2) As to Mikron, did the WCB err in finding that Mikron was not Medlin’s “up the ladder” employer and has escaped the up the ladder responsibility because it chose to subcontract its delivery responsibilities to a third party Holding: 1) No 2) No Reasoning: 1) The WCB is prohibited from substituting its judgment for that of the ALJ regarding the weight of the evidence on questions of fact. The COA has plainly stated that the WCB has the absolute discretion to request further findings of fact. The COA noted the several factual differences that existed between Ritchie and this case, which were significant, and went to the heart of the case. The ALJ was mistaken as to the whether the facts were closely aligned to this case or not. 2) Relying on the Ritchie case, the COA found that Mikron held an identical position to a party in the case, Image Point, and because Mikron similarly did not own or lease any trucks, and because it outsourced its shipping needs to other parties and would not be expected to use its own employees to ship its product, the substantial evidence upheld the Interlocutory Order that Mikron was not an up-the-ladder employer of Medlin. Disposition: Affirmed ALJ: Hon. Brent Dye UEF: C. D. Baston COA Panel: Clayton, K. Thompson, and Holmes

Case Name, Citation, Author, Date Entered: Travis Bollenbecker v. H & H Sheet Metal; No. 2018-CA-001345-WC; Combs; Rendered 4/12/2019; Not To Be Published. Procedural History: Bollenbecker appeals from an opinion of the WCB which determined that the ALJ did not abuse his discretion in relying upon the impairment rating of the treating physician. Facts: This case had limited discussion of the facts since the issue was so narrow. The issue was simply concerning the impairment rating used. Three physicians assigned ratings in this case—Dr. McLaughlin, the treating orthopedic, and Drs. DeGruccio and Roth, both of whom performed IMEs. Bollenbecker filed Dr. McLaughlin’s records which identified his injury as a markedly comminuted left femur fracture from a crush injury, with muscular damage. On 10/23/2015, McLaughlin assigned a 13%, using the Fifth Edition of the Guides. On November 12, 2015, Dr. McLaughlin references the Sixth Edition of the Guides, and assigns 13%, citing specific tables. On 7/1/2016, Dr. DeGruccio performed an IME for H & H, and assigned 2%, under the Fifth Edition. On 11/3/2017, Dr. Roth prepared an IME for Bollenbecker, and assigned 19%, under the Fifth Edition. On 11/3/2017, H & H filed records from Dr. McLaughlin wherein he assigned 10% based on the Fifth Edition of the Guides. On 1/8/2018Bollenbecker filed a supplemental report from Dr. Roth in which Roth explained that he was confident the original rating from McLaughlin was from the Fifth Edition of the Guides, and not the Sixth, since the references to tables in the rating were all in the Fifth Edition, and not the same in the Sixth Edition. The ALJ relied upon Dr. McLaughlin’s 10%, surviving Bollenbecker’s attack that it was “dishonest”, and the revision as “an intentional effort on the part of Dr. McLaughlin to favor the Defendant.” This was rejected by the ALJ, citing the opportunity to see and treat Bollenbecker, and excusing the use of the term “Sixth Edition” as being because Dr. McLaughlin practices in Tennessee and that state uses the Sixth Edition. The WCB affirmed, rejecting Bollenbecker’s argument that Dr. McLaughlin arbitrarily adjusted his impairment rating after meeting with Defendant’s counsel. This argument was rejected, as was any argument that the rating did not conform to the Fifth Edition. Issues: Did the adjustment of the rating from 13% to 10% by the treating physician show a bias towards the Plaintiff? Holding: No Reasoning: The ALJ noted that Dr. McLaughlin articulated his reasons for adjusting his rating from 13% to 10%. The ALJ simply exercised his discretion in accepting Dr. McLaughlin’s opinion. It is not the function of the WCB, or the COA, to revisit the ALJ’s assessment. Disposition: Affirmed ALJ: Hon. Greg Harvey COA Panel: Clayton, Combs, and K. Thompson

Case Name, Citation, Author, Date Entered: Martin Reed v. Lincoln Jones, Robert Dockery Properties, LLC, Uninsured Employers’ Fund; No. 2018-CA-000490; Henry, Special Judge; Rendered 4/12/2019; Not To Be Published. Procedural History: After three appeals to the WCB, this case now makes the COA. Reed appeals the WCB which affirmed the ALJ dismissing his claim. Facts: The relevant facts are brief. Reed’s primary job was with Motel 6, but Reed met Jones who was the property manager and who performed tasks for Robert Dockery Properties. Reed performed jobs for Jones for extra money, and injured his wrist in so doing. Cutting to the chase, the ALJ determined that Reed was never employed for any time period longer than 20 days, and that Jones had no other employees, thus exempting Reed from coverage under KRS 342.650(2) which exempts employees from coverage if they perform “maintenance, repair, remodeling, or similar work” and are employed for less than “twenty (20) consecutive work days” or “the employer has no other employees.” Issues: Was the ALJ correct in exempting Reed from coverage under the statute? Holding: Yes. Reasoning: The evidence clearly showed that Reed was never employed for twenty consecutive days. The ALJ further found that there were no other employees. An employee can be exempt from coverage either because he worked less than 20 consecutive days or because his employer had no other employees. Both reasons for exemption need not apply. Disposition: Affirmed COA Panel: Kramer, Maze, and Henry, Special Judge. ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Betty Jo Robinson v. Kroger; No. 2018-CA-000806-WC; Lambert; Rendered 4/12/2019; TO BE PUBLISHED. Procedural History: Robinson appeals the WCB opinion affirming the ALJ’s decision to dismiss her claim against Kroger. The COA vacates and remands, finding that Dr. Dubou failed to address whether or not Robinson’s repetitive work had aroused her pre-existing, dormant condition into disabling reality. Facts: Robinson filed her claim for an alleged injury to her right wrist and hand working at Kroger in the deli. She had been at Kroger for about 3 years and had no history prior to this, and in fact, had been a stay at home mother. Dr. David Schulz at Norton Occupational Clinic diagnosed her with right wrist tendonitis and overuse syndrome. Dr. Jeri Reid at Immediate Care Center thought she had CTS. Her “injury” date was 10/1/2016. She last worked 10/12/2016. She received no benefits. Robinson underwent surgery to repair a torn ligament in January, 2017. Dr. Jules Barefoot performed an IME. While not assigning a rating since she was not at MMI, Dr. Barefoot concluded that it was “more likely than not these work activities accelerated or hastened her underlying dormant asymptomatic condition into symptomatic painful disabling reality.” And, “her workplace activities were the cause of her initial wrist pain for which she sought medical treatment.” Robinson also filed the records of Dr. Antony Hazel at Louisville Arm & Hand who performed a right wrist arthroscopy and TFCC debridement. He stated “given that she did not have previous wrist pain, her symptoms may have been related to her activity at work. While exact causality can be difficult to assign, central TFCC tears can be associated with repetitive action and this work can aggravate this condition.” Kroger filed the report and follow-up report of Dr. Richard Dubou’s IME. He did not believe her TFCC tear nor her other problems were related to her work at Kroger. He did not understand how Dr. Barefoot determined that the TFCC injury was related to work, and thought her condition was simply degenerative. The ALJ relied on Dr. Dubou, supported by Dr. Hazel’s records to conclude Robinson had not met her burden of proof. Dr. Hazel had only said the symptoms “may” be related to her activity at work, and Dubou simply believed it was a degenerative tear. On reconsideration, Robinson argued that Dubou failed to address whether her work aroused the degenerative condition. The ALJ again relied on Dubou that he did not know how Barefoot determined the injury was related to work, and, the ALJ stated that Dubou “made it clear that he considered whether Plaintiff’s work brought into disabling reality a dormant condition.” The WCB affirmed the ALJ, rejecting Robinson’s arguments that the ALJ failed to set forth sufficient factual findings as to whether her work caused her condition to become symptomatic or that the “uncontroverted” medical evidence supported a finding that she had sustained a work injury. Issues: Did the evidence “compel” a different finding than the one made by the ALJ? Holding: Yes Reasoning: Dr. Barefoot specifically concluded that Robinson’s dormant condition was aroused into disabling reality by her work at Kroger. While Dubou disagreed with Barefoot that Robinson’s TFCC injury was related to her work, he did not specifically address whether her underlying degenerative condition was aroused by her work activities. His conclusion addressed whether Robinson had sustained a traumatic injury, not whether a dormant condition had been aroused. The evidence of record compels a different result because Dubou did not consider the issue of arousal as the ALJ and the WCB held. The decision was vacated and remanded to the WCB to address whether Robinson’s repetitive work aroused her pre-existing, dormant condition into disabling reality. Disposition: Vacated and Remanded COA Panel: Combs, Lambert, and K. Thompson ALJ: Hon. Tanya Pullin

Case Name, Citation, Author, Date Entered: R & T Acoustics v. Bernabe Aguirre & National Drywall; No. 2018-CA-001277-WC; Dixon; Rendered 3/29/2019; To Be Published Procedural History: RTA petitions for review of a WCB opinion reversing and remanding the ALJ’s order dismissing Aguirre’s claim for benefits. Facts: Aguirre was injured falling from a ladder. During the course of urgent care treatment, his urine sample tested positive for cocaine. RTA was found to be an “up the ladder” employer, and raised the affirmative defense of voluntary intoxication pursuant to the version of KRS 342.610(3), then in effect, which stated: “Liability for compensation shall not apply where injury…to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 501.010[.]” (An amended version of KRS 342.610 was effective 7/14/2018.) Aguirre testified that the ladder “slipped” while he was on it, his foot caught in one of the rings, and he fell on the roof. The lab report of the urinalysis indicated a positive result for cocaine, with a screening cutoff of 300ng/MI and a confirmation cutoff of 150ng/MI. RTA submitted Dr. Richard Sheridan who opined: “The presence of cocaine in the quantities documented could have been a significant contributing factor in his injury. It could have caused his injury to be worse than if he had not been impaired.” RTA also submitted the report of Dr. Saeed A. Jortani, a clinical chemist and forensic toxicologist who reviewed the medical records. He opined that it was not feasible to establish whether the positive test was due to a recent ingestion or use of cocaine the day before. It was Dr. Jortani’s opinion with reasonable scientific probability that Aguirre was more likely than not an active user of cocaine. The time of last ingestion was not clear nor was the frequency of abuse. He could only conclude that by ingesting cocaine at some point during the period of 1-24 hours prior to testing, Aguirre put himself at greater risk of falling while being on top of the ladder and the resulting fall and injuries. The ALJ dismissed the claim, relying on the opinions of Drs. Sheridan and Jortani. The WCB vacated and remanded, determining that the opinions of Drs. Sheridan and Jortani were insufficient to support the finding of voluntary intoxication. The WCB held that the ALJ must find the proximate cause “primarily” leading to Aguirre’s accident was his cocaine use utilizing the medical evidence in the record. The ALJ thereafter issued an opinion on remand dismissing, again relying on the opinions of Drs. Sheridan and Jortani, the positive drug screen, and Aguirre’s testimony. Also, Aguirre failed to explain why the ladder “slipped.” The WCB again reversed and remanded concluding the findings made by the ALJ were merely suppositions not supported by evidence in the record. Issues: Did the employer fail to produce substantial evidence that Aguirre’s injury was proximately caused primarily by voluntary intoxication? Holding: Yes Reasoning: There was no evidence produced establishing the condition or possible deficiencies with the ladder, the condition or grade of the roof, or the weather on the date of the accident. The ALJ’s determination that the lack of evidence on these issues supports the conclusion Aguirre’s voluntary ingestion of cocaine was a primary cause of the accident is speculative at best and fails to rise to the level of proof necessary to establish causation in the affirmative defense of voluntary intoxication. Disposition: Affirmed ALJ: Hon. Stephanie Kinney COA Panel: Dixon, Goodwine, and Maze

Case Name, Citation, Author, Date Entered: McKechnie Vehicle Components v. Allen Turpin; WCB No. 201394135; Alvey; Entered 3/29/2019. Procedural History: McKechnie appeals from an Opinion and Order resolving a MFD in favor of Allen Turpin. The ALJ determined a recommended bariatric weight loss surgery is reasonable and necessary treatment for the cure and relief of Turpin’s work-injury, and therefore compensable. Facts: Turpin injured his left knee and back on 2/11/2013. He was awarded TTD, PPD, and medical benefits for the knee injury. On 3/23/2017 McKechnie filed a MTR and MFD challenging the work-relatedness and necessity of proposed gastric bypass surgery. Turpin subsequently filed a MTR based on change of condition. In an Order, the ALJ passed the merits of the motion to reopen based on a change of condition until after the bypass surgery. At the time of the injury Turpin weighed 397 pounds, and had subsequently lost 67 pounds, but was unable to lose more. A knee replacement surgery was recommended, however, Dr. Duncan would not perform the surgery until Turpin lost another 100 pounds. McKechnie filed Dr. Phillip Corbett’s report who did not think the bypass surgery was reasonably medically probable to be work-related. Turpin filed Dr. Duncan who felt the bypass surgery was necessary and would improve his condition sufficiently to allow Turpin to undergo the replacement surgery. The ALJ, relying on Dr. Duncan found the bypass surgery compensable. It would be necessary to allow for a successful knee replacement surgery. Issues: Did the ALJ correctly find the bariatric bypass surgery to be reasonable and necessary for treatment of the work-related injury? Holding: Yes. Reasoning: The ALJ addressed reasonableness, necessity and work-relatedness in her decision, and the WCB found no error. Her decision was supported by the record. The WCB did, however, sua sponte, did remand the case to the ALJ to address the outstanding MTR. Disposition: Affirmed and Remanded ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author, Date Entered: Ford Motor Company v. Tomika McDaniel; WCB No. 2-17-000835 & 2016-99371; Rechter; Entered 3/29/2019. Procedural History: Ford appeals the Opinion on Remand of PPD benefits, enhanced by the 3, and the Order striking the report of Dr. Loeb filed by Ford. Facts: McDaniel began her employment with Ford in 1995. She alleges a right knee injury on 8/19/2015, and a left knee injury on 11/16/2016. She had been treated for her knees in 1995 by Ford, and in 2008 by Dr. Raymond Shea. MRIs revealed no tears. She felt a pop in her right knee on 8/19/2015Tests revealed tri-compartmental arthritis of the knee and a meniscus tear. She was eventually taken off work, received TTD, and returned to work on a “special assignment” job. She injured her left knee when it “jammed.” She received TTD, then disability. She has not returned to work at Ford. Dr. Andrew DeGruccio performed an IME, found well-established arthritis in the knees which was active, and assigned 36%, none of which was related to the injuries. Dr. Jules Barefoot performed an IME and found no ratable impairment before the injuries. He assigned 20% to each knee (36% WPI), and found all of the rating was related to the work-injury. Dr. Smith also found for Ford, following the lead of Dr. DeGruccio in finding pre-existing, and no work-relatedness. The ALJ originally found for McDaniel, however, the WCB reversed and remanded with orders for a further discussion of Dr. Smith’s report. On remand, the ALJ, Ford again argues there is not enough evidence to support the ALJ, and that Smith and DeGruccio”s reports were more than enough. Further, Ford argues the ALJ abused her discretion by not allowing the report of Dr. Thomas Loeb to be filed. Issues: 1) Was Ford’s argument that the ALJ was in error because she failed to consider the application of Cepero to the case with merit? 2) Was the application of the two multiplier more appropriate than the three? 3) Did the ALJ abuse her discretion when she failed to allow the medical report of Dr. Loeb to be filed? Holding: 1) No 2) No 3) No Reasoning: 1) The case was nothing like Cepero. Here, there was no hiding the previous treatment for the knee. Even though McDaniel had not discussed this with Dr. Barefoot, Dr. Barefoot acknowledged he had read the other reports and records, all of which referenced the prior treatment. He was apprised of the history by virtue of reading the other reports. 2) Ironically, in its brief to the ALJ Ford not seriously challenge the use of the 3 multiplier, and actually conceded the Fawbush elements actually lent themselves to the application of the 3. Further, Ford failed to identify any evidence that McDaniel is likely to be able to continue to earn same or greater wages for the indefinite future. 3) Ford thought it had filed Loeb’s report earlier. It attempted to file the report at the WCH, and the ALJ denied the filing. Loeb’s report was merely cumulative evidence. Ford had already submitted Smith and DeGruccio in support of its position, and the ALJ had rejected those opinions. Disposition: Affirmed ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author, Date Entered: David Daugherty v. Warrior Coal, LLC; No. 2017-CA-001851-WC; Clayton; Rendered 3/22/2019; Not To Be Published. Procedural History: IN this State Black Lung case, Daugherty appealed from a WCB opinion affirming an award by the ALJ, who found Daugherty entitled to income benefits and medical benefits due to a 25% rating for CWP. Facts: This case turned into a constitutional argument which Daugherty was sure to lose at this level. Daugherty was found to be entitled to income benefits and medicals due to a 25% disability rating from CWP under KRS 342.732(1)(b)(1). Daugherty contends he instead was entitled to PTD benefits under KRS 342.730, or enhancement under KRS 342.730(1)(c)(1). Relying on Dr. Westerfield, who was appointed by the Commissioner of the DWC, but who was not a university evaluator, the ALJ awarded Daugherty 25% based on his rating. Daugherty contended that the ALJ had to rely on Westerfield’s report in toto, since Westerfield also stated he thought Daugherty was totally disabled. Daugherty also argued that he should have been found PTD under KRS 342.730, instead of found disabled under KRS 342.732, and that treating coal miners differently was a violation of his constitutional rights to equal protection. Issues: 1) Should Dr. Westerfield’s report have been given presumptive weight as to disability? 2) Is Daugherty’s constitutional right to equal protection violated when the statute for a coal miner suffering from pneumoconiosis differs from the statute for other workers suffering from non-coal workers pneumoconiosis? Holding: 1) No 2) No Reasoning: 1) The ALJ may reject, or believe or disbelieve various parts of the evidence, even if it comes from the same witness, or the same adversary party’s proof. Further KRS 342.315(2) only requires presumptive weight to the clinical findings and opinions of a university evaluator. Dr. Westerfield, while appointed by the Commissioner when a university evaluator was not available,, was not a university evaluator. The COA declined to apply a statutory presumption outside the plain language of the statute. 2) This has already been established by the Supreme Court of Kentucky in Kentucky Harlan Coal Co. v. Holmes, 872 S.W.2d446 (Ky. 1994). Vision Mining Inc. v. Gardner, 364 S. W. 3d455 (Ky. 2011), cited by Daugherty, dealt with different standards of proof and procedures, not benefits. Disposition: Affirmed ALJ: Hon. Roland Case COA Panel: Clayton, Dixon, and Jones

Case Name, Citation, Author, Date Entered: Tyler White v. Extreme Underground Drilling, Uninsured Employers’ Fund, AT & T, & CT Corporation; WCB No. 201701380; Alvey; Entered 12/20/2018. Procedural History: White appeals from an order dismissing his claim in the entirety due to lack of territorial jurisdiction. Facts: White alleges multiple head injuries which occurred on 8/4/2017 working for Extreme in Murfreesboro, Tennessee. In the Form 101, White indicated Extreme’s business address is located in Albany, Kentucky, and he identified AM Trust North American as Extreme’s WC carrier. The Commissioner for DWC certified that a WC policy was not in effect for Extreme in Kentucky on the date of injury. UEF and AT&T were joined as parties. The claim was bifurcated on the issue of jurisdiction. Counsel for AM Trust, UEF, and AT&T participated in the litigation. Extreme, pro se, did not participate in the Kentucky claim. Extreme did submit a claim with the Tennessee Bureau of Workers’ Compensation on 8/17/2017 for this same injury. Documents submitted establish AM Trust paid medical expenses and TTD pursuant to Tennessee WC law. Extreme was formed by Gary Wallace, White’s brother in law who also lives in Albany. It is a land fiber optics business. None of its jobs are performed in Kentucky. Paychecks and W-2 forms list the Albany, Kentucky address of White and his wife as the business address. Extreme was hired as a sub-contractor for Bellsouth/AT&T in Murfreesboro. Wallace testified that Extreme did not do any business in Kentucky. While working in Murfreesboro, Wallace testified that he and other workers met at a gas station in Kentucky and drove to Tennessee for the week, staying in a motel, where he worked from, and got mail. Tennessee workers met there in the morning for a “toolbox meeting’ before going to work. In an opinion on jurisdiction, the ALJ entered an opinion on 8/23/2018 ruling that Kentucky did not have jurisdiction and dismissed the claim. The ALJ served copies on counsel for White, counsel for AM Trust, counsel for Bellsouth, and counsel for UEF, but not to Extreme. A Petition for Reconsideration was sent to everyone, including Extreme, but a copy of the Order on Reconsideration was not sent to Extreme. And, although a party Defendant, a Notice of Appeal was not sent to Extreme. Issues: Did the ALJ err when he failed to send a copy of the Opinion and a copy of the Order on Reconsideration to the Defendant, who was not represented by counsel? Holding: Yes Reasoning: This matter was remanded with instructions to send copies of the decision and order on reconsideration to all parties, including Extreme, in accordance with KRS 342.275 (2) and 803 KAR 25:010 sec. 3 (9). Until all parties have been afforded the opportunity to appeal the Opinion, Award, and Order of the ALJ, the WCB is unable to address the merits of the appeal. The failure of the ALJ to serve copies of the Opinion, as well as the Order on Reconsideration to all parties, including Extreme, is a denial of due process. Disposition: Vacated and Remanded ALJ: Hon. Chris Davis

Case Name, Citation, Author, Date Entered: TA Operating, LLC v. Wanda Napier; WCB No. 201800392; Alvey; Entered 3/1/19. Procedural History: TA appeals from an award of TTD, PPD, and medical benefits for a knee injury sustained by Napier. Napier cross appeals because the ALJ failed to enhance her benefits by the two multiplier. Facts: Napier tripped and fell while working for TA, injuring her right knee which had previously been replaced due to non-work-related injury. Napier had concurrent employment, with a total pre-injury AWW of $618.82, and post-injury AWW of $592.32. Dr. Joshua Murphy diagnosed a mechanical loosening of the right knee prosthetic joint and performed a right knee arthroplasty revision surgery. Dr. Thomas Bender diagnosed an acceleration of the mechanical loosening of the right knee prosthesis, and assessed 20%, and apportioned 15% to the prior right knee replacement, and 5% to the injury and surgery. Dr. Deerhake evaluated Napier at TA’s request. He found no evidence that the fall substantially aggravated her condition, agreed with the 20%, but none was related to the fall. The surgery was reasonable and necessary, as was the time Napier was absent from work. There was no additional impairment due to the injury, and no restrictions due to the injury, and all restrictions were pre-existing. The ALJ awarded 5%, found the injury compensable, and also awarded TTD, but did not assign any multipliers. Issues: Did the ALJ act within his discretion in determining that Napier sustained a work-related injury to the knee, and, in not enhancing the award of PPD by the 2 multiplier? Holding: Yes Reasoning: The determination was supported by Dr. Bender’s opinion. The ALJ was not required to rely on Dr. Deerhake’s contrary opinion. The fact-finder, not the WCB, determines the credibility of the evidence. The reasoning. This falls well within the discretion afforded him. The determination falls within the ALJ’s discretion on enhancement is to be determined by the ALJ, not the WCB. The 3 multiplier was not applicable since Napier returned to the work he was doing and Napier had no permanent restrictions. The parties stipulated the post-injury AWW was less than the pre-injury. Further, the use of the 2 was not preserved as an issue in the BRC order, nor was it discussed at the hearing. Disposition: Affirmed ALJ: Hon. Jeff Layson

Case Name, Citation, Author, Date Entered: Lion Apparel, Inc. v. Alice Jolly; WCB No. 201701582 & 201673241; Alvey; Entered 2/8/2019. Procedural History: Lion appeals from an Opinion and Award for a cervical injury wherein the ALJ found the cervical condition from cumulative trauma manifested on 1/1/2016, and the injury was asserted as being on 1/15/2015. The ALJ awarded TTD, PPD, and medical. Lion argues several issues, notably the failure of the ALJ to provide clarification concerning the manifestation date, the failure to perform appropriate analysis in determining entitlement to TTD benefits, and the failure to provide an analysis overall that would allow for meaningful review. Facts: This was originally 2 claims, one cervical, and one lumbar. We will only discuss the cervical. Jolly was a seamstress for Lion, operating a sewing machine. She originally listed her injury date as 1/1/2016, but later amended it to 1/15/2015. She testified no physician ever told her the neck condition was work related, but she believed it was caused by her repetitive work activities. Dr. Bosomworth’s records were filed revealing cervical treatment in 2015 and 2016. University of Kentucky Neuroscience records reveal cervical treatment during the same period, with an MRI showing C3-4 and C5-6 disc herniations. Dr. Craig Roberts examined Jolly at her request and noted no previous neck problems until a gradual onset of neck pain manifesting on 1/1/2016. He diagnosed cervical disc herniations due to cumulative trauma manifesting on or about 1/1/2016, and assessed an 18% rating. MMI was set at 7/1/2016. Lion filed office notes from Dr. James Frederick. Jolly first reported neck pain in January, 2013, and again on 1/15/2015, but with no history of injury. Lastly on 5/4/15, she reported the same. Lion filed Dr. Tibbs. Jolly’s first complaints to him of neck pain were made on 6/26/2015, and, were of 8 months duration. Lion also filed Dr. Bosomworth’s records. On 12/18/15, a cervical MRI showed evidence of disc herniation and he diagnosed cervical spondylosis. Four later office visits revealed complaints of neck pain. Lion had Jolly seen by Dr. Henry Tutt, but primarily for the low back, but he did note the cervical pain, as well as the cervical MRI which demonstrated mild multi-level degenerative changes. Dr. Vaughan examined Jolly at Lion’s request and noted wear and tear changes in the cervical spine, normal for her age, and no cumulative trauma. She had a 0% rating, and her complaints were out of proportion to her objective findings. The ALJ found a cervical injury in January, 2015, which did not manifest until 1/1/2016 based upon Dr. Robert’s report. Notice was timely given, and the claim filed within the applicable statutory limitations period. TTD was ordered from 1/15/15 through 7/1/16. Issues: 1) Did the ALJ err when he failed to provide additional findings requested by the employer regarding the cervical injury? 2) Did the ALJ make sufficient findings concerning the award of TTD? Holding: 1) Yes 2) No Reasoning: 1) The ALJ found the manifestation date as 1/1/2016, and the date of injury as 1/15/2015. Those dates do not need to be synonymous. The first date found by a physician that the neck was work-related was by Dr. Roberts on 8/2/2017. No physician had advised Jolly that her condition was work-related. There were treatment notes in 2013 and 2014 about the neck. Lion argued that the ALJ provided no clarification concerning the manifestation date, nor did he perform an appropriate analysis concerning Jolly’s entitlement to TTD benefits. On remand, the ALJ was directed to make the additional findings of fact concerning the cervical as requested by Lion. 2) The ALJ awarded TTD for a period of time that Jolly continued to work, without any analysis regarding whether she could perform her usual work, or had any restrictions, or the basis for such award. An appropriate analysis must be made. If TTD is not awarded, the ALJ must determine the date PPD benefits are to begin. No particular results were ordered by the WCB. Disposition: Vacated and Remanded ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: James River Coal Co., HealthSmart Casualty Claims Solutions, and Ky. Coal Employers’ Self-Insurance Fund v. Doyle Whitaker; No. 2017-CA-000525-WC; Jones; Rendered 1/25/2019; Not To Be Published. Procedural History: Appellants all petition for review of the WCB opinion reversing and remanding a decision by the CALJ to reopen the claim and deduct from the Fund’s liability a thirty per cent increase in benefits awarded to Whitaker pursuant to KRS 342.165 (1) (safety violations). Facts: You may remember this one from before. It has very limited relevant facts for this appeal. Whitaker was found at PTD and his award was increased pursuant to KRS 342.165 for James River’s failure to comply with several safety regulations. At the time of the award, James River was self-insured and paid benefits under the award until 12/30/2014 when it filed bankruptcy. Whitaker’s claim was referred to the Self-Insurance Fund’s third-party administrator, HealthSmart. The Fund’s MTR was filed on June 10, 2016 which was outside the four year statute of limitations under KRS 342.125. The Fund argued it was not responsible for payment of any penalties. In an Order dated 8/23/2016, the CALJ granted the MTR and agreed the Fund was not responsible for payment of any increased compensation awarded pursuant to KRS 342.165. On appeal, the WCB concluded the CALJ erred when he reopened the claim, and the CALJ incorrectly determined that the Fund was not required to pay the enhancement. Thus, the WCB reversed and remanded the claim to the CALJ for entry of an order denying the Fund’s MTR. This appeal followed. Issues: Was the Fund’s MTR, in which it asserted that it was not responsible for payment of the penalty under KRS 342.165, timely filed when it was filed outside the 4 years under KRS 342.125 Holding: No Reasoning: The Fund admitted it did not file its MTR until after the four-year statute of limitations under KRS 342.125. It argued however that the MTR was only technically made pursuant to KRS 342.125 as a means of getting the issue properly before the ALJ and argued the controlling statute was KRS 342.910(2) which provides “each guaranty fund shall not be liable for the payment of any penalties or interest assessed for any act or omission on the part of any person, including but not limited to the penalties provided under this chapter.” The Supreme court in McCoy Elkhorn Coal Corp v. Sargent, 553 S.W. 3d 802 (Ky. 2018) made it clear that the Fund is liable for the full amount of benefits James River provided to Whitaker before it became insolvent. Because the Fund’s legal position relative to proper interpretation and application of KRS 342.125 is untenable, no sufficient prima facie showing exists to have warranted reopening. Disposition: Affirmed ALJ: Hon. Robert Swisher, CALJ COA Panel: Clayton, Jones, and Nickell

Case Name, Citation, Author, Date Entered: Debra Lynn Stephenson v. Railcrew Xpress LLC; WCB No. 201801032; Stivers; Entered 2/22/2019. Procedural History: Stephenson seeks review of the ALJ decision dismissing her claim for an alleged work-related low back injury occurring in Kentucky. The ALJ determined the applicable statute of limitations to be KRS 342.670(2) which mandated that Stephenson must have filed her claim within two years from the date of injury. The claim was filed more than two years after the injury, and, she had received Kansas workers compensation benefits. Stephenson asserts the correct statute of limitations upon which the ALJ should have based his decision is KRS 342.185. Facts: On July 11, 2018, Stephenson fled a Form 101 alleging a June 26, 2017, lumbar spine work injury occurring in Pembroke, Christian County, Kentucky, while in the employ of RAILCREW. On 7/23/2018, RAILCREW filed a Form 111, denying the claim the running of the period of limitations or repose under KRS 342.185, 342.270, 342.316, or “other applicable” statute. No Kentucky benefits were paid on behalf of Stephenson, however, pursuant to Kansas law, $39,223.00 was paid as medical expense, and indemnity benefits were paid at the rate of $610.00 for a period of 3/8/2017 through 4/2/2017 for a total of $2266.00. The DWC did in fact notify Stephenson that it had been notified that the claim was denied by the employer and that the application must be filed within the two years of the accident or two years from the date of last voluntary income benefit. Stephenson testified she had never been a resident of Kentucky and further that her accident had occurred in Kentucky, and she had undergone surgery for the injury, she had filed a Kansas claim, still pending, and received Kansas benefits while off work. Stephenson moved to amend her claim to reflect an injury date of 6/23/2016, which was unopposed. The hearing on the statute of limitations issue was waived, and the parties filed simultaneous briefs. The ALJ applied KRS 342.670, which is entitled “Extraterritorial Coverage,” and dismissed Stephenson’s claim. Issues: When the claim for injury clearly occurred in Kentucky, did the ALJ err when he applied KRS 342.670, the “Extraterritorial Coverage” statute to determine the statute of limitations issue? Holding: Yes. Reasoning: Without question, KRS 342.670 only applies when an employee is injured while working in the course of his employment outside of Kentucky. It only applies to injuries occurring outside of Kentucky. This has been upheld by case law. The case is remanded for a determination of whether KRS 342.185 bars Stephenson’s claim. It is clear the claim was filed more than 2 years after the injury, however, based on pleadings contained in the record, there appears to be no dispute that Stephenson received some form of benefits from Liberty Mutual, apparently based on Kansas law, due to her injury. The ALJ must make a determination as to whether these benefits extended the statute of limitations beyond two years following the 6/23/2016 injury. The WCB noted that it knew of nothing requiring the income benefits which extend the limitation period contained in KRS 342.185 to be based solely on Kentucky law. Disposition: Vacated and Remanded ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Doug Trevino v. Transit Authority of River City; 2018-SC-000364-WC; Keller; Rendered 3/14/2019; TO BE PUBLISHED. Procedural History: Trevino appeals from the dismissal of his WC claim. Now, including the SCTKY, he garnered 0 votes throughout the entire process. An Appellate Trifecta? Facts: Trevino was operating a TARC bus on 11/9/13 when he was assaulted by a passenger resulting in injuries. TARC filed a special defense under KRS 342.610(3), which at the time provided: “[l]iability for compensation shall not apply where, occupational disease, or death to the employee was proximately caused primarily by voluntary intoxication as defined in KRS 342.501.010, or by his or her willful intention to injure or kill himself, herself, or another.” TARC argues that Trevino was the aggressor in the altercation and that he acted outside the scope of his employment. There was a surveillance video of the incident. The WCB and the COA determined there was substantial evidence to support the ALJ’s determination to deny benefits. Issues: Does the phrase “willful intent to injure” contained in KRS 342.610(3) preclude compensation in assault cases in which the claimant is the aggressor? Holding: Yes Reasoning: Trevino’s argument was based on 2 cases that were decided before the statute in effect on the date of injury. The ALJ specifically rejected Trevino’s self-defense claim and found that his actions were meant to inflict harm on his assailant, and that it was Tevino’s actions that caused the escalation. The reviewing court must not substitute its judgement for the trier of fact. The statute was clear that if a claimant’s aggressive or inflammatory behavior proximately caused violence, thus resulting in injury to the claimant, the claimant is not entitled to compensation. Disposition: Affirmed ALJ: Hon. Jeannie Owen Miller

Case Name, Citation, Author, Date Entered: Ryan Houston v. Greenup County Fiscal Court; WCB No. 201263966; Rechter; Entered 3/1/2019. Procedural History: Houston appeals from an Opinion on Remand dismissing his claim for a psychological injury which he raised in a motion to reopen. The ALJ dismissed the claim as barred by the statute of limitations. This is the third trip to the WCB for this case. Facts: Only the claim for the psychological will be discussed. Houston was assaulted on 10/31/2012, and resolved his claim on 11/25/2014 for injuries to the right ankle, left foot, and left knee. He worked until 8/2015. On 5/18/2016, Houston filed a MTR alleging his injuries had worsened following additional surgeries, and that he had developed a psychological condition which had not previously manifested. Greenup County argued Houston was aware of the claim at the time of the settlement agreement and failed to raise it. Following his initial injury Houston suffered sleeping problems and panic attacks for which he was treated, and prescribed medicine for PTSD, panic attacks, and anxiety. In 2016, Keith Haas, LCSW, noted Houston suffered PTSD from his work with the Sheriff’s department, which developed initially after his incident. Originally, the ALJ dismissed the claim on notice. The WCB remanded for the ALJ to determine whether Houston had a known psychiatric claim at the time of his settlement. On remand, the ALJ determined he did, and dismissed the claim on the statute of limitations. On appeal, the WCB vacated the decision, noting Mr. Haas’ records fall short of establishing Houston was diagnosed with a psychological condition prior to settlement of the claim. On remand, the ALJ was again directed to review the evidence and make a determination whether Houston has a psychiatric or psychological condition, which had manifested at the time of the settlement of his claim in November, 2014. On remand, the ALJ dismissed again, finding that because Houston had treatment for panic attacks, insomnia, nightmare, and sickness before the settlement, which Houston attributed to the incident, the claim was barred by the statute of limitations. The WCB now reverses and remands for a third time, now with directions. Issues: Was the fact that Houston experienced and was treated for some psychological symptoms immediately after the work-related incident sufficient to trigger the statute of limitations? Holding: No Reasoning: The ALJ had pointed to the fact that Houston experienced some psychological symptoms immediately after the accident and was prescribed a sleeping pill. The WCB states that this proof is insufficient, as a matter of law, to establish that the psychological condition was “known” to Houston. The mere presence of any psychological symptom prior to the settlement is insufficient to reject a claim for specific psychological or psychiatric diagnosis. The record was devoid of evidence to establish Houston was diagnosed with a psychological condition prior to the settlement. Notwithstanding that Houston suffered some psychological symptoms immediately after the accident, there was no medical opinion predating the settlement agreement which affirmatively linked these symptoms to his work accident. “Panic attacks, insomnia, nightmares and generally getting sick” are insufficient as a matter of law to establish Houston had a known, work-related psychological injury in 2014. Disposition: Reversed and Remanded ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: David Farm, Inc. /Lowell Farm, Inc. v. Christopher Glazebrook; WCB No. 200191697; Stivers; Entered 2/26/2019. Procedural History: David Farm appeals from an Opinion and Order resolving a MFD in favor of Glazebrook. David Farm argues the ruling of the ALJ that Glazebrook could be seen by Dr. Sean Wolfort was not a contested issue to be resolved by the ALJ, and, further, the ALJ erred in allowing Glazebrook to use a petition for reconsideration as an opportunity for the ALJ to rule on an issue “not preserved for decision.” Facts: Recital of the medical evidence in this MFD is not necessary here. The case was decided on procedural grounds, and the application of the regulations, specifically 803 KAR 25:010 which provides for a BRC Memorandum identifying the issues to be decided, and in particular (12) which states: “Only contested issues shall be the subject of further proceedings.” The Parties had a telephonic BRC. No Order was entered. The formal hearing was waived, and no briefs were filed. The ALJ ruled favorably for the Plaintiff. Then, in a petition for reconsideration, the ALJ ruled on another issue which the Employer argued was not before him for a decision. Issues: When there was no BRC Order identifying issues which were to be “the subject of further proceedings,” could the employer argue that the ALJ addressed an issue not preserved for a decision? Holding: No. Reasoning: Absent the parties identifying the contested issues in a BRC, the argument that the ALJ addressed an issue not preserved for a decision fails. The same holds true for the Order on Reconsideration. Without a BRC Order, nor a formal hearing, nor briefs, the ALJ was left to discern the contested issues without help from the Parties. He was free to rule on the Petition without any restrictions. Disposition: Affirmed ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: James Gilbert and Johnnie Turner v. Bluegrass Materials Co., Inc; WCB No. 201601673; Alvey; Entered 3/1/2019. Procedural History: Gilbert seeks review of the Opinion and Order rendered 9/27/2018 dismissing Gilbert’s claim. Gilbert filed a timely petition for reconsideration which was denied by order issued 10/15/2018. Gilbert’s Notice of Appeal was filed 2/1/2019, and Bluegrass filed its motion to dismiss the appeal as being filed untimely. Facts: This is an IMPORTANT case. It references the mandatory use of the LMS system. Turner claims to have not received the order denying reconsideration in the mail. It was not sent to him. He also stated that he did not check LMS every day, and receipt of the Order was overlooked. Issues: Does failure to timely monitor filings in LMS a sufficient reason expand jurisdictional deadlines? Holding: No Reasoning: The regulations are specific, and this issue is addressed in 803 KAR 25:011 (3) which specifically provides that the filing of all pleadings, motions, or orders through LMS became mandatory on July 1, 2017, except for self-represented litigants. Disposition: Dismissing ALJ: Hon. Chris Davis

Case Name, Citation, Author, Date Entered: Lexington Fayette Urban County Government v. Kristopher Branham; No. 2018-CA-001271; Goodwine: Rendered 3/1/2019; Not To Be Published. Procedural History: LFUCG appeals from an opinion of the WCB affirming the decision of the ALJ finding that Branham gave due and timely notice of a low back injury. The COA now reverses the WCB regarding due and timely notice with directions that the claim be remanded by the WCB to the ALJ for additional findings consistent with this opinion. Facts: We will limit the facts to the notice issue concerning the low back, as the award for the knees was not appealed. Branham was a firefighter who sustained two work-related injuries to his knees on 9/10/13 and 1/27/15. Branham began experiencing low back pain after a 6/16/16 surgery on his knee.In 2 IMEs, on 12/7/16 (Dr. James Owen), and 12/7/16 (Dr. Frank Burke), each doctor referenced low back pain, with radiculopathy, related to his gait from the knee injuries. Branham testified he never told this to LFUCG following the surgery or the medical diagnoses by Dr. Owen and Dr. Burke. Branham’s Form 101 was filed on 8/19/2015, and, on 7/18/2017, he filed a motion to amend the 101 to include the low back, attaching the reports of Dr. Owen and Dr. Burke. LFUCG challenged the findings of the ALJ on due and timely notice of the low back injury because the ALJ failed to analyze or explain why she made the finding. It also challenged the WCB determination that the findings were supported by substantial evidence. Issues: Did the ALJ sufficiently analyze reasonable inferences or lack thereof to be drawn from the evidence or explain why she made the finding? Did the WCB impermissibly weigh the evidence regarding whether Branham provided due and timely notice to LFUCG? Holding: The ALJ did not. The WCB impermissibly found that notice was provided as a matter of law. Reasoning: The ALJ failed to provide the parties with an adequate basis for requesting review. She failed to make factual findings of (1) when Branham first experienced low back pain; (2) when he became aware that his low back condition was work-related; nor, (3) when he advised LFUCG. She did not discuss whether the lengthy delay in amending his claim was reasonable or “as soon as practicable.” Reasonableness is a finding of fact and not a matter of law that must be made by the ALJ and not the WCB. The WCB impermissibly found the notice was due and timely as a matter of law. Disposition: Reversing in Part and Remanding ALJ: Hon. Jane Rice Williams COA Panel: Dixon, Goodwine, and Maze

Case Name, Citation, Author, Date Entered: Russell Watters v. Kentucky Transportation Cabinet; No. 2018-CA-000818-WC; Clayton, Chief Judge; Rendered 2/1/2019; Not To Be Published. Procedural History: Watters petitioned for a review of a WCB opinion affirming in part, reversing in part, and remanding the ALJ opinion and award which enhanced Watters benefits by thee three multiplier. Facts: The facts are very limited and the issue a very narrow one, so we will limit our review of the facts.Watters injured himself in a work-related accident where he struck his head. At the time of his hearing he had returned to full duty for about one month doing “exactly” the same job he performed pre-injury, and testified if his health held up he would be able to maintain his employment for the foreseeable future. Dr. Stephen Autry performed an IME and testified that Watters lacked the physical capacity to return to work in his previous position, but acknowledged that Watters had returned to his job, without restriction. His rating was 7%. Dr. Joseph Zerga conducted an IME, assigned a 0%, and no restrictions. The ALJ relied on Dr. Autry’s report, including that Watters did not retain the capacity to return to pre-injury employment and applied the three multiplier. He offered no explanation of any analysis of the fact that Watters had already returned to work without restrictions. The WCB reversed and remanded on the issue of the application of the three multiplier and found that Autry’s opinion only went to whether Watters retained the physical capacity to perform his job on an indefinite basis, which was not a consideration under the statute. Also, there was no other evidence in the record to support the conclusion that Watters lacked the current capacity to return to his pre-injury work. Issues: Does KRS 342.730(1)(c)1 necessitate an inquiry as to whether Watters would be able to execute his job on an indefinite basis? Holding: No Reasoning: The pertinent inquiry is solely whether the Claimant “retain[s] the physical capacity to return to the type of work that the employee performed at the time of injury [.]” The uncontradicted evidence here was that Watters had returned to pre-injury work, and performed “exactly” the same work upon his return with no accommodations and making a higher hourly rate than at the time of injury. He further testified that he would be able to maintain his employment for the foreseeable future. Disposition: Affirmed ALJ: Hon. Jonathan Weatherby COA Panel: Clayton, Acree, and Taylor

Case Name, Citation, Author, Date Entered: Daniel Lotter v. General Electric Company; No. 2018-SC-000079-WC; Memorandum Opinion Rendered 2/14/2019; Not To Be Published. Procedural History: ALJ Bolton found Lotter to be PTD, despite the fact that he continued to work at General Electric full time. General Electric appealed the award, and the WCB reversed and remanded for a proper consideration and application of Gunderson v. City of Ashland. The COA affirmed the WCB. This appeal followed. Facts: The relevant facts are simple. Lotter sustained two injuries at GE. After returning to GE following his second injury, Lotter had a new position he had bid on, for which he received extensive training. The ALJ found he could not perform the jobs he had before the injury, and that this job was in violation of the permanent restrictions assigned to him by the GR Medical Center. Lotter worked without accommodation in a skilled position, earning more than he had ever made previously (Approximately $75,000.00) The ALJ relied upon the Gunderson case, but failed to explain how Lotter fits, if he does, within the factors of that case. Issues: Did the ALJ err when he failed to provide findings as to why Lotter, whom he had found to be PTD, and, who had RTW full time, without accommodation, and was earning $75,000.00 per year, fit under the canopy of the Gunderson v. City of Ashland case? Holding: Yes Reasoning: Gunderson was a “factually unique” case wherein a quadriplegic police officer, was found to be PTD, and had RTW as a dispatcher following extensive remodeling and accommodation by the employer. The WCB noted only “an overly broad interpretation” of Gunderson and noted there were no factual findings as to how Lotter fit, if he did, within the factors of that case. Disposition: Affirmed ALJ: Hon. Steven Bolton

Case Name, Citation, Author, Date Entered: Glendrick Gardner v. LFUCG; WCB No. 201800357; Alvey; Entered 2/6/2019. Procedural History: Gardner appeals from a dismissal of his claim by the ALJ, and for review following a show cause order issued by the WCB. Gardner sought review of the ALJ Opinion and Order rendered 10/5/2018. Facts: These are simple and straightforward, confirming the WCB’s continuing position concerning late filings of mandatory documents which have mandatory time guidelines. The dismissal was entered on 10/5/2018. Gardner filed his petition for reconsideration on 12/10/2018. That was denied on 1/18/2018 as untimely filed. His appeal, filed within 14 days of the denial of the untimely petition for reconsideration, was not filed until 79 days from the dismissal. Issues: Was the appeal from an untimely filed petition for reconsideration, and not within 30 days of the ALJ’s order, properly dismissed? Holding: Yes Reasoning: Gardner had 14 days from the ALJ’s order to file his petition for reconsideration, or 30 days to file an appeal to the WCB. He failed to do either. The WCB had no jurisdiction to consider the appeal. Disposition: Opinion Dismissing Appeal ALJ: Hon. Christina Hajjar

Case Name, Citation, Author, Date Entered: Jose Felix Rivas v. Hussung Mechanical Contractors; WCB No. 201685867; Stivers; Entered 2/15/2019. Procedural History: Rivas appeals from an award for CTS, in which, however, the ALJ dismissed his claim for cumulative trauma cervical spine injuries due to lack of notice. Facts: We will only discuss the facts that relate to the issue of notice. The June 20, 2016 Form 101 alleged Rivas sustained injuries to his back and neck on 12/17/2015, while in the employ of Hussung. It alleged “repetitive cumulative trauma.” Rivas had been a pipefitter since 1997, working for Hussung from 5/2014 through 12/31/2105, when he was laid off. Rivas stated in his deposition that he told his foreman in 12/2015 about his neck and work-relatedness, and then later answered “No” to the question about telling Hussung, explaining at his hearing that when he answered “No”, he was referring to telling the higher ups, and not his foreman. Dr. El-Naggar thought his neck condition was work-related due to repetitive cumulative use of the neck, as did Dr. Bruce Guberman. The ALJ ruled that Rivas admitted in his deposition that he never told his employer that the cervical spine injury was work-related, and that his testimony at the hearing was contradictory, and that he failed in his burden to establish that notice was given as soon as practical for the cervical spine. The WCB vacates the dismissal of the alleged cumulative trauma cervical spine injury claim and remands for additional findings. Issues: Did the ALJ make sufficient findings concerning notice for the alleged cervical spine cumulative trauma claim? Holding: No. Reasoning: In cumulative trauma claims, the date of the injury is when the disabling reality of the injury becomes manifest. Therefore in injury claims, allegedly caused by cumulative trauma, the date for giving notice and for clocking the statute of limitations is triggered by the date of manifestation. A worker is not required to self-diagnose the cause of a harmful change as being a work-related cumulative trauma injury. The ALJ cited conflicting testimony, but his findings were incomplete. He failed to first determine the date of manifestation which is the point in time Rivas was then required to provide notice of the cumulative trauma work injury. On remand, the ALJ, using the medical evidence of record must make a determination as to if and when Rivas was informed by his physician he has sustained a cervical spine injury and that it is work-related. Both conditions must be met before the obligation to provide notice arises. Disposition: Vacated in Part and Remanded ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Sarah Toole v. Ford Motor Company Ky. Truck Plant, et al; WCB No. 2011000134; Rechter; Entered 2/8/2019. Procedural History: Toole appeals from an Opinion and Order resolving a MFD in favor of Ford. Toole argues the ALJ erred in not finding proposed surgery is not related to her work injury. Facts: The relevant facts are brief. Toole filed a claim alleging a cervical injury on 9/1/2010 from repetitive activity. Dr. John Mahan performed a discectomy and fusion at C3-C4 on 4/28/2011, and a second one at C5-6 on 1/31/2012. The claim was settled based on 13% on 8/16/2013. The agreement listed the 13%, and listed the diagnosis as C3-C4 disc herniation with moderate to severe degree of foraminal stenosis and spinal stenosis at C3-C4. Toole had sustained a previous work injury in 2005 wherein Dr. Mahan performed a fusion at the C4-5 level in 2005. Ford paid for the surgery and TTD, although no formal claim was ever filed. This MFD was filed on 3/28/2018 contesting a fourth cervical surgery, this one to remove a plate at C5-6, and an anterior discectomy and fusion at C6-7. Neither Toole nor Dr. Mahan filed any evidence in the dispute. Dr. Leon Brooks performed a peer/medical record review on 2/26/2018, and concluded the proposed surgery was not causally related to the 2010 injury, and the only compensable level related to the 2010 injury is C3-4, and the only surgery related to the 2010 injury was the C3-4 fusion. The surgeries and injuries at C4-5 and C5-6 were not causally related to the 2010 injury. The proposed surgery was not work-related. In an IME report, Dr. Robert Sexton stated the proposed surgery was not reasonably medically necessary nor related to work activities at Ford. The ALJ noted that Dr. Mahan had not filed any report supporting his proposed surgery, and that while the case was settled, the issue of work-relatedness had not been formally adjudicated. She noted however the proposed surgery was not at the level (C3-C4) listed in the agreement. She denied the surgery based on Drs. Sexton and Brooks. Issues: Was the denial of the proposed surgery at C5-6 properly denied by the ALJ when the original settlement agreement referenced injury to C3-4? Holding: Yes Reasoning: Several arguments were rejected by the WCB. First, even though the settlement agreement had referenced multiple injuries to the cervical spine, Toole could not rely upon the 2005 surgery to advance her case as to work-relatedness. She had failed to file a claim for that injury, and it was time barred. Second, she presented no evidence relating the current proposed surgery to the 2010 injury. Some medical evidence was necessary to link the proposed surgery at the C3-4 level and the C5-6 and C6-7 levels. Third, Toole is correct that settlement agreements carry the force and effect of a judgment, and this settlement did in fact establish the 2010 injury as work–related, however, the settlement agreement does not establish the work-relatedness of future treatment. Lastly, Toole argued that Dr. Sexton was not an independent examiner because he was not a “university evaluator.” In WC parlance, the term “independent medical examiner” distinguishes a physician who offers an opinion for litigation purposes from a treating or consulting physician who offers an opinion for purposes of treatment. Physicians hired by Plaintiffs and Defendants alike are independent examiners if they offer opinions for purposes of litigation rather than treatment. Disposition: Affirmed ALJ: Hon. Stephanie Kenney

Case Name, Citation, Author, Date Entered: Centimark v. Christopher Miranda; WCB No. 200888797; Rechter; Entered 2/1/2019. Procedural History: Centimark appeals from an Order in a MFD, which found in Centimark’s favor, that Miranda’s caregiver was not entitle to vacation pay. Centimark claimed there was a misrepresentation of the original litigation of the claim in the ALJ’s order. The WCB said there was no misrepresentation of the original litigation, and affirmed. Facts: The only issue of impact to anyone other than the litigants in this case is whether or not the caregiver for Miranda was entitled to vacation pay. Miranda was rendered a quadriplegic in a MVA. He stepfather is his caregiver. In the original award, ALJ Hayes used a formula and arrived at $17.50 per hour for caregiver services in the area, or $700.00 per week. The caregiver in this MTR requested vacation pay. The ALJ denied the request. Issues: Was the caregiver entitled to vacation pay? Holding: No Reasoning: The caregiver for Miranda was not an employee of Centimark, nor was there a contract for services between Centimark and the caregiver to provide services. N.B. During the litigation of this dispute, Centimark and the caregiver entered into a contract where he would be considered a vendor/independent contractor and paid a weekly rate of $1100.00. Disposition: Affirmed ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: Davis Bussey & Linda Polley v. KCTCS; WCB No. 201671779; Alvey; Entered 2/1/2019. Procedural History: In a case likely to be appealed, Bussey, attorney for Polley appeals from the order of the ALJ limiting his attorney fee to $11,794.59. Facts: The relevant facts are very limited. Bussey represented Polley in her WC claim. The Form 101 was filed on December 19, 2017. The Form 109 Attorney Fee Election Form was executed on December 6, 2017. The contract for representation was not executed until August 31, 2018. Notably, the statute on attorney fees was amended on July 14, 2018, and Bussey’s contract was not entered into until after that date. Bussey filed a motion for approval of an attorney fee in the amount of $17,839.00, based upon the total payout of Polley’s award in the amount of $140,891.75, attaching the Form 109 and the employment contract. The ALJ refused to approve the attorney fee requested, and awarded a fee of $11,794.59 based upon the KRS 342.320(2) as it existed at the time the claim was filed. The ALJ found that Bussey and Polley had entered into an implied contract for services, at a minimum, when the Form 101, and then, the Form 109, were signed. Issues: Did the ALJ err when he awarded attorney fees based on the limits imposed by KRS 342.320(2), rather than the increased limits of the statute as amended on July 14, 2018, when the contract was not signed until August 31, 2018, after the effective date? Holding: No Reasoning: Approval of attorney fees falls within the discretion of the ALJ. He is not required to award the full amount requested. Prior to July 14, 2018, attorney fees were limited to a maximum of $12,000.00. On July 14, 2018 the cap was raised to $18,000.00. Changes were also made to the calculation of the fees. The ALJ did not err in determining there was an implied contract for services between Bussey and Polley in effect long before the statute was amended. The amended version of the statute did not specifically state it is either remedial or retroactive. The WCB then relied on Hamilton v. Desperado Fuels, Inc., 868 S..2d 95, (Ky. 1993) which held that what constitutes an authorized attorney fee for prosecuting a claim should be determined by the law in effect on the date of injury. It was within the discretion of the ALJ to determine a contractural relationship existed when the claim was filed. Disposition: Affirmed ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: Shareef Martin v. Community Transitions; WCB No. 201664679; Stivers; Entered 2/1/2019. Procedural History: Martin seeks review of the Award of TTD, PPD, and medicals for this work-related low back injury. The ALJ awarded PPD, and enhanced benefits by the three multiplier, however, declined to award rehabilitation benefits pursuant to KRS 342.710(3). Martin maintains the statute compels an award of rehabilitation benefits since the ALJ specifically found he was unable to perform the work he was performing as a direct support person when he was injured. Facts: The facts are rather straightforward in this limited issue case. Martin was 35 years old, with a GED and CNA degree when he was thrown to the ground by a patient which resulted in low back injuries that required several surgeries. He earned $9.25 per hour, but worked weekends, in house, which would mean approximately 64 hours of pay. His jobs involved standing, bending, lifting, fixing meals, and cleaning, and other activities. With his O/T he earned between $30,000.00 and $40,000.00. After the injury, he returned to Community in a sit-down job, earning $20,000.00. He was discharged for reasons other than the injuries. Dr. Thomas Menke assigned a 10% with permanent lifting restrictions of no more than 20 pounds occasionally and 10 pounds frequently. He needed to be able to sit when needed, thus he needed a job that would allow him to sit most of the time. Dr. Travis Hunt assessed a maximum lift of 10 pounds. He should only perform sedentary jobs. Walking or standing on only a temporary basis. He assigned 15%. The Vocational Rehab Assessment of Dana Ward concluded Martin did not have the physical capacity to return to his former job, and he needed a sedentary job. He was qualified to work as a receptionist, and would be better qualified after he completed a computer course. Records submitted by Community showed Martin worked overtime not less than 22 hours per week.The ALJ awarded 10%, and concluded Martin could not return to the work at the time of injury, and increased the benefits by the three multiplier. He denied Vocational benefits because he felt Martin had the physical ability to do work that would pay him in the range of $9.25 per hour. He determined “Martin has the education and physical capacity to return to suitable employment.” Issues: Was the ALJ’s analysis sufficient and comport with the applicable case law? Holding: No. Reasoning: The fundamental purpose of vocational rehab is the restoration of an injured worker to gainful and suitable employment. Although KRS 342.710 specifically provides that a person who is unable to perform work for which he has previous training or experience is entitled to vocational rehab services, that provision cannot be viewed in isolation. One of the stated goals of the statute is to return the injured worker to “suitable, gainful employment.” The Supreme Court has said this means “attempting to achieve a reasonable relationship between a worker’s pre- and post-injury earning capacity…” Here, the ALJ did not address the work history listed in the Form 104. The WCB was notably forceful because in denying the Vocational Rehab, the ALJ did not even reference the stringent restrictions assigned by the doctors. The ability to return to work at a similar wage should not, per se, preclude him from entitlement to benefits. His post-injury work capacity, based upon physical restrictions, must be given significant weight. The ALJ also failed to address the fact that Martin was incapable of working the extra hours in order to earn additional wages. Even though his hourly rate may increase, there was no analysis addressing the amount of available weekly overtime in those positions. On remand, the ALJ must consider Martin’s ability to work substantial overtime that might restore Martin to comparable pre-injury earnings. At a minimum, the ALJ should have considered whether a vocational evaluation under KRS 342.710 (3) was appropriate before denying benefits. Disposition: Vacating in Part and Remanding ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Washington School District v. James Logsdon; No. 2018-CA-000217-WC; Lambert, J.; Rendered 2/8/2019; Not To Be Published. Procedural History: Washington petitions the COA for review of the WCB decision reversing and remanding the ALJ decision in Logsdon’s MFD related to proposed left knee surgery. The ALJ had denied Logsdon’s request for the proposed surgery. Facts: Logsdon’s left knee injury was settled by negotiation, with Logsdon retaining his rights to future medicals, voc rehab, and the RTR. Washington moved to reopen with a MFD in 6/2015 contesting a proposed left knee surgery by Dr. Daniel Hunt, relying on the U/R report of Dr. Peter Kirsch, who stated the effects of the injury ceased by 3/10/2008, and any issues now were simply the results of end stage arthritis. After a BRC in September, 2015, the matter was to be resolved by agreed order, which was never tendered. In June, 2016, after the MFD was never resolved, Washington moved to join Dr. Mark Duber, now the treating doctor, who recommended knee replacement surgery, stating Logsdon’s condition was exacerbated by the work injury. His report, filed in the case, confirmed this. Washington filed Dr. Rick Lyon after an IME. He noted a football injury to the knee in 1980, and the work injury and surgery. The proposed knee replacement surgery and arthritis were due 10% to the work event, and 90% to the obesity and other injuries. The ALJ relied on Dr. Lyon and found the contested surgery not reasonable and necessary for the cure and/or relief of the work injury, and therefore, non-compensable. Logsdon appealed to the WCB. The WCB reversed and remanded, finding that the second BRC order did not identify causation and a pre-existing active condition as issues, and therefore were not properly preserved for the ALJ to consider, even though the 2015 order had listed them. Further, even if they had been preserved, Dr. Lyon apportioned 10% of the arthritis to the work injury, and because the ALJ accepted Lyon’s report in its entirety, the surgery was compensable under Derr Construction. Issues: 1) Did the ALJ consider issues outside the scope of the BRC order? 2) Did the WCB correctly apply the law in determining the ALJ should have found the proposed surgery to be compensable? Holding: 1) No 2) Yes Reasoning: 1) The original order listed work-relatedness as a contested issue, but this was omitted on subsequent orders, which listed only reasonableness and necessity. However, the original MTR made it clear that the MFD was based on whether the proposed surgery was reasonable and necessary “for the cure and/or relief of the work injury of 11/5/07.” The WCB erred in this regard. 2) The use of Derr Construction was proper. The ALJ specifically accepted Dr. Lyon’s opinion that the need for surgery arose at least in part from Logsdon’s 2007 work injury. Had Dr. Lyon not included the statement that the need for surgery, even minimally, arose from the work injury, the result would be different. Because there is no real dispute that the surgery was reasonable and necessary, but rather the dispute centered on whether it was necessitated by Logsdon’s work injury, the WCB did not commit error. Disposition: Affirmed ALJ: Hon. Jonathan Weatherby COA Panel: D. Lambert, J. Lambert, K. Thompson

Case Name, Citation, Author, Date Entered: Genesis Healthcare, LLC v. Regina Morton; WCB No. 201698598; Stivers; Entered 12/28/2018. Procedural History: Genesis appeals from an award of TTD, PPD, and Medical benefits to Morton. The sole issue on appeal is whether the ALJ abused his discretion by not allowing Genesis to take the deposition of Morton’s current supervisor (another employer). Facts: The relevant facts are brief. The ALJ awarded Morton 25% plus the 3 multiplier, finding she could not return to do her previous position at the time of injury which involved lifting. The current job for a different employer involved no lifting whatsoever. The May 22, 2018 Hearing Order indicated proof was left open “for the filing of the Dr. Kriss deposition transcript, for evidence relating to current wages and related information provided by the Plaintiff in response to the Motion To Compel only.” (My emphasis) Subsequently, Counsel for Genesis filed a motion requesting a telephonic status conference in order to discuss the taking of a deposition of a representative from Morton’s current employer “to provide testimony related to the personnel materials recently filed as evidence.” It represented that counsel for the Plaintiff did not believe the order on proof time permitted the scheduling of this deposition. The ALJ entered an order that left proof time open for an additional seven days “for the purpose of filing the Plaintiff’s current job description and documents related to the Plaintiff’s current wages only.” Genesis then filed a statement by Morton’s current supervisor that no written job description existed. After the Award, Genesis” petition for reconsideration seeking additional discovery was overruled. Genesis now asserts the ALJ’s exclusion of the supervisor’s deposition constituted an abuse of discretion and it requests the WCB to reverse the award of the 3 multiplier and to re-open proof. Issues: Did the ALJ abuse his discretion when he refused to allow the taking of the deposition testimony of Plaintiff’s current supervisor from a different employer? Holding: No. Reasoning: The ALJ has broad discretion as fact-finder and gatekeeper and arbiter of the record both procedurally and substantively. The last order clarifies the purpose behind leaving proof time open for an additional seven days and is silent regarding the taking of a deposition despite the motion that specifically requested that he do so. The verbatim discussion from the hearing contains no reference to a deposition. There is no indication that the ALJ intended is any of his orders to allow the deposition. Even if the ALJ was in error, it is not substantial as the abundance of the evidence supported the application of the 3 multiplier, and importantly, Morton testified she is able to perform her job at the new employer where the heaviest items she lifted are spoons and forks. Disposition: Affirmed ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Ivan Johnson v. Haier US Appliance Solutions; WCB No. 201660723; Alvey; Entered 1/18/2019. Procedural History: Johnson appeals from the Opinion and Order finding he failed to prove his bilateral upper extremity conditions were due to his work activities with Haier, and his claim was dismissed by the ALJ. Facts: Johnson’s Form 101 alleged he developed bilateral wrist and hand numbness caused by repetitive trauma while working for Haier as an assembly line worker. He provided 11/17/2016 as the date of injury. Johnson started at Haier on 10/1/2015. The first 3 of his jobs there required repetitive use of both his upper extremities and pneumatic tools. His last job, began in August, 2016 involved use of his hands attaching a hose to a dishwasher every 17 seconds, performed about 1200 times per day. There was no use of an air gun. Johnson had previously been diagnosed with Type II diabetes when he was 40 (born June, 1962, so 55 at time of injury), and takes medication as well as an injection in the evening. There were no issues with upper extremities prior to employment. He had surgeries to his feet unrelated to his diabetes. Johnson had complained previously to Haier about his hands, but those conditions resolved. His symptoms worsened however and by 11/17/2016 he could not close or use his left hand, and his thumb was severely calloused. Haier referred him to Dr. Moreno where testing confirmed bilateral carpal and cubital tunnel syndrome. Dr. Moreno performed surgery to the right, which provided no relief, so Dr. Moreno determined Johnson was not a candidate for surgery to the left. Johnson continues to experience bilateral hand pain and numbness, and lack of any grip strength. When Johnson was treated thru the medical unit at Haier, notes indicated the presence of the Type II diabetes, insulin dependence, and taking Metformin. Dr. Moreno’s diagnosis was bilateral CTS, bilateral cubital tunnel syndrome, and Type II diabetes mellitus. He checked “Yes” to the question of whether the work event is the cause of the impairment found, and “yes” to the question of whether any part of the impairment is due to a cause other than the work event. The diabetic neuropathy was a key contributing factor to his condition. The repetitive work contributed to the neuropathy, and “in my experience, patients acquire this degree of severe compression neuropathy over more than 10 years.” Moreno assessed 23% for the right UE and 29% for the left UE, for a combined 45%. He declined to apportion any to a prior active condition. Johnson also filed Dr. David Changaris after an evaluation. Changaris diagnosed: 1) bilateral CTS, status post-surgery, “due to the work-related repetitive motion injury on record;” and, 2) pain “due to the work-related repetitive motion injury of record.” He assessed 30% for each upper extremity, and 3% for pain, for a total combined 38% WPI. Causation was solely work-related. The Haier in-house physician, Dr. Dustin Hamilton, opined that the job was not consistent with either CTS or cubital tunnel, and was not possible due to the time on the job. He thought there was some component of diabetes in the situation. Haier filed the report of Dr. Thomas Gabriel who diagnosed: 1) diabetic peripheral neuropathy; 2) chronic median nerve neuropathy bilateral wrists, status post right carpal tunnel release; and 3) chronic ulnar nerve neuropathy, bilateral elbows, status post right cubital tunnel release. He assessed 16% for the RUE and 17% for the LUE for a combined 30%, with restrictions, however, he emphasized the impairment rating and permanent restrictions were unrelated to employment with Haier are were due to Johnson’s overall medical condition of diffuse diabetic peripheral neuropathy. The ALJ, despite finding Johnson a credible witness, relied on Dr. Gabriel’s opinion in denying the claim. Also significant was Dr. Moreno’s statement that one would expect such a significant compressive neuropathy to take 10 years to develop. Dr. Changaris was rejected because he failed to discuss Johnson’ diabetic peripheral neuropathy. Issues: Was the opinion of Dr. Gabriel substantial evidence in this dismissal of Johnson’s claim for bilateral CTS ad cubital tunnel? Holding: Yes Reasoning: The evidence supported the finding that Johnson’s bilateral upper extremity complaints were the result of diabetic peripheral neuropathy. Johnson had treated for diabetes several years before employment with Haier. The ALJ also noted Dr. Moreno’s opinion that one would expect this severe compressive neuropathy 10 years to develop, not a year and 4 months. Also, the releases did not provide improvement, suggesting another proximate cause of the neuropathic pain and sensory loss. Lastly, the ALJ was not required to determine whether Johnson’s diabetic condition was symptomatic and impairment ratable prior to the work injury. This was not a case where the ALJ concluded Johnson sustained a permanent, work-related injury and then was required to engage in a carve-out for pre-existing active impairment pursuant to Finley. Disposition: Affirmed ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Mary Harris and Johnnie Turner v. Harlan City School Assoc.; WCB No. 201595827; Alvey; Entered 1/25/2019. Procedural History: Harris appeals the Opinion on Remand finding she failed to prove she sustained a temporary lumbar injury due to a 1/15/2105 work incident. Facts: Harris filed a Form 101 alleging injuries to her “back, SI joint, legs, ankles, and feet” when she fell from bleachers after being pushed. Prior to this she had surgery to her low back in 2014 for low back and right leg pain, which had essentially resolved. In her original opinion on 9/25/2017, the ALJ dismissed Harris’ claim in the entirety, relying on Drs. Tutt and Travis. The WCB affirmed the ALJ’s dismissal for permanent injuries, however, remanded the claim to address whether Harris had sustained any temporary injuries and would be entitled to TTD and medical benefits. The ALJ was also directed to address Harlan’s motion to amend its stipulation for payment of TTD benefits paid. The ALJ entered an order reflecting the TTD benefits paid, the amounts, and the dates. The ALJ also entered an Opinion on Remand finding no temporary lumbar injury not related to the prior discectomy. The WCB upheld that there was no evidence to support even a temporary lumbar injury as a result of the work injury. The WCB, however, vacated and remanded because the ALJ failed to address whether the Claimant had sustained any temporary injuries to any body part other than the lumbar spine. Harris had claimed injuries to her “back, SI joint, legs, ankles, and feet” in her Form 101. Plus, examination records at the time of the work event revealed swelling, bruising, and abrasions. There was no evidence of any permanency to any other body part. Issues: Was the failure of the ALJ to address whether Harris sustained a temporary injury to other body parts in his Opinion on Remand cause for remand? Holding: Yes Reasoning: There were objective findings immediately following the work event which confirmed injury to other parts of the body which the ALJ failed to address. Citing Robertson v. United Parcel Service, the WCB noted that it has consistently held 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 payable. Disposition: Affirmed in Part, Vacated in Part, & Remanded ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Toyota Motor Manufacturing of Kentucky, Inc. v. Roberta Anderson; WCB No. 201692443; Alvey; Entered 1/25/2019. Procedural History: Toyota appeals from an award of TTD, PPD, and medical to Anderson for a work-related right hip injury caused by placing all her weight on her right leg while performing job duties on an assembly line at Toyota. Facts: Anderson filed her Form 101 alleging a right hip injury on 1/18/2016 while working for Toyota. At the time of the accident, she was a team leader, but on the day of the accident she was working on the assembly line due to a personnel shortage. The job required her to stand primarily on the right leg, putting more pressure on the hip. After reporting the injury, she was given PT, placed on light work, and continued until November, 2016, when she was sent home. She receives LTD benefits. She continues with PT, and surgery is a possibility. Anderson saw Dr. James Owen for an evaluation. He diagnosed persistent piriformis syndrome, weakness of the right piriformis abductor muscle group associated with marked tendinosis over the SI joint posteriorly, and associated paraspinal muscle spasm. There was also a right hip labral tear. He did not believe Anderson was at MMI, but assessed a 6% rating pursuant to the AMA Guides. Dr. Daniel Primm evaluated Anderson at Toyota’s request. He diagnosed her with nonspecific right hip pain, and noted she has probable psychosocial overlay versus somatization. He saw no permanent change in the human organism, no evidence of an injury, she had no impairment rating, and needed no additional treatment. MMI was six months after she delivered her child. (December, 2016) Dr. David Jenkinson evaluated at Toyota’s request. He felt she had no objective abnormality to substantiate a diagnosis. She had n current condition related to work, and required no additional treatment. The ALJ found that Anderson sustained a work-related injury, awarded TTD, and PPD based upon the 6% assessed by Dr. Owen, with the three multiplier. On Reconsideration, the ALJ confirmed the use of the “DRE Model” used by Dr. Owen as appropriate, and noted, that even though Dr. Owen did not believe Anderson was at MMI when assigning the rating, the Defendant’s Evaluator, Dr. Jenkinson, had found Anderson at MMI on 9/25/2017, the date the ALJ used. Issues: Was the rating by Dr. Owen, relied upon by the ALJ, within the AMA Guides, and, was the use of Dr. Owen’s rating, even though he indicated Anderson was not at MMI, within the Guides? Holding: Yes. Reasoning: The date of MMI chosen by the ALJ was based on medical testimony by Dr. Jenkinson, and was one month before Dr. Owen saw her. Dr. Primm’s date of MMI, was also prior to Dr. Owen. The ALJ simply rejected the date of Dr. Owen, as he was allowed to do, and used Drs. Jenkinson’s and Dr. Primm’s dates. Dr. Owen’s rating was not challenged either by cross-examination or other medical evidence of record, the proper methods for impeaching a physician’s methodology. The rating was “grounded in the Guides”, and the ALJ’s reliance was not beyond the scope of his discretion as a fact-finder or unreasonable as a matter of law. [The rating used by Dr. Owen was based on the DRE, as found in Chapter 17 of the Guides, specifically, Section 17.2j (page 525) due to ligamentous instability] Disposition: Affirmed ALJ: Hon. Jeffrey Layson

Case Name, Citation, Author, Date Entered: Chris Mixon v. Anything Groes/Lustig Enterprises, Michael Cronen D.O.; WCB No. 201176738; Rechter; Entered 12/14/2018. Procedural History: Mixon appeals from an Opinion and Order in a MFD wherein the ALJ determined quarterly office visits and two urine tests per year are reasonable. Mixon argues the ALJ erred in denying monthly office visits with Dr. Cronen and in limiting the frequency of urine drug testing. Facts: Mixon settled his claim for low back injury. Subsequently, Anything Groes filed this MFD arguing monthly office visits, quarterly drug screens and continued use of compound creams and BioFreeze are not medically reasonable or necessary for treatment of Mixon’s work injury. Dr. Cronen is Mixon’s pain management doctor. Mixon visits monthly to monitor the use of opioids medications. Cronen indicated Mixon had been stable on his medications and believed that monthly visits are necessary, based upon the chronicity of his condition and his long term use of opioids. Cronen ordered a minimum of 4 random drug tests per year to ensure compliance and to identify the use of any illegal substances. Dr. Timothy Kriss performed an IME. Mixon demonstrated no signs of symptom magnification, malingering, nor overt secondary gain. There was no evidence of substance abuse. For that reason, Kriss recommended two random urine drug tests per year so long as compliance continues. He also recommended office visits every four to six months, as well as random, as opposed to scheduled, urine screens. If there was any sign of illegal drug use the prescriptions involving controlled substances should cease. Dr. John Rademaker conducted a U/R. Since Mixon had been compliant, monthly office visits were not medically necessary nor reasonable. Mixon could be seen every two to three months. One or two random drug screens per year were sufficient. The ALJ, relying on Drs. Kriss and Rademaker, ordered quarterly office visits, assuming no new symptoms, side effects, etc., and two drug screenings per year unless Mixon presented with actual issues of concern regarding compliance with and use of narcotic medicine. Issues: Did the ALJ err in limiting the frequency of Mixon’s office visits and urine screens? Holding: No Reasoning: The testimony of Drs. Kriss and Rademaker were substantial evidence. The ALJ acted within his discretion. There was no evidence of abuse of the prescription drugs. Mixon had been a model patient. Disposition: Affirmed ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: Ford Motor Company v. Regina Teno; WCB No. 201301127; Alvey; Entered 12/21/2018. Procedural History: Ford appeals from an Order on Remand which found that Teno sustained work-related injuries in the course of her job at Ford and awarded PPD and medical. Ford argues the ALJ exceeded the directions of the Supreme Court on remand, and addressed issues not on appeal. Facts: We brought you this case 3 times before. Now it is on remand from the Supreme Court. The Supreme Court upheld the COA reversal of the WCB, the COA determining that the ALJ had misconstrued the evidence of one of the physicians. The report in question was that of Dr. Warren Bilkey, and the COA found that the analysis by the ALJ led to the inevitable conclusion that the ALJ misconstrued and misunderstood the evidence before her. The ALJ did not make findings appropriately addressing Teno’s theory of the case. The Court did not order the ALJ to enter a finding for Teno. On remand, the ALJ determined that Teno did in fact sustain work-related injuries on 2/8/2013, being persuaded by the opinion of Dr. Bilkey. On appeal, Ford argues the ALJ erred in vacating the previous ALJ’s decision and exceeding the direction of the Supreme Court on remand in deciding issues not specifically preserved. The ALJ also erred by ignoring the previous procedural history of the case, specifically Judge Miller’s previous decision. Issues: Did the ALJ err by failing to follow the order of the Supreme Court, specifically by ignoring the previous decision of ALJ Miller? Holding: No Reasoning: When the COA reversed the WCB, it essentially vacated the ALJ decision. The ALJ was not bound by her decision. No particular result was directed by the courts, and the ALJ was required to render a decision based upon a correct interpretation of all of the evidence. The ALJ performed the correct analysis, and did not act outside the discretion afforded to her. Disposition: Affirmed ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Leonard McKenzie v. DOT Office of General Counsel; WCB No. 201767561; Rechter; Entered 1/18/2019. Procedural History: McKenzie appeals from an Opinion and Order dismissing his claim for failing to establish a work-related injury. McKenzie challenges the ALJ’s reliance on the opinion of Dr. Phillip Corbett. Facts: On 7/14/2017, McKenzie stepped in a hole, heard his right knee pop, and experienced immediate pain. He completed his Friday work behind a desk, and did not work over the weekend. He visited Dr. Steven Carawan the following week, and although his records were for some reason not submitted, he took X-rays of the knee, suspected arthritis, and requested an MRI. About a week later when McKenzie raised his leg to rest it on a four wheeler, he heard a pop and went to the ground. The following week (8/4) McKenzie returned to Dr. Carawan who diagnosed right knee effusion and suspected an acute meniscal tear. He requested a MRI which was denied by WC. Following the denial, Dr. Carawan again diagnosed the tear and recommended a diagnostic arthroscopy debridement of chondromalacia and possible meniscectomy. Dr. James Owen performed an IME. He reviewed some records, agreed on an MRI, suspected a meniscus tear, and did not feel McKenzie was at MMI, but assigned 7% for antalgic gait. Dr. Phillip Corbett performed an IME, including a review of all of Dr. Carawan’s records. His analysis of Carawan’s notes was that the complaints were consistent with exacerbation of underlying osteoarthritis and the possibility of a posterior horn tear of the medial meniscus. Corbett diagnosed mild osteoarthritis of the right knee and a possible tear of the medial meniscus. On causation, he noted the absence of an MRI immediately after the work injury made it difficult to pinpoint the exact origin of the condition. The changes in condition cannot not now be separated. Due to lack of swelling, and only a trace of effusion after the first event, it made it less than medically probable that the acute tear occurred after the work incident. He thought it was reasonable to assume any meniscal pathology was definitely worsened by, but possible originated with, the second event at home. Eventually, a right knee MRI was performed on 2/22/2018 which revealed a tear of the posterior horn medial meniscus with associated medial compartment osteoarthritis, chondromalacia patella with joint effusion, patellar tendinosis, and a Baker’s cyst. Again, Dr. Carawan recommended surgery and related the injury was “consistent with his on-the-job injury.” The ALJ relied on Dr. Corbett that the symptoms following the original incident were minimal and the causal relationship found by Drs. Carawan and Owen lacked a sufficient basis in objective medical evidence and dismissed the claim. Issues: Did Dr. Corbett’s opinion constitute substantial evidence upon which the ALJ could rely in dismissing this claim? Holding: Yes Reasoning: Dr. Corbett reviewed all of Dr. Carawan’s notes. While acknowledging Dr. Carawan’s opinion, Corbett found it less than medically probable that the acute meniscal pathology resulted from the 7/14/2017 incident, and offered his explanation. Because no MRI was performed immediately after the work incident, it is impossible to specifically identify the exact cause of McKenzie’s condition. Disposition: Affirmed ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Tony Sexton v. Resource MFG.; WCB No. 201772509; Alvey; Entered 1/11/2019. Procedural History: Sexton appeals from an order wherein the ALJ found that Sexton failed to prove he sustained a work-related left knee injury despite the fact he was involved in a work-related incident on that date. Facts: Sexton alleged a left knee injury occurring on June 26, 2017, in a twisting incident while working for Resource, which provided employees to work at the Toyota plant in Georgetown. The injury was reported, and he worked light duty for a few weeks after the accident until Dr. Michael Heilig took him off work. Sexton admitted to previous knee problems in 2016 which were temporary in nature. These symptoms were much worse. Sexton filed the records of Dr. Heilig, who diagnosed left knee medial meniscus, lateral meniscus and ACL tears following an MRI, and recommended surgery. Sexton filed Dr. Anthony McEldowney who diagnosed a left ACL tear caused by the injury. If there was no surgery, the rating was 7%. Sexton was given restrictions. Sexton had a 0% prior to the injury. Sexton was able to function without a completely functional ACL until the June 2017 incident. Further Dr. Heilig notes revealed a six year history of left knee problems, and had been wearing a brace. He had complained of knee catching and giving away of the knee. In 2012, Sexton reported pain and swelling with a loud pop 2 days before an office visit.Dr. Rick Lyon examined Sexton for Resource and agreed with the ACL tear, but attributed it to a 2012 injury, which had progressed. He had a 10% rating which would be reduced to 4% if there was surgery. His tears were prior to the injury, and Sexton was a candidate for surgery 8 months prior to the incident.The ALJ found Sexton’s testimony inconsistent with the medical records, and his symptoms were consistent with pre-injury symptoms. The ALJ further relied on Dr. Lyon’s testimony that the tears were present prior to the work-incident. Issues: Was there sufficient evidence to uphold the ALJ’s findings that the tears were present at the time of the work-incident, and that Sexton suffered no harmful change to the left knee due to the incident? Holding: Yes Reasoning: The ALJ noted longstanding issues with the left knee, and specifically noted Dr. Lyon’s opinion about the pre-existing condition, including the 2012 records of Dr. Heilig. It was not disputed that Sexton was involved in an incident, but the finding was that there was no harmful change as a result. There was evidence to support Sexton’s claim, but it was not compelling. Disposition: Affirmed ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Travis Bollenbecker v. H & H Sheet Metal; WCB No. 201470107; Rechter; Entered 8/10/2018.
Procedural History: Bollenbecker appeals from the award of 10% based on the 10% rating assigned him by his treating physician, Dr. Stephen Mclaughlin, alleging it is arbitrary and incompetent as a matter of law. Facts: Bollenbecker‘s left femur was broken in a work-related accident, following which he was transferred immediately to Nashville Medical Center and was treated by Dr. McLaughlin. This continued for about one year and included 2 surgeries. The appeal concerns only the reliability of Dr. McLaughlin’s rating. In an October 23, 2015 office note, when releasing Bollenbecker, McLaughlin assigned a 13%, using the Fifth Edition of the Guides. In an office note dated 11/12/2015, he again mentions the 13%, but now appears to base this on the Sixth Edition of the Guides. Then, in a medical questionnaire dated 11/1/2017, he assessed 10% pursuant to the Fifth edition.
Issues: Did the Plaintiff properly attack the impairment rating assigned to him by his treating physician? Holding: No.
Reasoning: The WCB noted that Plaintiff’s arguments went to the weight afforded the doctors impairment rating as opposed to the admissibility of his opinion. As such, it was in the ALJ’s discretion to rely upon the 10% rating. Further, Plaintiff did not identify that the rating was not compliant with the Fifth Edition as an issue at the BRC, nor does he state that it does not conform to the Fifth edition. The ALJ articulately offered his explanation as to why the doctor altered his rating. This was within his discretion. There was no other reason why the rating was not in conformity with the Fifth Edition.
Disposition: Affirmed
ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Tamara Brisbay v. KentuckyOne Health; WCB No. 201662626; Alvey; Entered 11/2/2018.
Procedural History: Brisbay appeals from a dismissal of her claim wherein the ALJ found her left ankle condition was idiopathic, and did not arise from her employment with KentuckyOne.
Facts: Brisbay alleged a left ankle injury on 10/28/2016, amended to 10/27, occurring when she was walking down a flight of stairs when she heard and felt a pop in her left ankle causing her to fall to her knees. She did not completely fall down. Her job required prolonged standing, walking, and maneuvering carts containing hospital equipment.
An MRI revealed a complete rupture of the posterior tibial tendon. Given the option of surgery or conservative treatment, she opted for the conservative care. Brisbay had previously injured the outside of her left foot one year earlier. This injury involved the inside. She had also been diagnosed with rheumatoid arthritis one year previous, but had not missed any work. She had an MRI the day before the fall due to the swelling and pain in the left foot. It demonstrated heterogeneous abnormal signal within posterior tibial tendon with surrounding soft tissue consistent with partial intrasubstance tear. Brisbay filed Dr. Anthony McEldowney who diagnosed a left posterior tibialis tendon tear/rupture, and said the 10/26 incident caused a change in the human organism in the form of a rupture, and assigned an 8% rating, with restrictions. KentuckyOne filed Dr. Dripchap who opined the ruptured tendon was not work-related. The pre-existing condition had weakened the ankle. The injury could have occurred anywhere. The degenerative state was the reason for the rupture. He declined to assess a rating.
The ALJ found an idiopathic and personal risk which the employment did not cause or contribute to. He also found Dr. Dripchap’s opinions more credible than Dr. McEldowney’s, noting that McEldowney’s were more conclusory without discussing the roles, if any, the pre-existing conditions had in the injury. Issues:1) Did the definition of a “fall” include the Claimant’s testimony that her “legs collapsed”, or that she caught herself as she was going down, in this idiopathic fall case?
2) Did the employer overcome the rebuttable presumption that an unexplained fall which occurs during the course of employment is work-related?
Holding: 1) Yes
2) Yes
Reasoning: 1) The testimony was sufficient for the ALJ to have found that a “fall” occurred. Further, the Claimant made this an issue for the first time on appeal, and had not requested any additional findings in her petition for consideration on the issue.
2) The employer submitted enough evidence to establish the employee’s fall was not unexplained, but, rather, resulted solely from a prior, non-work-related condition. The rebuttable presumption had been reduced to a permissible inference by the employer’s proof.
Further, the ALJ additionally provided a detailed discussion addressing whether there was an increased risk of injury due to the work environment, also known as the positional risk doctrine for idiopathic falls.
Disposition: Affirmed
ALJ: Hon. Brent Dye

Case Name, Citation, Author, Date Entered: PSC Industries v. Derrick Brown; WCB No. 201593236; Rechter; Entered 12/21/2018.
Procedural History: The ALJ entered an award of PTD, which the WCB reversed on the issue of the AMA rating. The COA reversed the WCB and remanded the claim for consideration of the remainder of the issues raised by PSC in its original appeal. Here, the WCB now affirms the original Award of PTD.
Facts: Brown was a machinist who sustained a neck injury resulting in cervical fusion surgery by Dr. Thomas Becherer. Treatment for the low back portion of the injury was by Dr. Rodney Chou. Dr. Jules Barefoot performed an IME and assigned 28% for the cervical and 13% for the lumbar, for a combined 37%, stating that Brown was unable to return to his employment at PSC, and restricted him from working at heights, operating machinery with hand or foot controls, repetitive work above the shoulder, squatting, kneeling, crouching, and lifting more than 10 pounds.
The ALJ relied on Dr. Barefoot and found Brown to be PTD. It is noted that Brown was age 46, high school graduate, and no specialized or vocational training who had worked almost exclusively in labor-intensive jobs.
Issues: Did the ALJ consider all of the factors in Ira A. Watson Department Store v. Hamilton in finding Brown to be at PTD?
Holding: Yes
Reasoning: She considered his age and high school education. She emphasized his entire work history had been in labor-intensive positions. She also noted the significant medical restrictions recommended by Dr. Barefoot. The finding of PTD is a legal conclusion, not a medical one. PSC’s arguments concerning age, education, and desire to work do support a different finding but do not compel one. Dr. Barefoot’s opinion supports the finding of PTD.
Disposition: Affirmed
ALJ: Hon. Jeannie Owen-Miller

Case Name, Citation, Author, Date Entered: Kevin Cardwell v. McLean County Fiscal Court; WCB No. 201563653; Rechter; Entered 12/14/2018.
Procedural History: Cardwell appeals from an award arguing that the ALJ erred by failing to enhance benefits pursuant to KRS 342.165 for an alleged safety violation by the employer.
Facts: Only a brief discussion of the facts, not to include any medical, is warranted. Caldwell was installing drainage pipe, standing at the bottom of a ditch. The backhoe operator remained in his seat, and the control became caught in the operator’s pocket, causing the bucket of the backhoe to drop pipes to drop on Cardwell, breaking his legs.
When the new backhoe had been delivered, instructions on its use were given, including the use of pilot controls and the lockout button which immobilizes the backhoe when activated.
The supervisor testified that he held 2 or 3 meetings annually to discuss safety, but does not review OSHA or safety regs with regards to backhoes at the meetings.
Cardwell introduced the operator’s manual which included: “Be careful not to accidentally actuate control levers when co-workers are present. Always lock hydraulics on backhoe during work interruptions. Lock hydraulics before allowing anyone to approach machine.” The ALJ referenced KRS 338.031(1)(a), the “general duty” clause, and stated that violating this statute does not automatically result in a safety penalty, as intent must also be shown. This was inadvertence negligence on the part of the employee, and the alleged safety violation was not intentional.
Issues: Did the ALJ correctly refuse to enhance benefits as a result of any alleged safety violation?
Holding: Yes
Reasoning: The application of the safety penalty requires proof of two elements. First, the record must contain evidence of a violation of a specific safety provision, whether state or federal. Secondly, evidence of “intent” to violate a specific safety provision must also be present. The worker has the burden to demonstrate the employer intentionally failed to comply with a specific statute or lawful regulation. Nevertheless, an intent to violate a regulation may be inferred from an employer’s failure to comply, as employers are presumed to know what state and federal regulations require.
Further, in Lexington-Fayette Urban County Government v. Offutt, 11 S. W. 3d 598 (Ky. App. 2000), the Court of Appeals applied a four-part test to determine whether a violation of KRS 338.031 had occurred. A violation occurs when:
1) a condition or activity in the workplace presented a hazard to employees; 2) the cited employer or employer’s industry recognized the hazard; 3) the hazard was likely to cause death or serious physical harm; and 4) feasible means existed to eliminate or materially reduce the hazard.
It should be noted that the WCB again refers to the use of the term “penalty” rather than “enhancement.”
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author, Date Entered: Jeffrey M. Crump v. United Mechanical Inc.; No. 2016-CA-001457-WC; Jones; Rendered 12/14/2018; Not To Be Published.
Procedural History: Crump appeals from a decision of the WCB. This case was on appeal two different times to the WCB. This decision essentially reverses both of the prior WCB opinions, and, even though not to be published, needs to be read by all.
Facts: We brought you this case and its decisions on two prior occasions. We will not go through a thorough review of all of the medical evidence, but will discuss only the one medical opinion that the WCB and the COA focused on.
In both of the prior ALJ decisions and the WCB decisions, focus was on the medical report of Dr. Warren Bilkey, his impairment rating, and the fact that he testified at the time that Crump was not yet at MMI when he assigned the rating. The CALJ, following the directives of the WCB, disallowed the rating on the second appeal, and dismissed Crump’s claim for PPD, which had been awarded, enhanced, in the original ALJ decision by ALJ Rudloff. The crux of the matter is Dr. Bilkey’s rating of 28%, given while Crump was not yet at MMI. Bilkey testified that Crump would be at MMI one year from the date of hid last surgery, February 25, 2016. He explained that it was appropriate for him to assign a prospective impairment rating because the preferred method of evaluation, the DRE method, was based on the fact that Crump had undergone two surgeries on the same area of the spine as a result of his injury. The passage of time would not decrease the rating. The ROM method does not apply until MMI. The DRE method results in the same rating no matter when given. The Guides provide that when competing methods are used, the highest is used anyway, so the least Crump would get would be the 28% that he assigned using DRE Category IV.
Issues: Was the opinion of Dr. Bilkey assigning a rating before the Claimant was at MMI grounded in the Guides?
Holding: Yes
Reasoning: Dr. Bilkey explained that even if he waited until Crump obtained MMI from his second surgery, he would be left with a rating of at least 28%. Although Bilkey did not strictly adhere to the Guides, he explained his rationale. More importantly, his opinion was based on the methods set forth in the Guides. As such, the CALJ could have given credence to Dr. Bilkey’s opinion. See Plumley v. Kroger, Inc., 557 S.W. 3d 905, 912-913 (Ky. 2018), reh’g denied (Nov. 1, 2018) which held that an ALJ is entitled to give credence to an opinion that is based upon the Guides even if the opinion does not strictly adhere to them.
Since Crump was entitled to a rating of at least 28%, the ALJ was not required to dismiss the claim.
The claim is remanded for further consideration of Crump’s claim for PPD benefits.
Disposition: Reversed and Remanded
ALJ: Hon. CALJ Robert Swisher
COA Panel: Johnson, Jones, and Thompson

Case Name, Citation, Author, Date Entered: Jason Conley v. Super Services, LLC; No. 2018-CA-000709-WC; Clayton; Rendered 9/7/2018; TO BE PUBLISHED
Procedural History: Conley appeals from an Opinion of the WCB affirming the denial of proposed caudal epidural steroid and sacroiliac injections. The COA vacates the WCB decision which denied the epidural injections.
Facts: Caudill was injured in a work-related mva on 4/21/2014 which included cervical and lumbar back injuries. In August, 2016, he underwent an L4-5 discectomy, and continuing with pain after the surgery, he treated with Dr. Gutti for pain. MFDs were filed, including the one under review here, which is for a repeat caudal epidural steroid injection and referral to a neurosurgeon. The ALJ determined that the portion of the MFD that dealt with the spinal cord stimulator and the referral to a neurosurgeon were reasonable and necessary.
The ALJ found the repeat caudal injections, and the SI joint injections were not reasonable and necessary, thus not compensable. The WCB confirmed, explaining that Dr. Braun stated that the procedure (SI joint injection) is no longer supported by the ODG, and the blocks are not recommended for non-inflammatory SI pathology based on insufficient evidence.
Issues: Did the ALJ and the WCB correctly apply the correct standard and deny the SI injection?
Holding: No
Reasoning: The ALJ determined the proposed caudal epidural injection was not reasonable and necessary based upon Dr. Lewis’ opinion that there was no evidence of improved functioning and no documentation that the injections resulted in any decrease in pain medication for any period. However, KRS 342.020(1) requires neither of these conclusions. All that is required is that the services be for the cure or relief of the effects of the injury. The medical evidence, however, was that Conley received greater than 50% relief of pain from the caudal epidural steroid injection, with good relief with the radicular component of pain, and the residual pains were tolerable on medications.
The COA stated: “We cannot consider or imagine any evidence more compelling that a procedure is reasonable and necessary for the ‘cure or relief from the effects of an injury’ than one which actually affords relief from the devastating misery of intractable pain.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. Monica Rice-Smith
COA Panel: Clayton, Combs, and Jones

Case Name, Citation, Author, Date Entered: Appalachian Regional Hospital v. Sherry L. Barker; WCB No. 199603889, 199331693, 199112897, 198942636, 198920726 & 198632151; Stivers; Entered 12/17/2018.
Procedural History: ARH seeks review of an award resolving three MFD in favor of Barker. The ALJ determined SI joint injections with related massage therapy, epidural injections, the current frequency of visits to Dr. Jay Narola, and the medication Clonazepam are reasonable and necessary treatment of Barker’s work injuries.
Facts: This is a 39 page opinion which is a difficult read due to the ALJ’s opinions that were cited and the attempt to summarize the evidence in three separate, but yet related MFDs. What we will do here is to simply summarize the findings in the MFDs, and then explain the WCB’s findings. ALJ Ronald May determined that Barker sustained a 1994 work injury resulting in a 35% PPD, apportioned 21% to a back injury and 14% to an ankle injury. In 2001, ALJ Donald Smith determined upon reopening that Barker had a psychological condition and was entitled to psychiatric treatment, and increased the award to 100%. ARH did not appeal the decision.
In July, 2005, ALJ Thomas Davis determined Barker was entitled to epidural steroid injections to relieve the pain in her lumbar spine and leg as reasonably necessary treatment of her work injury. That decision was not appealed.
Relying on a U/R report of Dr. Avrom Gart, on 9/30/2016, ARH filed a MTR contesting a request for a left SI joint injection and physical therapy. On 1/30/2017, ARH filed a medical dispute contesting treatment in the form of three lumbar epidural steroid injections at L4-5 as unreasonable and unnecessary medical treatment, again attaching a report of Dr. Gart.
On 1/2/2018, ARH filed a third dispute challenging the reasonableness and necessity of the frequency of Dr. Jay Narola’s treatment and the prescription medication Clonazepam, once again attaching a report of Dr. Gart.
The ALJ ruled in favor of Barker in each of the motions. We will simply utilize the WCB’s opinions under “issues.”
Issues: 1) Was there substantial evidence to support the ALJ’s determination the SI joint injections are reasonable and necessary treatment?
2) Was there substantial evidence to support the ALJ’s determination the epidural steroid injections are reasonable and necessary treatment?
3) Was there substantial evidence to support the ALJ’s determination the current frequency of Barker’s visits to Dr. Narola and Clonazepam are reasonable and necessary treatment of Barker’s work injury?
Holding: 1) Yes
2) Yes
3) Yes
Reasoning: 1) Citing Conley v. Super Services, LLC, 557 S.W. 3d 917 (Ky. 2018) the WCB noted that the COA held that a procedure from which the claimant received greater than 50% relief constituted reasonable and necessary treatment. Here, the medical records established the 2015 SI joint injection provided 75% relief. Conley would thus hold that this constitutes requisite medical evidence supporting the determination that the joint injections and accompanying massage therapy are reasonable and necessary. Important to the decision was the ALJ’s choosing not to rely on Dr. Gart because he had not seen Barker, and, that the treating doctor, Dr. Briggs, had treated Barker for 13 years where he had monitored her closely.
2) Again, records revealed that previous injections in 2016 provided at least 65% relief. Also, Barker’s description of pain at the first injection was 10 out of 10. Following the third one in 2016, it was 4 out of 10. This was sufficient to approve the injections. It was noted that the ALJ limited these injections to one if the eventual pain management physician recommends it.
3) Dr. Gart had summarized a conversation with Dr. Narola in his report where Dr. Narola stated Barker was not using opiates, and that unless the pain level decreased, Dr. Narola would not reduce Barker’s visits to less than the once every week or so. He unequivocally believed the frequency of the visits were necessary and reasonable in light of a recent change in medications and her inability to secure a new pain management physician. Again, the ALJ cited that Dr. Gart had not seen Barker, and Dr. Narola had treated her and monitored her closely for a number of years.
N.B. It should be noted that treatment by a pain management physician was unavailable to Barker as a result of a letter sent by the claims adjuster to the pain management physician which contained allegations of pain management misconduct, which Barker denied, and the physician would not see her.
Disposition: Affirmed
ALJ: Hon. Brent Dye

Case Name, Citation, Author, Date Entered: HardHat Workforce Solutions v. Anthony Warner (Deceased), Melissa Marquez-Warner and Regina Wiley (Co-Administrators), Titan Electric, Uninsured Employers Fund; Claim No. 201475681; Alvey; Entered 10/26/2018.
Procedural History: Hardhat appeals and Titan Cross-Appeals from the February 13, 2017, Opinion on Remand and the May 14, 2018 Order. In the February Opinion, the ALJ determined Anthony Warner was “obviously and employee” of both Titan and hardhat at the time of his death, and, therefore, both were jointly and severally liable for the workers’ compensation benefits awarded by ALJ Rudloff in an Opinion dated May 12, 2015. Importantly, the ALJ failed to enter an award. In the May 14, 2018, Order, the ALJ clarified he considers Warner to be a “joint employee” of both Titan and HardHat at the time of his death.
Facts: This is the second time this case has been before the WCB. The facts are long and at times confusing, so we are going to condense them into the most relevant for the purpose of this discussion.
HardHat is a temporary staffing company providing laborers for construction companies. Titan is a construction contractor who used HardHat. There was no written agreement. HardHat took the applications and did the background checks, etc. HardHat paid the wages. On a few occasions, Titan too the application and would forward the paperwork on to HardHat for final approval. That is what happened here, except that Warner was killed in a work-related fall prior to HardHat even getting the paperwork.
The original Opinion and Award was vacated and remanded by the WCB. This is the second time the WCB is sending the case back, except that this time the appeal is dismissed because there is actually no award entered.
There are three main issues in the case which will be discussed along with the pertinent facts.
Issues: 1) Were the 2/13/2017 Opinion on Remand and the May 14, 2018 Order final and appealable orders?
2) What is the law on joint and several liability in WC cases?
3) Were all indispensable parties to the action in this claim?
Holding: 1) No
2) See below
3) No
Reasoning: 1) The orders did not operate to terminate the action itself. Nor do the orders decide al outstanding issues, nor do they determine all the rights of the widow, the estate, or to Warner’s children.
2) The original finding of the ALJ on the issue of joint and several liability could be re-examined by the ALJ on this remand as that finding had not been memorialized in a final order and award.
Any finding of “joint employment” must satisfy the three-part test articulated in Integrated Electrical and Datacom v. Hussey, 2008 WL 5051632, rendered 11/26/2008, Not To Be Published: an employee is under contract with two employers; under their simultaneous control; and performing the same or closely related services simultaneously for both. If the ALJ is unable to find evidence in the record satisfying all three factors, he must determine if either Titan or HardHat is liable but not both. This is consistent with Larson’s Workers’ Compensation Law sec. 68 (2008).
3) The widow was not named individually as a party. The estate was not named a party. All 4 children or their representatives must be named as parties (guardian or next friend).
Disposition: Opinion and Order Dismissing Appeal & Cross-Appeal.
ALJ: Hon. Roland Case

Case Name, Citation, Author, Date Entered: Stanton Nursing and Rehab Center v. Lezley Dotson; WCB No. 201780298; Rechter; Entered 11/30/2018.
Procedural History: Stanton appeals from an award of TTD, PPD, and medical benefits for a work-related low back injury.
Facts: Dotson was a nursing home assistant which required her to lift, tug, and pull. While assisting a patient on May 18, 2017, she felt a pop and pain in her lower back. The following morning she felt excruciating pain in her back and right hip with pain into her leg. She then saw Sarah Howell, APRN, who diagnosed work-related acute back pain, and obtained an MRI which revealed mild DDD in the lumbar spine. Bulges were noted at L3-4, L4-5, and L1-2. There was also stenosis. Dotson admitted to prior treatment with Howell for low back pain, but was without symptoms for at least 6 months. Previous treatment was also at the Lexington Clinic. Dr. Ellen Ballard conducted an IME on October 10, 2017 and diagnosed low back pain, DDD, and intermittent right leg symptoms. Because of prior symptoms, which Dotson denied, she could not definitively conclude which symptoms were from the work injury and which were pre-existing. In a supplemental report she assigned 7% based on DRE II, and would have had 5% prior to the injury. In a second supplemental report, she assigned 2% to the injury. Dotson could not return to her job due to the pre-existing back problems. Dotson returned to work at a lesser position and was eventually terminated due to restrictions given by Dr. Ballard for her pre-existing condition. She then found another position for less wages than she earned at Stanton. Dr. Frank Burke performed an IME and concluded an acute lumbosacral strain with the development of annular tears. He assigned 7% with no impairment ratable condition prior to the work injury. Dr. John Vaughan conducted an IME, and reviewed prior records and assigned 5% using DRE II, but assigned it all as pre-existing active, including his restrictions. She could return to prior work. The ALJ relied on Dr. Burke and awarded 7%, with no carve-out for any prior active. He did not find opinions of Drs. Ballard and Vaughan as persuasive. Further, based on the opinions of Dr. Burke, Dr. Ballard and Sarah Howell, the ALJ found that Dotson did not retain the physical capacity to return to the type of work she performed on the date of injury.
Issues: 1) Did the employer sustain its burden of proving the existence of a pre-existing active disability? 2) Was the evidence sufficient to award the three multiplier?
Holding: 1) No 2) Yes
Reasoning: 1) There was substantial evidence in the record to support the ALJ’s conclusion that Dotson suffered no pre-existing active low back condition. While there was evidence of prior treatment, there was also evidence to support a conclusion the low back condition was not symptomatic immediately prior to the work incident. Even if Dotson failed to acknowledge her prior treatment, the doctors had full access to review all of her medical records, and it appears that they did.2) The ALJ relied on the opinions of Drs. Ballard and Burke that she was not able to work for Stanton. Also, Dotson testified to the same. Dotson’s plan to seek certification as a CMA and obtain other employment is immaterial to the determination of her retained physical capacity.
Disposition: Affirmed
ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: Porter Slaughter v. Tube Turns; WCB No. 199771438; Alvey; Entered 10/26/2018.
Procedural History: Slaughter appeals from an Order dated 8/14/2018 overruling his Motion to Reopen filed on 7/10/2018.
Facts: Let’s put the facts in chronological order as that is the crux of the case.3/27/96-Right shoulder injury requiring surgery. 8/29/97-Slaughter files Form 101 indicating a right shoulder injury on March 26, 1996 requiring surgery, and, on April 8, 1997, a bar struck his “left shoulder, chest, and neck,” however he did not specifically allege any injuries to those body parts.11/27/97-Settlement Agreement listing nature of injury was to right shoulder, and paying income benefits for the right shoulder, but referenced the left shoulder injury date.12/2/97-Slaughter files Form 101 alleging left shoulder injury.5/18/99- CALJ Terry dismisses left shoulder claim determining the filing was for a previously settled claim.12/21/2001-MTR this claim which was dismissed on 9/9/2002, and affirmed by WCB on 1/22/2003. It was dismissed because it was filed more than 4 years after the prior settlement date, in violation of the limitations period at that time.11/2/2016-Slaughter files MTR and MFD, attaching to the claim the 1997 Form 110.4/30/2018-ALJ Hajjar issues opinion finding a September 30, 2016, left shoulder surgery compensable and awarding TTD from 11/2/2016 thru 3/30/2017. Tube Turns did not appeal.7/10/2018-Slaughter files this MTR alleging change of disability (for the left shoulder following the surgery) which the CALJ overrules 8/14/2018. The ALJ bases his decision on the fact that it was not filed within four years of the original settlement agreement in 1997, as required by the recently adopted amendment to KRS 342.125 (3). This motion was filed 4 days before the amended statute was to take effect.
Issues: Did the ALJ correctly apply the amended statute on reopening to this claim and overrule the MTR because it was not filed within 4 years of the original settlement?
Holding: Yes
Reasoning: The clear language in amended KRS 342.125 limited reopening to the 4 year period following the date of the original award or order granting benefits. The amended section was deemed to be remedial and applied to all claims irrespective of the date of injury.Contrary to a recent COA opinion that held that information as to when the amendment became effective, and to which cases it applied to because the information was not specifically contained in the statute, the WCB stated:“We note this language is not specifically contained in the body of the statute. However, it is contained in the Legislative Research Commission Note in the official version of the statute.”
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Lexington Fayette Urban County Government v. John Baker; No. 2017-CA-001459-WC; Lambert, D.; Rendered 12/7/2018; Not To Be Published.
Procedural History: Lexington seeks review of the WCB opinion affirming the award of benefits to its former employee, John Baker.
Facts: Baker worked as a heavy equipment operator, and was required to maintain equipment, which involved the use of small hand tools. He began experiencing symptoms later diagnosed as CTS in 2010. Dr. John Gilbert performed right CTR on 5/5/2010. Baker was diagnosed with hypothyroidism in 2013, and was morbidly obese at 350 pounds. In 2014 Baker returned to Gilbert with left handed symptoms and a left CTR was performed in 2016. Dr. Richard Burgess performed an IME, and opined that the CTS was caused entirely by the obesity and hypothyroidism. The work activity was not sufficient. Dr. James Owen evaluated and formed the opposite opinion. Baker’s work which included “repetitive pinching, gripping, and fine and gross manipulation” caused the CTS. He assigned 13%. Relying on Dr. Owen, the ALJ awarded TTD on 10/26/2015, also taking notice of the fact that the equipment Baker operated vibrates during operation, and noting that Dr. Burgess had ignored that fact. Subsequently a third IME was performed by Dr. Richard Dubou who concluded that the CTS resulted from the obesity and hypothyroidism. The operation of heavy equipment does not cause CTS. The ALJ’s final award, relying on Dr. Owen, was for PPD benefits, presumably based on the 13% rating. The amount of the award was not stated by the COA.
Issues: 1) Was it proper for the ALJ to take judicial notice of the fact that the equipment Baker ran caused vibration when in operation? 2) When Dr. Owen’s opinion did not mention mechanical vibration as playing a causative role insufficient to support the ALJ’s decision? 3) Does the Interlocutory award violate the employer’s right to due process because it is not appealable?
Holding: 1) Yes 2) No 3) No
Reasoning: 1) Rule 201 (b) of the Kentucky Rules of Evidence (KRE) permits judges to take notice of facts which are not subject to reasonable dispute and generally known in the county in which venue is fixed. The employer’s contention, that only individuals who have actually operated the specific machines that Baker used on a daily basis can have knowledge of whether they generate vibrations, is overly specific. The reliance on Commonwealth v. Howlett, which stands for the proposition that judicial notice is inappropriately based on a judge’s personal experience, ignores the ALJ’s discussion of the related experience of operating a lawn mower.2) Dr. Owen’s opinion explicitly linked the gripping, pinching, and manipulation, of the hand controls of the heavy equipment to the CTS, without mentioning vibration. The employer overstates the importance of the judicial notice. No additional facts were necessary to bridge the gap between Dr. Owen’s medical opinion and Baker’s work.3) This argument has been previously rejected. The WCB properly did not rule on the matter. The COA noted that the employer took all proper steps pursuant to statute and rules to preserve this issue for argument.Relying on Fruit of the Loom v. Ooten, 70 S.W. 3d 403 (Ky. 2002), the COA ruled that because a procedural avenue exists by which the employer could seek early termination of the TTD benefits, it cannot conclude the regulatory scheme presented a due process violation.
Disposition: Affirmed
ALJ: Hon. Grant Roark
COA Panel: Lambert, D., Acree, and J. Lambert

Case Name, Citation, Author, Date Entered: Evelyn Eagle v. Sourcehov Holdings, Inc.; No. 2018-CA-000879-WC; Kramer; Rendered 12/7/2018; Not To Be Published.
Procedural History: Eagle sought an award alleging a June 11, 2015 work incident that caused her to sustain injuries to her neck and lower back, as well as bilateral CTS. The ALJ dismissed her claim and the WCB affirmed. The issue is the ALJ’s use of the term “injury.”
Facts: Eagle alleged injuries to her neck, lower back, and bilateral CTS. Eagle’s complaint with the finding was primarily the following:“Based on Eagles’ treatment records, the ALJ finds that Eagle has failed to prove she sustained a harmful change in the human organism as a result of the work-related injury on June 11, 2015.”There were other references in the opinion referencing the “work injury.” Eagle argued before the WCB that referring to the “work injury” in the opinion meant that the ALJ should have ruled there was an injury, and, further, in discussing “pre-existing and active conditions”, the ALJ erred because he should have found that the existence of these conditions did not rule out the possibility of a work injury.The WCB affirmed the ALJ stating what was referenced in the order demonstrated the ALJ’s ultimate conclusion was not contrary to the overwhelming weight of the evidence. Also, Eagle failed to preserve any argument related to findings by failing to file a petition of reconsideration.Issues: Did the language of the ALJ opinion with references to a “work injury” require that “effect must be given to that which is unavoidably and necessarily implied in a judgment, as well as that which is expressed in the most appropriate language?”
Holding: No
Reasoning: The ALJ clearly found that Eagle had failed to prove she sustained a harmful change in the human organism as a result of the work-related injury. The reference in the opinion to reports of Drs. Ballard and Vaughan demonstrated the ALJ’s ultimate conclusion was not contrary to the overwhelming weight of the evidence.
Disposition: Affirmed
ALJ: Hon. Monica Rice-SmithCOA Panel: Dixon, Kramer, and J. Lambert

Case Name, Citation, Author, Date Entered: ADS Waste Holdings, Inc. v. Philip Jones; WCB No. 201560232; Alvey; Entered November 30, 2018.
Procedural History: ADS appeals from an award where the ALJ determined that Jones sustained a work-related left thumb injury and left carpal tunnel syndrome, and was awarded TTD, PPD, and medical benefits.
Facts: Jones filed a Form 101 alleging he injured his left wrist/hand/thumb while climbing into a truck on November 19, 2015 in the course and scope of his employment. This occurred near the end of his shift, and he told his supervisor and went home. His wife drove him to the emergency room where X-rays revealed a left wrist fracture. Dr. Martin Favetto performed surgery on 12/2015, an ORIF of the distal radius fracture, addressing the left wrist fracture. Dr. Brandon Devers then performed a left carpal tunnel release on 2/24/2017 for numbness and tingling inn the left thumb and wrist following an EMG/NCV report showing moderate to severe left and right carpal tunnel syndrome and mild bilateral neuropathy at the elbow. Jones filed Dr. Anthony McEldowney’s report. McEldowney diagnosed closed complex comminuted fracture left distal radius and left carpal tunnel syndrome, likely dormant and asymptomatic prior to the closed fracture. He assessed 4% and said Jones could RTW. ADS filed the report of Dr. Ronald Burgess who did not believe the fracture was consistent with a thumb injury, and the CTS was not work related. Nonetheless, he assigned 7%. The ALJ awarded for the left thumb and left CTS, rejecting Favetto and Burgess. He awarded the 4% of Dr. McEldowney.
Issues: Was the testimony of Jones and Dr. McEldowney substantial evidence supporting the ALJ’s determination?
Holding: Yes.
Reasoning: The challenges of ADS to Dr. McEldowney go to the weight of the evidence and are not an adequate basis to reverse on appeal. McEldowney unequivocally attributed the fracture and CTS to the 11/19/15 incident. The ALJ rejected Dr. Favetto and stated that the doctor only “suspected” a non-work related cause for the weakness in his hand. The 8 hour lapse between the incident and Jones going to the hospital was irrelevant. It is neither unusual not indicative that the injury is not work-related.
Disposition: Affirmed ALJ: Hon. Chris Davis

Case Name, Citation, Author, Date Entered: Megan Shoemaker v. Kelly Services; WCB No. 201799744 & 201700948; Stivers; Entered 12/7/2018.
Procedural History: Shoemaker appeals from an Opinion and Order dismissing her claim for PPD and TTD but awarding medical benefits from February 22, 2016 through March 28, 2016 for a work-related cervical and right shoulder sprain/strains.
Facts: Shoemaker’s first claim is for work-related repetitive motion injuries to multiple body parts on 2/22/2016, while in the employ of Kelly Services, which “caused neck to lock up.” A second claim alleges work-related repetitive motion injuries to multiple body parts on 12/2/2016, while in the employ of Toyota manufacturing. The claims were consolidated. Shoemaker began working for Kelly in March, 2015, and following her last day in November, 2016, went to work the next day at Toyota, performing the same job she had performed while with Kelly at Toyota. Her last day at work for Toyota was April 12, 2017. She underwent cervical fusion surgery on August 18, 2017. Shoemaker had originally sought medical treatment following the first incident. She was treated with muscle relaxers, and was released to full duty on March 28, 2016. The symptoms for the second injury started shortly thereafter, and were the same as for the first injury. Shoemaker claimed she never fully recovered from the first injury and the symptoms she experienced before her cervical fusion surgery were the same symptoms she developed in February, 2016. The records and reports of Dr. Vaughan were filed. He diagnosed herniated disc C5-C6 and status post anterior cervical discectomy and fusion C5-C6. These were attributed to the February 22, 2016 work injury. He assessed 27% with restrictions. Kelly introduced the IME of Dr. Kakel, who diagnosed a cervical strain and right shoulder strain, completely relieved, and status post cervical spine fusion. The only condition related to February were the strains. He assessed 25% as a result of the surgery, but the February incident had nothing to do with the surgery. There had been no testing done after the incident, she became asymptomatic, returned to work, and when testing was done, the disc changing was more consistent with aging than an injury, as it covered more levels. Kelly introduced a “medical review” by Dr. Henry Tutt. He assessed a 25%, but none of it was related to her work with Kelly Services. The Toyota medical department records showed complete resolution of her problems following the first incident on March 28, 2016. Appearing in the record was a Form 110 agreement between Shoemaker as a “full and final” for $5000.00. In the July 18, 2018 Opinion and Order, the ALJ relied on Drs. Tutt and Kakel to find only a temporary injury. Too much time had elapsed between the Kelly Services injury and the surgery for there to have been a connection. The ALJ noted a failure by Shoemaker to tell her doctors about her neck locking up after she got home on the 22nd after petting her dog, as that was the only “specific” event that occurred when her neck locked up.
Issues: 1) Did the ALJ err when he failed to note an office visit between March, 2016, and December 2, 2016, and by finding that Shoemaker had no complaints during this period? 2) Did Drs. Tutt and Kakel erroneously determine that Shoemaker reached MMI from her February injury in late March, 2016?
Holding: 1) No 2) No
Reasoning: 1) The record was not filed. One of the doctors referred to it, but that is not enough. Importantly, the WCB pointed out that during this period of time Shoemaker did not complain to either Kelly Services or Toyota about her problems. 2) The medical evidence showed that Shoemaker was not receiving treatment, and showed resolution of her problems by March 28.
Disposition: Affirmed
ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: James Alcorn v. Industrial Machine & Tool Co., Inc.; WCB No. 201296167; Alvey; Entered 12/7/2018.
Procedural History: Alcorn appeals from the Opinion and Order that determined Alcorn failed to prove the work-related injury he sustained while working for Industrial Machine had worsened since the decision rendered by ALJ Weatherby. The ALJ determined Alcorn failed to prove the L4-5 fusion that he underwent after the initial decision was caused by the January 24, 2012 injury.
Facts: In his decision dated 8/24/2015 ALJ Weatherby determined Alcorn had sustained a work-related injury on 1/24/2012, but also determined he had a pre-existing active lumbar condition. Weatherby awarded PPD based upon a 5% rating of which he attributed half to the work injury, and half to the pre-existing condition. Alcorn filed his MTR alleging his injury had worsened to the point that he was now PTD after undergoing a spinal fusion surgery at L4-5 by Dr. Amr El-Naggar, paid for thru private insurance. Alcorn testified that he underwent surgery because of the severity of his low back and left leg pain. He did not obtain much relief, and since the surgery continued to complain of pain, and has now undergone lumbar injections and taken anti-inflammatory medicine. The affidavit of Dr. Chad Morgan D.C. was tendered with the MTR. He attributed Alcorn’s complaints to the work injury, with no mention of the pre-existing condition as determined by the ALJ. Alcorn’s condition had worsened and he was now PTD. Dr. Stephen Autry prepared a report at Alcorn’s request. Dr.  Autry’s report did not include the reports of either Dr. David Muffly or Dr. Russell Travis, both of whom had submitted reports in the original claim, nor did it list the original ALJ decision. Dr. Autry, contrary to ALJ Weatherby’s decision, determined Alcorn had no active impairment prior to the work injury. He assessed 23%, all attributable to the original injury. Alcorn could not return to his previous employment. Alcorn also tendered Dr. James Owens’ report, filed before ALJ’s original decision, which found pre-existing dormant conditions that were aroused into disabling reality by the work injury. Alcorn also filed Dr. El-Naggar’s notes, including operative notes and hospital discharge summary. Industrial Machine submitted Dr. David Muffly who attributed complaints of pain following the surgery to DDD, pre-existing and active prior to 1/24/2012. The lumbar fusion was not related to the work injury. Of the increased rating of 17.5%, the 2.5% originally assigned to the work injury remained unchanged. Industrial also filed Dr. Russell Travis who said the surgery was not work-related and the rating is now 20% due to the surgery. The fusion surgery was neither reasonable nor necessary. The ALJ determined that Alcorn did not prove his surgery and resulting impairment rating were work-related.
Issues: Was the decision by the ALJ to dismiss the MTR supported by substantial evidence?
Holding: Yes
Reasoning: The original ALJ award found that Alcorn had both a work-injury and a prior active condition. That decision was not appealed, and is res judicata. The ALJ clearly relied upon the opinions of Drs. Travis and Muffly who attributed the surgery to Alcorn’s pre-existing active condition. Both physicians opined the compensable low back condition, the L4-5 disc herniation, had resolved.
Disposition: Affirmed
ALJ: Hon. Brent Dye

Case Name, Citation, Author, Date Entered: David Haas v. Phillips Pet Food Supply; WCB No. 201779448; Alvey; Entered 11/30/2018.
Procedural History: Haas appeals from an Opinion and Order dismissing his claim for a right knee injury as not being caused by the alleged May 12, 2017 work incident.
Facts: Haas alleged an injury on May 12, 2017 from lifting. He also alleged a safety violation against the employer due to improper loading of the delivery truck. Haas had previously injured his knee while dancing in 2007, and had undergone ACL surgery in 2008 or 2009. He had seen Dr. Frank Bonnarens 10 days before the work incident for knee pain of two days duration. After this incident, he went to Baptistworx, then Dr. Bonnarens, and eventually Dr. Steve Smith, who had performed the first surgery. In its Form 111, Phillips alleged a safety violation against Haas for failing to use proper protocol in dis-assembling a pallet, thereby causing the injury. Haas filed Dr. Jules Barefoot and noticed the June 2017 MRI revealed possible tears of the medial and lateral meniscus, along with tri-compartmental arthritis. The surgery consisted of ACL reconstruction, partial lateral and remedial meniscectomies and chondroplasty of the patella femoral and medial compartments. He assessed 9% with restrictions. Phillips filed Dr. Thomas Loeb who diagnosed persistent right knee pain and end-stage tri-compartmental arthritis with bone marrow edema in the medial femoral condyle. He had a recurrent injury pattern which progressed over time, and he was ratable before this event He assessed 15% to the 2007 surgery, and all symptoms were present when he was injured. Phillip’s director of Risk management testified that OSHA regulations were inapplicable and regs from the Dept. of Transportation apply. Phillips was not cited. The ALJ found an incident had occurred, but relied on Dr. Loeb’s opinions regarding causation as being more persuasive, and dismissed the claim.
Issues: Did the ALJ correctly analyze this claim, and did he have a complete understanding of the issues before him?
Holding: Yes
Reasoning: Dr. Loeb’s opinion, in conjunction with Dr. Bonnaren’s treatment records constituted substantial evidence supporting the ALJ’s finding that Haas failed to prove his right knee injury claim.
Disposition: Affirmed
ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Viwintech Windows & Doors, Ins. v. Mark Ivey; WCB No. 201578481; Alvey; Entered 12/21/2018.
Procedural History: Viwintech appeals from an award which found Ivey’s low back condition, including the recurrent herniated disc at L4-5 and subsequent lumbar fusion surgery, related to the June 23, 2015 work injury. The ALJ also found Ivey had no pre-existing active condition prior to the work injury warranting a carve-out from the 28% rating.
Facts: The relevant facts are simple. Ivey alleged a low back injury on 6/23/2015 while lifting. Dr. Arendall performed a lumbar surgery in December, 2015, which WC approved. He then performed a two-staged lumbar fusion in May and June, 2017, which WC denied. He then RTW at Viwintech at a less demanding job. Prior to work at Viwintech, Ivey underwent LB surgeries in 2004 and 2012 at the same disc level as the 2015 injury. There was no treatment since these surgeries before the injury. Ivey went to work at Viwintech just 5 months after the 2012 surgery. Viwintech filed the medical records showing the prior surgeries at L4-5 left. Dr. Arendall’s operative report reflects diagnoses of recurrent disc herniation left L4-5, with stenosis at left L4-5 and left L3-4 and two prior lumbar laminectomies. He eventually performed the fusion surgery at L4-5, and stated the two staged surgery was related to the work injury. Dr. Arendall assigned 28% under DRE V and explained why the DRE was more appropriate than ROM. Anyone with Ivey’s findings following the 2015 event could not have worked from 2012 thru 2015. Viwintech submitted Dr. Ellen Ballard. Dr. Ballard was well aware of the previous surgeries, and had reviewed records. She testified that after the first surgery, Ivey’s rating would have been 10%, and 1% added following the second surgery. Dr. Ballard agreed that Ivey had been asymptomatic following the second surgery up to the time of the work injury. Viwintech filed Dr. Thomas O’Brien. Dr. O’Brien thought the 2015 event did not produce a work-related re-herniation. Further, it was not an aggravation of any previous condition, but a “flare up” of a natural progression of DDD. He did assign 16% using ROM, with 12% to the 2004 and 2012 surgeries and 4% to the 2015 and 2017 surgeries. Dr. O’Brien insisted that the use of ROM was the proper method, and the use of the DRE method was wrong.  If he did use DRE it would have been 25%. He refused to agree that Ivey had been asymptomatic. The ALJ relied on Dr. Arendall’s opinion that the lifting incident caused the herniation and found the fusion surgery compensable, and that Dr. Ballard had also found that an injury had occurred. She applied the 28% and found no prior active disability, noting that while Ivey was in fact ratable prior to the injury, he was asymptomatic, and therefore there could be no prior active disability to carve out. Viwintech did not appeal the ALJ’s determination regarding work relatedness/causation, nor did it challenge the 28% rating assessed by Dr. Arendall.
Issues: Did the ALJ perform the proper analysis pursuant to Finley v. DBM Technologies when she refused to carve out from the 28% assessed for Ivey’s low back condition?
Holding: Yes
Reasoning: To be active prior condition must be both symptomatic and impairment ratable.  There was no dispute that the condition was ratable, but there was no evidence in the record establishing Ivey sought treatment for his low back condition after he recovered from the 2012 surgery until the 2015 injury. He regularly lifted heavy weights, twisted and had to bend. The doctors were all aware of the prior surgeries. The ALJ properly conducted the proper analysis.
Disposition: Affirmed
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Hussey Cooper, LTD., v. Melvin Stivers; WCB No. 201387791; Rechter; Entered 12/7/2018.
Procedural History: Hussey appeals from the July 17, 2018 Opinion, Award, and Order wherein ALJ Chris Davis found Melvin Stivers to be PTD.
Facts: Stivers sustained 2 lumbar injuries that resulted in ALJ Borders determination that Stivers suffered a lumbar injury superimposed on DDD, and concluding that he was not capable to return to his work at Hussey. ALJ Borders then awarded PPD based on a 6% rating. The award was entered on April 14, 2014. Following the Award, Stivers treated with Dr. Robert Blok and received injections in the sacroiliac (SI) joint. Blok recommended SI joint arthrodesis. In the pre-authorization stage, Dr. Peter Kirsch recommended to deny the arthrodesis. Hussey then filed a MFD.  In an interlocutory opinion dated November 16, 2015, CALJ Swisher relied on Dr. Blok’s opinion and found the proposed surgery as reasonable and necessary. For unknown reasons, Dr. Blok was unable to perform the surgery so Stivers was referred to Dr. Michael Casnellie who performed a right SI joint arthrodesis on 5/12/2016. Left sided pain persisted following the surgery and Dr. Casnellie then performed a left SI joint arthrodesis on 3/14/2017. Stivers continued with radiating pain following the surgeries and Dr. Casnellie recommended epidural steroid injections and pain management. Dr. Robert Jacob performed an IME. He found MMI and suspected symptom magnification. He assigned a 3% rating and said Stivers could RTW without restrictions. Dr. Robert Byrd performed an IME on January 26, 2018, having previously performed an exam in the original claim and then had assigned a 6% rating. He again assigned 6% under DRE II, plus 1% for his level of pain. He did not discuss restrictions or future medicals. Dr. Luca Conte performed an independent vocational evaluation and noted chronic back pain, and that Stivers walked with a cane. He thought Stivers retained the capacity to perform sedentary and light duty jobs. He also noted that Stivers’ physical restrictions had not changed since the original award. The ALJ, relying heavily on Stivers’ testimony found him to be PTD. He also relied on his age (55), high school educational background, and his work history. Stivers’ testimony was that he continued to have chronic low back pain and numbness in his toes. He also had trouble sitting for extended periods of time. He felt it would be very difficult for him to return to work. Also, Stivers’ difficulty in concentrating, the fact that is pain would likely not allow a full day’s work, and the likelihood of frequent absences from work were all specifically noted by the ALJ.
Issues: 1) Did the ALJ correctly consider age and Stivers’ complaints of pain as outweighing other factors such as work history and education in finding Stivers to be PTD? 2) Were the permanent work restrictions in the original award in which the ALJ found Stivers physically unable to return to his previous job res judicata in this reopening?
Holding: 1) Yes 2) No
Reasoning: 1) All factors were considered. The ALJ was simply convinced that Stivers’ chronic pain would impede his ability to complete a full work day reliably, even if his education and skill level would otherwise permit light duty or sedentary work. 2) This fact is not determinative of whether Stivers is now PTD, and the ALJ did not consider it in that manner. He considered res judicata only in the context of his assessment of Dr. Jacobs’ overall opinion as Dr. Jacobs had reported that Stivers could return to his former work. It was res judicata that he could not. The fact that Stivers’ physical restrictions had not formally changed does not prohibit a finding that he is now PTD. The correct analysis was performed.
Disposition: Affirmed
ALJ: Hon.  Chris Davis

Case Name, Citation, Author, Date Entered: Ann Taylor, Inc. v. James McDowell; 2018-SC-000091-WC; Memorandum Opinion Rendered 12/13/2018; Not To Be Published.
Procedural History: The ALJ awarded TTD, PPD, and medicals for McDowell’s right elbow, but dismissed a claim for right shoulder injuries, finding a failure to establish a causal relationship for the injury and failure to provide due and timely notice. The WCB affirmed on the elbow injury, but reversed in part, holding that McDowell gave due and proper notice as a matter of law. It also vacated in part and remanded to the ALJ to make more sufficient findings to support the conclusions on causation. The Court of Appeals affirmed.
Facts: You will probably recognize the brief facts we will discuss, as this is the third time we have brought you this case. McDowell worked for Ann Taylor loading and unloading trailers. A stack fell one day, and he fell injuring his elbow. He also claimed to have hit his right shoulder on the side of the truck as he was falling. There was conflicting evidence on when he complained about the shoulder injury. At the end of PT he did complain to his orthopedic surgeon, Dr. Frank Bonnarens, who performed a surgery after an MRI. WC denied the surgery, so private insurance paid for it. The WCB quoted multiple portions of McDowell’s deposition and hearing testimony, as well as multiple portions of the ALJ’s opinion, and found the evidence regarding notice compelled a different result. The ALJ also failed to provide sufficient findings on which he based his conclusion of lack of causation of the shoulder injury. Thus, additional findings on causation were necessary.
Issues: 1) Did the ALJ fail to provide sufficient findings to support the conclusions that McDowell’s shoulder injury was not caused by the incident on October 2, 2014? 2) Did the ALJ err in concluding that McDowell did not provide due and timely notice of the injury, and thus, the WCB and the COA were correct in finding proper notice as a matter of law?
Holding: 1) Yes 2) Yes
Reasoning: 1) The WCB had held that the ALJ’s conclusions were based upon medical evidence that he did not identify, and such conclusions spanned only two sentences in the ALJ’s opinion. It is not sufficient to state that the decision was based on the total weight of the lay and medical evidence regarding the work accident. The evidence must be summarized, and each doctor’s testimony summarized, not just “referenced” for an accurate and complete basis. 2) The issue of notice is ultimately a legal question but notice also involves factual findings, making it a mixed question of law and fact. The ALJ determines the factual question of when notice is given, but whether notice is adequate and given as soon as practicable is a legal question. Here, the ALJ found that McDowell gave notice on December 16, 2014, based on the MRI report.  The ALJ did not mention, in the analysis section of his opinion, the November 6, 2014 record of Dr. Bonnarens that establishes the right shoulder injury and first establishes the probable diagnosis of a rotator cuff tear and orders the MRI. The ALJ noted that 2 ½ months had passed when the employer was first noticed, but this was not supported by substantial evidence. Dr. Bonnarens was aware of shoulder issues on November 6, and the employer should have known since it received copies of Bonnarens records and recommendations immediately, as well as the recommendation for light duty employment.
Disposition: Affirmed
ALJ: Hon. Steven Bolton

Case Name, Citation, Author: Active Care Chiropractic, Inc. v. Katherine Rudd; 2017-SC-000377-WC; Vanmeter; Rendered 9/27/2018; TO BE PUBLISHED.
Facts: The facts are brief and undisputed. Rudd slipped and fell injuring her shoulder. After 3 surgeries she returned to work, and about a year later retired for reasons not solely related to the work injury.
Procedural History: The ALJ found that Rudd was entitled to the two multiplier since her cessation from work was not due to intentional or reckless misconduct, and that being the only restriction on a claimant’s ability to recover under the statute she should be entitled to the two multiplier.  The WCB and the COA affirmed.
Issues: In a first impression case, does the two multiplier under KRS 342.730 (1)(c)2 apply to a claimant’s benefits when that claimant returns to work and later retires for reasons not solely related to the work-injury itself?
Holding: Yes
Reasoning: The plain language of KRS 342.730(1)(c)2 unquestionably supports Rudd’s position.  Taken at face value, Rudd’s argument is supported by the language of the statute.  Absent any evidence of Rudd’s intentional or reckless wrongdoing, no exception to the unambiguous language of the statute precludes the recovery of the two-multiplier.  
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author, Date Entered: James T. Comley v. Advanced Paving and Construction Inc.; WB No. 201558150; Rechter; Entered 11/2/2018.
Procedural History: Comley appeals from an award in which the ALJ determined he was permanently partially disabled and determined a referral for pain management and contested prescriptions are not compensable.
Facts: Comley was a laborer his entire work life. He graduated high school but was in remedial reading and special education classes. He had help getting his license, cannot write a note to someone, and is computer illiterate. On May 15, 2015, a dump truck he was driving turned over on its side and he immediately experienced low back, leg, left shoulder, and neck pain. He worked until 12/9/2015 until his pain prevented it. Comley had previous treatment for LBP with Dr. Chris Godfrey, and a previous MRI which showed bulging discs from L3 thru S1. He returned to Dr. Godfrey after the accident who saw him for an “acute” visit, and who noted DDD in the cervical area. Comley next treated with Dr. Daniel Meece who noted spinal stenosis and DDD with DDD in the lumbar area. When comparing prior scans, Dr. Meece noted progression in multilevel DDD. He did not believe Comley could return to his job. Comley also treated with Dr. Mitchell Campbell who diagnosed severe degenerative changes and severe spondylosis throughout the spine. Comley saw Dr. James W. Jackson for neurosurgical evaluation. He diagnosed lumbago, lumbosacral radiculopathy, lumbar spondylosis, cervicalgia, and cervical spondylosis with radiculopathy. Conservative treatment had failed and he planned a follow-up to discuss surgery. Dr. John Guarnaschelli performed an IME and diagnosed a muscular/skeletal whiplash related disorder, a questionable acromial clavicular fracture, and DDD of both the cervical and lumbar spine. There was evidence of pre-existing active disease of the cervical and lumbar based on radiographic evidence going back to 2011.There was no evidence of a neurologic dysfunction. He assigned 5% each for the cervical and lumbar spine for a combined 10% and apportioned 50% to the injury and 50% to a pre-existing active condition. There was no return to previous employment. Dr. James Farrage Jr. performed an IME and diagnosed status post cervical and lumbar myoligamentous strains with secondary myofascial pain symptoms and premorbid multi-level axial spine spondylosis. The injury was the cause of complaints. He assigned significant restrictions and a DRE lumbar category II resulting in an 8% WPI, and apportioned 25% to pre-existing condition resulting in a 6% WPI. He assigned 5% for the cervical for a combined 11%, but then also testified there was no active impairment prior to the injury. Dr. Michael Chunn performed a U/R and stated the continued use of Prednisone, Oxycodone, Meloxicam, and Diazepam is not medically reasonable or necessary for the cure and relief of the work injury. The active effects of the injury had passed and there was no indication of anxiety. Stephen Schnacke Ed.D. performed a vocational assessment and there was no active vocational disability prior to the injury. Considering all factors, at a minimum, Comley had a 75% loss. If all of the restrictions were considered, he could not perform sedentary work on a regular and sustained basis. The ALJ determined Comley had an 11% WPI, there was no active problems that caused an impediment to employment, and based on Drs. Farrage and Schnacke, there were no pre-existing active impairment or disability. The ALJ applied the 3.2 multiplier. This case is full of issues that were addressed for the first time on appeal, and therefore not considered. In addition, we will only address the issues that do not deal with substantial evidence.
Issues: 1) Is it necessary to file a motion to select a treating physician prior to pursuing a MFD concerning the reasonableness and necessity of proposed medical treatment? 2) Is it necessary to name medical providers as parties to a MFD?
Holding: 1) No 2) No
Reasoning: 1) KRS 342.020(7) is a permissive and not a mandatory provision. Such a motion is not a prerequisite to pursuing a medical fee dispute. 2) The Form 112 must be served on the medical providers. That regulation is mandatory.  The regulatory language requires joinder “only if appropriate.” The crucial question is whether the medical provider is an aggrieved person to the extent that an adverse ruling in the dispute would provide an independent basis for appeal. In this case, the medical dispute involved a proposed referral for pain management and continued use of prescription medicine. Because the providers have no vested interest in prospective treatment, their inclusion is not necessary.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Hearthstone Place v. Tabatha Harper; WCB No. 201790345; Stivers; Entered 11/9/2018.
Procedural History: Hearthstone appeals from an award of TTD, PPD, and medical benefits for her work-related lumbar sprain. Hearthstone asserts the ALJ erred in allowing the supplemental report of Dr. Anthony McEldowney to be filed in evidence.
Facts: The relevant facts are limited. Harper filed a 9/25/2017 IME report of Dr. Anthony McEldowney who assessed a 7%, and further opined Harper had not yet reached MMI, as she was in physical therapy and a candidate for a trial of injections. On March 2, 2018, Harper filed a motion requesting the ALJ extend rebuttal time through March 17, which was granted. The BRC order is dated April 11, 2018 listing the issue as work-related injury/causation, permanent income benefits per KRS 342.730, duration of TTD benefits, and proper use of the AMA guides. On April 20, 2018, Harper filed McEldowney’s April 20 supplemental report finding Harper at MMI in December, 2018, and now assessing a 6%. On April 23, Hearthstone filed an objection to the filing of McEldowney’s report. At the April 23, 2018, hearing the ALJ stated he would allow into evidence the supplemental report, over Hearthstone’s objection, and leave proof time open until May 23, 2018 to allow Hearthstone to respond to the report. The ALJ awarded 6% with the three multiplier.  On appeal, Hearthstone asserts the ALJ erred by admitting Dr. McEldowney’s’ supplemental report which Harper filed in the record after the BRC as Harper filed to file a written notice to submit additional proof pursuant to 803 KAR 25:010, Section 13 (13).
Issues: Is a written motion showing good cause necessary in requesting additional discovery or proof taken between the BRC and the date of the hearing?
Holding: No.
Reasoning: 803 KAR 25:010 Section 13 (13) gives the ALJ discretion to allow additional testimony or to limit witnesses. Nothing in that regulation or subsequent case law requires a written motion. There is nothing mandatory. This proof was submitted prior to the hearing and did not constitute the only medical proof submitted in support of her claim. It should be noted here that this supplemental report was not the only proof submitted in support of the claim. Further, there was no prejudice here as Hearthstone was allowed four weeks to file responsible proof.
Disposition: Affirmed
ALJ: Hon. Richard Neal

Case Name, Citation, Author, Date Entered: Greyhound Lines, Inc. v. Kerry Slider; No. 2018-CA-000267-WC; Kramer; Rendered9/28/2018; Not To Be Published.
Procedural History: The ALJ awarded Slider 11% PPD. Greyhound appealed, and the WCB only agreed with a part of Greyhound’s argument, and reversed on a very narrow issue. This appeal followed.
Facts: Slider sustained a work-injury to her right shoulder on 10/11/2012. The injury required extensive treatment including scapular muscle reattachment surgery. Dr. Ben Kibler combined his 12% and 6% ratings. Greyhound appeals, arguing that the 6% rating “due to muscle weakness” was actually prohibited by Section 16.8a of the Guides because Dr. Kibler made no findings specifically indicating: (1) the part of the Guides he relied upon to arrive at that rating; (2) that he believed Slider’s injury presented the “rare case” where the individual’s loss of strength represents an impairment factor that has not been considered adequately by other methods in the Guides;(3) he believed Slider’s loss of strength was based on unrelated etiologic or pathomechanical causes; (4)That he believed Slider’s well-documented decreased motion and painful conditions associated with her work injury did not prevent effective application of maximal force in the region of her right shoulder for purposes of assessing her strength in that area of her body.
Issues: Does Section 16.8a of the Guides prohibit the assessment of a rating for a loss of strength? Did the employer properly challenge the rating?
Holding: No.
Reasoning: Slider’s pain and decreased motion, and their inclusion in the assessment for a rating under the Guides is a medical question properly left to the examining physicians. While Dr. Fadel did not agree with Kibler’s rating, his reports were not provided in direct response to Dr. Kibler’s rating, and there was no indication that he reviewed Kibler’s Form 107. Greyhound did not object to the admission of Dr. Kibler’s opinion. These are nothing more than conflicting opinions as to the ratings and the proper application of the Guides. The ALJ enjoyed the discretion to choose whom and what to believe.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin
COA Panel: Kramer, Clayton, and Nickell

Case Name, Citation, Author, Date Entered: Ford Motor Company v. Deborah Duckworth; WCB No. 201390836; Rechter; Entered 11/16/2018
Procedural History: Ford appeals from a finding that Duckworth suffered cumulative trauma injuries to her neck and back which manifested on 3/22/2010 and 10/10/2011. Ford argues Duckworth’s injuries manifested on November 8, 2007, and therefore, are time barred.
Facts: The sufficiency of the evidence was not questioned, only the ALJ’s authority to determine a manifestation date for Duckworth’s cumulative trauma, so a detailed recitation of the proof was not provided. Duckworth worked on the assembly line at Ford since 1998. She began experiencing neck pain and visited Ford Medical on 11/8/2007 to report neck pain. She visited Medical several times over the next few years. She sustained work injuries to the neck on 4/12/2012, and 10/2/2012. Following a complete spine MRI on 1/7/2013, cervical spine surgery was performed on 4/9/2013 and lumbar spine surgery on 11/29/2013. In her Form 101 she alleged cumulative trauma to the neck and back which manifested 11/8/2007, and that she had continued to work until the culmination of her problems coming with the MRI and eventual surgery.  Ford filed a special answer alleging the claims were time barred. The BRC order listed several dates of injuries, and that they were “at issue.” The ALJ sua sponte found the date of manifestation occurred on 3/22/2010, which is the date that Dr. Rodney Chou stated in his records that her low back pain was due to repetitive injury. The ALJ noted the Ford records establish that she was told her low back was work related on 10/10/2011, and on 3/27/2013 that her neck condition was work-related. Prior to those dates Ford had repeatedly listed her neck condition as an “illness.”
Issues: Did the ALJ exceed his scope of authority when he sua sponte determined Duckworth’s cumulative trauma injuries manifested on 3/22/2010 when Duckworth stipulated the manifestation date of her injuries as November 8, 2007?
Holding: No
Reasoning: Duckworth simply stated on her Form 101 that her neck and back injuries manifested on 11/8/2007, the date of her first visit to Ford Medical, she was not stipulating. In cumulative trauma injury claims, the term “manifestation” can have dual meanings. The date of injury manifests might refer to the day when symptoms or disability arise, and may constitute toe starting date for liability. This meaning differs from the manifestation date for purposes of notice and statute of limitations.  As the ALJ correctly noted, 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.
Disposition: Affirmed
ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: Bryan Trent v. UPS; WCB No. 201568271; Alvey; Entered 11/9/2018.
Procedural History: Trent appeals an order dismissing his claim for additional TTD and that he was not entitled to an award of PPD. The WCB affirmed the ALJ’s findings on substantial evidence. The issue in this case is the findings of the WCB, sua sponte, which will be reviewed.
Facts: Due to the issue being a narrow one, only a few facts are necessary. The parties stipulated a work-related right shoulder injury on 9/17/2015. The ALJ dismissed the claim, however, failed to make a determination regarding Trent’s entitlement to medical benefits, nor did she make a determination that he was entitled to the TTD benefits which were voluntarily paid by UPS while Trent was recovering from surgery, nor was there a determination that a work-related injury occurred.
Issues: Were the findings of the ALJ sufficient concerning the issues in this case?
Holding: No
Reasoning: The ALJ made no specific finding that Trent sustained a work-related injury, although there appears to be no issue that this occurred on 9/17/2015. This may be inferred by the stipulations of the parties. The voluntary payment of medical benefits, and the fact that he underwent a shoulder surgery requires a specific determination by the ALJ. This includes the voluntary payment of TTD made by UPS, which was stipulated to, and already paid. The entitlement to medical benefits, including future medical benefits must be addressed by the ALJ.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author, Date Entered: AGI Transportation, Inc. v. Orlando Adkins; No. 2018-CA-000861-WC; Combs; Rendered 11/30/2018; Not To Be Published.
Procedural History: AGI appeals from a WCB opinion affirming an award of TTD following a remand to the ALJ. The discussion of the record in the opinion was limited to the issue before the COA.
Facts: Following Adkins’ injury on 12/8/2013, he performed light work until 7/2/2014 when his restrictions could no longer be accommodated. Adkins earned $8.00 per hour on light duty, far less than his pre-injury AWW of $906.55. AGI’s carrier voluntarily paid Adkins temporary partial disability benefits while on light duty. The ALJ determined that the light duty work was necessary to AGI’s business. In the original award, the ALJ found that Adkins was not entitled to TTD benefits when on light duty, and awarded a subsequent period of TTD after Adkins stopped working light duty until MMI-as well as PPD benefits with a credit for benefits previously paid. Adkins appealed to the WCB, and the WCB directed the ALJ on remand to set forth an analysis of Adkins entitlement to TTD during the time he performed light duty exercising the standards in the Trane case. The ALJ then awarded TTTD benefits from 1/24/2014 through 6/2/2014. AGI appealed to the WCB, which affirmed because the ALJ performed the appropriate analysis. On appeal, AGI now argues the ALJ’s original decision denying TTD benefits was correctly analyzed under Trane and should be reinstated. The ALJ determined that Adkins’ light duty wages qualified as an extraordinary circumstance because they were approximately one-half of the TTD rate. He could not award temporary partial disability because KRS Chapter 342 does not recognize it. The WCB concluded the appropriate analysis under Trane was made and supported by substantial evidence.  The WCB determined that AGI was not entitled to a credit for bona fide wages under the law in effect at that time.
Issues: Sua sponte, the COA raised as an issue on appeal whether or not AGI was entitled to a credit for bona fide wages under the law in effect at that time.
Holding: Under the new KRS 342.730 (7), part of HB 2,Yes.
Reasoning: Under the new statute, TTD benefits when paid during a period when the employee has returned to light duty shall be offset by an amount equal to the employee’s gross income minus taxes during the period of light-duty work or work in an alternative job position. KRS 342.730 (7), as amended by HB 2, was applied retroactively, contrary to a prior COA opinion which had found that the retroactive provision in the Act was not made part of the statute.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. John B. Coleman
COA Panel: Combs, D. Lambert, Smallwood

Case Name, Citation, Author, Date Entered: University of Louisville v. Celestine Lanier; No. 2018-CA-000687-WC; Smallwood, Rendered 11/30/2018; Not To Be Published.
Procedural History: UL appeals from an award of the WCB which awarded Lanier 425 weeks of PPD. UL claims Lanier was only entitled to benefits for two years. IMPORTANTLY, the COA said the WCB erred when it awarded Lanier benefits without consideration of the new version of KRS 342.730(4).
Facts:  The relevant facts are limited. Lanier had already reached Social Security retirement age on the date of her injury. The WCB awarded Lanier 425 weeks of PPD while the University of Louisville argued that Lanier was only entitled to receive benefits for two years. Lanier was 67 when she was injured. The parties agreed upon a PPD rate of $8.35 per week, but disagreed as to how long it was to be paid. At the time of the injury KRS 342.730(4) provided for benefits to be paid for up to two years. The parties entered into a settlement which stated Lanier would be awarded disability benefits of $8.35 per week until she reached Social Security retirement age, and referenced the two year limitation. The agreement provided the ALJ would determine the constitutionality of KRS 342.730 (4) issue. After approving the agreement, the ALJ held that he had no authority to rule on the KRS 342.730 (4) issue. Lanier appealed to the WCB, and by that time the Supreme Court had ruled on Parker v. Webster County, and so the WCB awarded 425weeks of benefits. This appeal followed.
Issues: 1) Did the WCB have jurisdiction to hear the appeal? 2) Is the amended version of KRS 342.730(4) passed by HB 2 to be applied retroactively here?
Holding: 1) Yes 2) Yes
Reasoning: 1) The Parties specifically contemplated further action would be needed to determine the end date of Lanier’s benefits. It would be unreasonable to find that the approved settlement was final even though it stated multiple times that the constitutionality of KRS 342.730 (4) was being reserved. A motion to reopen was not required. 2) The new version of KRS 342.730(4) controls and the ALJ should determine a proper end date using the revised version of the statute. The Legislative Research Commission’s note that accompanies the statute states that KRS 342.730(4) “shall apply prospectively and retroactively to all claims…(b) that have not been fully and finally adjudicated…”
Disposition: Affirmed in Part, Reversed in Part, and Remanded
ALJ: Hon.  Douglas Gott
COA Panel: Combs, D., Lambert, and Smallwood

Case Name, Citation, Author, Date Entered: McCoy Elkhorn Coal Corp.-Insolvent Employer; Kentucky Coal Employers Self-Insurance Fund, and its TPA Healthsmart v. Jeannie Sargent, as Widow, Personal Representative, and Administratrix of the estate of Farley Sargent II, and as Guardian of the Minor Children; 2017-SC-000616-WC; Hughes; Rendered 8/16/2018; TO BE PUBLISHED.
Procedural History: The Self-Insurers Guaranty Fund, which assumed the obligations of its insolvent member, and the ALJ held it responsible for the 30% enhancement arising from the employer’s safety violations. The WCB and the COA affirmed. The Guaranty Fund now appeals to the Supreme Court.
Facts: Sargent was killed in a work-related accident on June 25, 2012. MSHA cited the employer for 3 violations, and as a result, the ALJ enhanced the award by 30% as mandated by KRS 342.165(1). The Guaranty Fund contests whether the 30% safety violation enhancement was appropriate, and, if so, whether the Guaranty Fund, a statutorily-created entity was obligated to pay it, maintaining  that it was not responsible for the enhancement because guaranty funds  are not responsible for “any penalties or interest” pursuant to KRS 342.910(2). On appeal, the Guaranty Fund no longer contests the finding of the intentional safety violations, but only that it was not responsible for any “penalties and interest.”
Issues: Is the Guaranty Fund responsible for the 30% increase in normal death benefits attributable to the employer’s safety violations?
Holding: Yes
Reasoning: The Guaranty Fund was created by statute “for the purposes of meeting the obligations of insolvent individual self-insured employers….”  All moneys, exclusive of costs shall be used solely to compensate persons entitled to receive workers compensation benefits from a Kentucky member who has defaulted….” The Supreme Court goes onto distinguish between a penalty as sought by the Commissioner versus an enhancement sought by a claimant.
Disposition: Affirmed
ALJ: Hon. Jeannie Miller

Case Name, Citation, Author, Date Entered: Leslie Hall (Morrison) v. Hosparus, Inc.; WCB No. 201560004; Rechter; Entered 9/21/2018.
Procedural History: Morrison appeals from an Opinion and Order awarding a period of TTD and medical benefits, but denying PPD.
Facts: Morrison was an admission and referral coordinator for Hosparus who fell in a patient’s home on June 14, 2015, injuring her head, leg, wrist, and low back, with radiating pain. Prior to this, she had treated with Dr. Melissa Barrett in 2012 for low back pain. She had also seen Drs. Werner and Guarnaschelli. She had last seen Dr. Barrett on 2/4/2015 for the back pain. Following the accident, she was seen the next day by Dr. Ann Walker, but she did not report low back pain. When she returned one month later, she did report low back pain. She treated with Barrett until referred to Dr. Werner, a neurosurgeon, who diagnosed lumbar strain with aggravated mild spondylosis. He released her to work with restrictions. In a later visit he diagnosed aggravated lumbar disc degeneration, but could offer no further treatment. Dr. Dan Woolens did a records review and concluded Morrison suffered chronic and active low back pain prior to the 2015 fall, and the fall did not create a new injury. Barrett eventually referred Morrison to Dr. Gary Reasor, a pain management specialist who diagnosed sacroiliitis and low back pain. He assessed 11%: 3% for pain and 8% for the right SI joint, and noting that the Guides do not specifically provide for an impairment for the sacroiliac. Later, on a Form 107, he stated that she only had 3% for the pain, however, complaints were related to the injury. Dr. Martin Schiller performed an IME, concluded a pre-existing symptomatic low back pain which was active and recurrent. Her back had returned to baseline status by the time of her exam. He declined to assess an impairment rating. Dr. Robert Sexton performed an IME and diagnosed a lumbar myofibrious strain without additional discopathy, radiculopathy, myelopathy or neuropathy; resolved, and chronic low back pain secondary to mild spondylosis. He thought she had suffered a strain with aggravation of chronic low back complaints that had returned to baseline. He assessed 5% for a pre-existing low back pain, and 0% impairment for sacroiliac injury, and no further treatment. Dr. Reasor’s 13% is inappropriate usage of the Guides. Dr. Reasor responded with his explanation of his rating, and that the Guides provide no clear-cut ratings pertaining to sacroiliitis. He used the ratings on page 428 because it contains some references to the sacroiliac joint, though the reference is to displace fractures. The ALJ relied on Drs. Sexton and Woolens in finding no disability and no future medicals.
Issues: 1) Did the evidence from Drs. Woolens and Sexton constitute substantial evidence? 2) Did the ALJ fully apprise the parties of the basis of his decision? 3) Did the ALJ correctly decide whether the AMA Guides were correctly used in regards to the sacrum or the ilium?
Holding: 1) Yes 2) Yes 3) This question is inconsequential because Dr. Sexton found no injury to this joint and the ALJ agreed.
Reasoning: 1) Woolens conducted his review after the ALJ determined Morrison had reached MMI. He reviewed records before and after the work accident and had an accurate understanding of the evidence. Dr. Woolens’ opinion was based upon evidence at the time of his review. Dr. Sexton was fully aware of the sacroiliac joint, and actually referred to it in his report. He clearly discussed the mechanics of the injury with the alleged injury. 2) Through his acceptance, reference, and adoption of Dr. Sexton’s report, the ALJ adequately apprised the parties of the basis of his decision.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Brian Strozzo v. Cesa Contractors; 2018-SC-000119-WC; Memorandum Opinion; Rendered 9/27/2018; Not To Be Published.
Procedural History: The ALJ dismissed Strozzo’s claim finding that his symptoms pre-dated his work at Cesa and became manifest before his employment by Cesa. The WCB upheld the ALJ’s order, and on appeal, the COA affirmed the WCB.
Facts: Strozzo’s medical concerns arose in the summer of 2013 while working for American Contractors when he began noticing numbness and tingling in 3 fingers. After he left there, the symptoms stopped. On 8/5/2014 he informed his primary physician about a sore on the tip of his finger which he believed to be concrete poisoning. The finger healed. Thereafter he worked for another company, and contacted “concrete poisoning.” On 9/28/2015 he went to work for Cesa using vibratory tools. On 9/8/2015 he went to a doctor for painful swelling in his fingers, and was referred to Dr. Scott Sanders for circulatory evaluation. Tests revealed occlusions in the ulnar arteries of both wrists. He was diagnosed with classic hypothenar hammer syndrome (“HHS”) and referred to Dr. Scott Farner who performed ulnar artery reconstruction at both wrists. Dr. Sanders then testified that Strozzo’s condition was “likely work related.” Strozzo alleged a cumulative trauma work-related injury to both hands. Strozzo was seen by Dr. Thomas Gabriel for an IME who concurred with the HHS diagnosis. However, his condition was not caused by employment at Cesa. The ALJ dismissed Strozzo’s claim, finding that the symptoms pre-dated his work at Cesa, and that Strozzo had not proven his injury was causally-related to his work for Cesa. The WCB then affirmed the ALJ decision, and the WCB was in turn affirmed by the COA.
Issues: Was the ALJ conclusion that Strozzo had failed to demonstrate a work-related injury claim against Cesa sufficiently supported by the evidence?
Holding: Yes
Reasoning: Strozzo’s hand problems manifested in the summer of 2013 and persisted throughout his work history until culminating in the need for left and right ulnar artery reconstruction surgeries in the summer of 2016. Notably the medical experts provided that HHS is commonly caused by repetitive use of vibratory tools and sudden-impact tools. Strozzo was a laborer who used his hands for rough manual labor during his entire career and was a jackhammer operator in 2013 when his symptoms first arose.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Tyson Foods, Inc. v. John Burgard; WCB No. 201700958; Alvey; Entered 9/21/2018.
Procedural History: Tyson appeals from an award of PPD and medical benefits, alleging the findings do not comport with applicable law.
Facts: Burgard injured his right shoulder on 9/5/2016. He was a truck driver at the time of the injury of his right leg for reasons unrelated to the work accident, but continued to work without missing work in a light duty position. He had previously undergone an above the knee amputation. After surgery for his shoulder he continued to experience pain, and this pain worsened after he fell at home attempting to get out of the shower. He does not believe he can return to work as a truck driver. On 12/9/2016, Dr. James Dodds performed an orthoscopic surgery with rotator cuff repair and subacromial decompression. After the fall, Burgard underwent additional surgical repair on 4/17/2017. Dr. Dodds thought that the fall occurred during a critical time in repair, that the original tear was large, and there is a difficult repair process, and that falls often result in these type injuries. Burgard filed the report of Dr. James Farrage who opined the work injury caused the condition, and, the original injury and repair placed Burgard at a greater risk for re-tear. He noted the minor fall at home. Farrage assigned 16% with restrictions. Burgard also filed Dr. Mark Smith who noted the injuries and the surgeries and recommended additional surgical repair. Tyson filed Dr. Stacie Grossfeld who noted the original injury, and added that Burgard had an old chronic rotator cuff tear prior to the accident, but was unable to assess an impairment for it. The fall at home was unrelated to the injury. He had at least 6% following the surgery, but before the fall at home. The ALJ found the first injury was work-related, and the second injury was a fortuitous, unexpected injury traceable to work, and awarded PPD based on Dr. Farrage’s 16%.
Issues: Is the subsequent re-injury to the shoulder at home related to the work-injury?
Holding: Yes
Reasoning: The ALJ found that the shower incident would not have occurred without the 9/2016 injury and the December 2016 surgery.  He cited the records and opinions of both Drs. Dodds and Farrage in his orders. Dr. Farrage specifically stated the injury and surgery placed Burgard at increased risk of a re-tear, and this is exactly what occurred. These notes and opinions are substantial evidence.
Disposition: Affirmed
ALJ: Hon. John Coleman

Case Name, Citation, Author, Date Entered: James Pendergraff v. Ken American Resources; WCB No. 201702078 & 201702075; Stivers; Entered 10/19/2018.
Procedural History: Pendergraff appeals from an award of PPD and medical benefits for a work-related cumulative trauma hearing loss injury. His denial of other cumulative trauma injuries was not appealed. Pendergraff asserts on appeal that he is entitled to PPD benefits enhanced by the three multiplier due to his work-related hearing loss.
Facts: We will only deal with the hearing loss claim. The filed Form 101 alleged work-related hearing loss due to “repetitive exposure to loud noise in the workplace.” Pendergraff retired from work due to his pain from other injuries, and further testified that in the mines you have to be aware of the sounds around you for safety reasons, and wearing heavy-duty hearing protection would not allow him to perform his job safely in the mines at all times. Drs. Raleigh Jones and Petra Osetinsky were university evaluators from the University of Kentucky. Their Form 107 stated that Pendergraff suffered from an occupation-related noise-induced sensorineural hearing loss, which is a 22.2% impairment which translates to 8% whole person. For restrictions, the doctors replied: “Use of hearing protection.” The ALJ denied the enhancement, partly because he stated that Pendergraff did not attribute any limitations to his ability to work from his hearing.
Issues: Did the totality of the evidence, including Pendergraff’s testimony regarding the potential problems associated with wearing hearing protection in the context of underground mining compel a different result?
Holding: No
Reasoning: In a decision that seems to run contrary to earlier decisions which involved similar restrictions, the WCB refused to overturn the ALJ’s decision concerning enhancement of benefits. Persuasive to the ALJ was Pendergraff’s testimony that he stopped working in the mines due to weight loss and that he was unable to function in the same manner as he had been functioning.
Disposition: Affirmed
ALJ: Hon.  Greg Harvey

Case Name, Citation, Author, Date Entered: Hitachi Automotive Systems Americas, Inc. v. Marcus Coots; No. 2018-CA-000087-WC; Jones; Rendered 10/19/2018; Not To Be Published.
Procedural History: Hitachi appeals the WCB opinion asserting the WCB misinterpreted the term “suspend” as used in 803 KAR 25:096 sec.3 (5) when it upheld the ALJ’s conclusion that Coots’ failure to file the required Notice to Designate Physician Form 113 worked to delay-not eliminate- his benefits during the period of noncompliance.
Facts: Due to the nature of the issue on appeal, the facts will be limited. Following a 9/11/2013 injury, Coots filed his claim. Hitachi opposed a surgery to the right arm following a diagnosis of compression of the ulnar nerve, so the claim was bifurcated. The ALJ determined the injury was work-related, and ordered payment of TTD and medicals, placing the claim in abeyance pending MMI, ordering TTD and medicals be paid until MMI. Following additional testing, the proposed surgery was deemed no longer necessary and Coots RTW. The claim was removed from abeyance. While being treated by Dr. Makut Sharma, Coots was diagnosed with severe right cubital tunnel syndrome, and Dr. Sharma performed a right ulnar nerve decompression and sub-muscular transposition and right medial epicondylectomy on 7/24/2015. Several months later Coots moved to reinstate the TTD due to the surgery and because he was not at MMI. Hitachi disputed the surgery charging, inter alia, that Dr. Sharma had not filed a treatment plan, did not seek pre-authorization, and had not been designated as Coots’ Form 113 physician. The ALJ sustained Coots’ motion to reinstate benefits. In his award, the ALJ awarded PPD and TTD, and found that Coots unreasonably failed to designate Dr. Sharma as his Form 113 physician, and, as a result, concluded the payment of TTD benefits was suspended until Coots complied with the regulation. The ALJ also determined that Hitachi could not be held responsible for the surgery by Dr. Sharma because Dr. Sharma failed to provide a treatment plan and a statement of services. Both parties appealed to the WCB. The WCB concluded the failure to file a plan was inconsequential because it was unclear that a plan was required, and if so, the Regs do not provide a penalty. Remand was required however because the ALJ failed to address whether reasonable grounds exist which would excuse Dr. Sharma’s failure to timely submit a statement for services. That was not appealed. The WCB also found, after examining the language of the regulation (803KAR 25:096 sec. 3(5)), that the ALJ’s conclusion that the term “suspend” denoted a temporary suspension only, and that once Coots filed the Form 113, Hitachi was responsible for paying the entire amount of TTD the ALJ ordered.
Issues: Did the WCB correctly determine that the suspension of benefits for failing to file a Form 113 referred to in 803 KAR 25:096 sec.3 (5) is temporary?
Holding: Yes
Reasoning: In relevant part, 803 KAR 25:096 sec. 3 provides:
“1) Except for emergency care, treatment for work-related injury or occupational disease shall be rendered under the coordination of a single physician selected by the employee. The employee shall give notice to the medical payment obligor of the identity of the designated physician by tendering the completed Form 113, including a written acceptance by the designated physician, within ten (10) days after treatment is commenced by that physician.
(5) The unreasonable failure of an employee to comply with the requirements of this section may suspend all benefits payable under KRS Chapter 342 until compliance by the employee and receipt of the Form 113by the medical payment obligor has occurred.”
The regulation does not suggest benefits are “not payable” during the period of noncompliance. To the contrary, the Regulation indicates that the suspension lasts only until the employee complies by submitting his Form 113, and, the suspension is not mandatory. The Regulation provides “may suspend” the benefits, and suggests the ALJ retains the discretion to determine whether suspension is warranted. In a footnote, the COA believed that on remand, the ALJ should consider whether it is necessary to add Dr. Sharma as a party since the payment of his statement is between he and the carrier, since Coots has no responsibility to pay  if Sharma failed to timely bill. Coots has no stake in this, and it would appear that Dr. Sharma should be provided with the opportunity to respond to Hitachi’s assertions.
Disposition: Affirmed in Part and Remanded
ALJ: Hon. Jonathan R. Weatherby
COA Panel: Acree, Jones, and Thompson

Case Name, Citation, Author, Date Entered: Denise Zoeller v. Amazon; WCB No. 201564228 & 201563513; Alvey; Entered 9/28/2018.
Procedural History: Zoeller appeals from an award which found that she suffered a temporary injury due to a 7/18/2015 work incident in which the ALJ awarded medical benefits already paid, but found Zoeller was not entitled to future medical treatment. Kudos to Lori Daniel of Ferreri Partners representing Amazon for the win.
Facts: Zoeller filed alleging an injury to her shoulder on July 18, 2015. A separate claim for a cervical injury on another date was also filed, but was not the subject of the appeal. Following the incident, Zoeller was treated at Amcare, Hardin Memorial Hospital, and eventually Dr. Stacie Grossfeld. She returned to light duty, and eventually regular duty before her cervical injury of 10/1/2015. She then returned to light duty thru 11/21/2015. Grossfeld diagnosed advanced DJD of the cervical spine at C5-6, pre-existing and active with a new work-related right biceps tendonitis and right AC joint pain. After further treatment, Grossfeld suggested a second opinion. Zoeller saw Dr. Rodney Chou who diagnosed cervical sprain and pain in the limb, and found MMI. She also saw Dr. Craig Roberts for right shoulder pain, and who diagnosed acute right shoulder pain, arthritis of the right AC joint, and right shoulder impingement syndrome. When Roberts last saw her she was being treated by Dr. David Changaris. After treatment and testing, Changaris referred her to a neurosurgeon for cervical surgery consultation. Amazon filed Dr. Ellen Ballard who doubted any injury that may have allegedly been incurred due to the mechanics of the alleged incident. Reviewing a cervical MRI, she thought there could be a cervical age related problem and not work=related, but she should follow up on this. She indicated the original injury “may have been a strain.” She found MMI by 8/18/2015, and declined to assess a rating or assign permanent restrictions for the strain injury, but did assign 6% for the non-work related cervical condition. Zoeller filed Dr. Anthony McEldowney’s report wherein McEldowney diagnosed a right paracentral disc protrusion at C6-7 causing stenosis, and opined her 7/18/2105 injury caused the complaints. He assessed 16%, said she needed further treatment, and assigned permanent restrictions. The ALJ relied upon Dr. Ballard’s opinion that Zoeller had not sustained a permanent injury, but only a temporary one, from which she recovered. No TTD was awarded, and medical benefits were awarded only to the extent of those previously paid, with no future medicals.
Issues: Was the finding of the ALJ that the Plaintiff had only sustained a temporary injury, and was not entitled to future medical benefits supported by the evidence?
Holding: Yes
Reasoning: The ALJ relied upon Dr. Ellen Ballard’s opinion. Dr. Ballard went into great detail and performed a complete analysis of the evidence in forming her opinion. The ALJ did likewise. While there was evidence to support the Plaintiff, the ALJ was free to choose to rely upon the evidence that he did.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Big Lots, Inc. v. Loritta F. Whitworth; WCB No. 200874483; Alvey; Entered 10/5/2018
Procedural History: Big Lots appeals from an order overruling its motion to reopen to reduce Whitworth’s award of PTD based on a change of disability pursuant to KRS 342.125 (1) (d). It argues that the CALJ erred in finding that it failed to set forth prima facie evidence in support of its motion.
Facts: On March 10, 2008, the CALJ awarded Whitworth benefits based on an 11% rating for a left shoulder condition, enhanced by the 3. Whitworth filed a MTR alleging a worsening, and a needed surgery for a cervical condition. The ALJ, relying on a 25% rating for the cervical condition assessed by Dr. Doyle and the 11% previously awarded, determined that Whitworth was PTD. On 6/16/18, Big Lots filed a MTR based upon a change of disability shown by objective medical evidence. In support, Big Lots filed an IME of Dr. Michael Best who had re-evaluated Whitworth, having previously evaluating him on the first re-opening. The ALJ overruled the MTR, noting that Dr. Best does not even acknowledge the prior ALJ’s decisions, and that his opinions of ratings did not change in his two separate reports, and that in neither report did Dr. Best recommend restrictions.
Issues: Did the ALJ abuse his discretion when he determined that Big Lots had failed to present a prima facie case for reopening, and therefore overruled the MTR?
Holding: No.
Reasoning: Big Lots failed to present prima facie evidence demonstrating a substantial possibility of success. The 2012 report of Dr. Best is largely identical to the one prepared in 2018. It provided identical diagnoses impairment rating, causation, MMI, restrictions, and the ability to return to a former job. Neither report found the injuries work-related. The report further fails to address or acknowledge the ALJ’s finding of PTD, nor establish a basis for finding a change of disability as shown by medical evidence of improvement of impairment due to a condition caused by the injury sine the date of the 2013 opinion and award. There was no explanation or discussion addressing why Whitworth is no longer totally disabled.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Jet Coal, LLC v. Michael Alley; WCB No. 201602466 & 201602269; Rechter; Entered 10/5/2018.
Procedural History: Jet appeals from a determination that Alley sustained cumulative trauma injuries to his neck and knees, but failed to prove injuries to his shoulders, arm/wrists, legs/feet, or low back. Jet challenges the determination that work caused the injuries, and further claims that Alley was not an employee on the date of manifestation of his cumulative trauma injuries.
Facts: Alley alleges cumulative trauma injuries complicated by depression and anxiety. He worked in mining for 30 years primarily underground. His work required constant reaching overhead. He began working for Jet in early May, 2016, and was laid off on June 22, 2016. He would have quit if not laid off, and has not worked since then. Dr. Debra Hall examined Alley on 5/19/2016, and diagnosed cervical and lumbar DDD, chronic pain, peripheral neuropathy and depression. Dr. Eric Akers, D.C. evaluated Alley on 12/22/2016, and noticed a significant decrease in cervical range of motion, including rotation, flexion, and extension. He noted moderate cervical spasm. Dr. David Muffly performed an IME on 1/12/2017 and diagnosed mild cervical degenerative changes, normal bilateral knee examinations and x-rays. There was no sign of cumulative trauma. Degenerative change was consistent with age. He assigned 0%, no restrictions, and no medical treatment was necessary. Dr. Anbu Nadar performed an IME on 9/5/2017, noting a history of 30 years in mining. After examination, and reviewing records he diagnosed chronic lumbar and cervical strain with radiculopathy, and bilateral patellofemoral arthrosis. He agreed with cumulative trauma from multiple injuries and assigned restrictions. He assigned 5% for the cervical and 2% for each knee. There was no active impairment prior to the injury. He could not return to the work at the time of the injury. Relying on Dr. Nadar and Alley’s testimony, the ALJ found a compensable cumulative trauma injury to the neck, determining Alley’s job duties aggravated his degenerative changes. He found the same for the bilateral knee injuries. The ALJ found no evidence that the conditions were impairment ratable immediately before he last worked, or that the non-work related condition/injury caused the alleged prior impairment. The ALJ determined the manifestation date to be 9/5/2017, the date a physician concretely diagnosed gradual injuries and advised Alley his repetitive work duties caused them.
Issues: 1) Did the ALJ understand and properly analyze the evidence in reaching his conclusions? 2) Did the ALJ correctly determine the manifestation date when he found it to be after the date the Claimant last worked for the employer?
Holding: 1) Yes 2) Yes
Reasoning: 1) Dr. Nadar clearly and repeatedly stated his medical opinion that Alley suffered cumulative trauma injuries to his neck and knees. He twice declined the opportunity to apportion some of the current impairment to a pre-existing condition. His findings were documented by examination and review of all of the medical records, including objective testing.
2) In a cumulative trauma claim, the date of manifestation for purposes of notice and statute of limitations is the date the claimant is advised by a physician that he has an injury and it is work-relate. Here, the ALJ determined the manifestation date of Alley’s alleged cumulative trauma injuries was 9/5/2017, the date of Dr. Nadar’s report. The ALJ concluded that Jet Coal was solely liable for Alley’s cumulative trauma injuries because it was the last employer at which Alley sustained cumulative trauma. It was uncontroverted that Alley had no employment after being laid off by Jet Coal, nor any evidence of any non-work-related event or cause contributing to his conditions after he ceased working for Jet Coal. Alley’s impairment may reasonably be determined to arise with his last trauma on June 22, 2016. As the last employer where Alley sustained cumulative trauma, Jet Coal is liable even though Alley did not become aware of the diagnosis of the cumulative trauma injuries until after ceasing employment with Jet Coal.
Disposition: Affirmed
ALJ: Hon.  Brent Dye

Case Name, Citation, Author, Date Entered: Reed & Damron Trucking Co., Inc. v. Rocky Barnett; No. 2017-CA-000996-WC; Clayton; Not To Be Published
Procedural History: R & D appeals a WCB decision which vacated and remanded the ALJ decision that had decided a MFD in its favor. The WCB held that no basis existed to dismiss the appeal to the WCB because of the failure to name the medical providers as indispensable parties, and, that res judicata barred the re-litigation of a previously adjudicated matter, and, consequently, the ALJ was bound by the previous decision.
Facts: Barnett was awarded PTD in 2006 for a surgical fusion lumbar injury in which the three ratings were 23%, 23%, and 20%. A MFD in 2016 was decided in R & D’s favor wherein the ALJ denied certain medications, Gaymar Tpad machine and office visits to Dr. Lela Maynard (now Johnson) as not reasonable and necessary. The ALJ had relied on the opinion of Dr. David Jenkinson who believed that the imaging studies revealed no significant abnormality in the lumbar spine, and, since the inception of the matter, Barnett had only had subjective complaints. Barnett appealed to the WCB arguing his injury could not now be transformed back into a back strain, Dr. Jenkinson ignored the surgery, and that his medical opinions contradict the ALJ’s findings, and thus are not relevant since the ALJ’s original findings are res judicata. The WCB vacated and remanded.
Issues: 1) Should the WCB have dismissed Barnett’s appeal because he did not name the medical providers as parties? 2) Were the medical providers considered to be indispensable parties to the appeal? 3) Did the WCB exceed its scope of review in the appeal and substitute its judgment for that of the ALJ as to the weight of the evidence?
Holding: 1) No 2) No 3) No
Reasoning: 1) The regs in MFDs mandate providing notice to the medical providers, but joinder is permissive-“if appropriate.” Secondly, this language references the re-opening of the matter but does not reference appeals after the ALJ has entered his opinion. [See 803 KAR 25:012 sec. 1(6)]. This reg deals with a claim wherein a final order has been entered, as is the case here. When an application for adjustment is pending, 803 KAR 25:012 sec. 1 (5) applies and requires the moving party to a fee dispute to join the medical provider as a party to the dispute. In sum, while the regulations require that the medical providers be joined when an adjustment decision has not been made, in adjudicated matters joinder is permissive both at the hearing level and at the appeal level. Neither medical provider had a stake in the litigation. The issue is simply whether or not R & D must pay the medical fees. 2) Again, the issue is simply whether or not R & D must pay the medical providers. Their bills were not in question. 3) R & D contended that there was conflicting medical evidence and that the WCB substituted its judgement for that of the ALJ. The WCB and COA pointed out that the opinions of R & D’s physicians, Drs. Chunn and Jenkinson, questioned the original diagnosis and treatment in the case and both concluded that continuing treatment is not needed since Barnett had no objective abnormality following the original injury. The WCB concluded that ALJ Cowden’s decision was a final judgment, and the diagnoses of Drs. Chunn and Jenkinson had no probative value since they were not in conformity with the ALJ’s findings. These doctors at this stage of the claim are not permitted to litigate whether Barnett suffered a work-related lumbar spine injury. They repute the original final decision and the doctrine of res judicata bars re-litigation of a previously adjudicated matter involving the same parties.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby
COA Panel: Clayton, Johnson, and Nickell

Case Name, Citation, Author, Date Entered: Phillip U. Bibb v. Brooks Brothers; WCB No. 201581519; Stivers; Entered 9/14/2018.
Procedural History: Bibb appeals from a dismissal of his claim for failure to prove he sustained an injury as defined by the Act.
Facts: Bibb filed his claim for a left ankle injury that occurred on 12/22/2014 when his ankle twisted and he fell off a ladder. Bibb had an arthroscopic surgery on his left ankle in 2010 for a 2005 injury. He began seeing Dr. Donald Ansert in October, 2014 for ankle pain while working for Brooks Brothers. After the work event Bibb returned to Dr. Ansert, who referred him to Dr. Adams who ultimately performed a total ankle replacement. He testified he told both physicians about the work event. Dr. Adams testified that Bibb never told him about a work injury, confirmed by his records. He related everything to the 2005 injury. Dr. Ansert testified that Bibb did not provide a history of an acute injury, and this too was confirmed in his records. A Senior Regional HR business partner with Brooks reviewed the video spanning the time of Bibb’s alleged injury and did not see any kind of a fall. The original of the video was not tendered. The ALJ, citing the fact that neither treating physician had any records of a history of work injury, dismissed the claim.
Issues: Did the ALJ err in dismissing this claim for lack of any medical evidence to support the claim?
Holding: No
Reasoning: Simply no evidence existed. The treating doctor’s records contained no reference to a work injury.  Bibb’s reference to the ALJ’s inference that the 2010 surgery was unsuccessful simply did not exist. The absence of the video had no bearing on the decision as the case was dismissed for other reasons. The video played no role in the decision.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: Michelle Puckett v. Bardstown Independent Schools; WCB No. 201665080; Alvey; 8/31/2018.
Procedural History: Puckett appeals an ALJ decision finding she failed to prove a work-related injury as defined by the Act, and dismissing her claim.
Facts: Puckett alleged a low back injury on 9/26/2016 carrying totes filled with binders while working as a third grade teacher. The claim was bifurcated on the issues of work-relatedness and injury as defined by the Act. Puckett had had some minor back injuries prior to this, but was not treating at the time of injury. Records introduced confirmed this treatment in 2005 and 2010. These included an MRI revealing DDD and spondylosis at L1-2. Additional records showed treatment in 2013 and 2014 for mid and low back pain. Following the injury, Puckett saw several providers, some of which she reported the tote carrying to in her history. She continues to experience occasional back pain and wants to continue physical therapy. The first report of injury listed “transporting binders.” Immediately following the injury Puckett treated with Dr. Passo, who did not note the mechanism of the injury, and Hardin Memorial Hospital who noted “no known injury.” An MRI at Baptist Health Louisville in October demonstrated thoracolumbar degenerative disease. Eventually Puckett was treated by Nurse Mouser during 2017 who referred her to PT, and she was discharged in October 2017 after reporting she had no more pain. Dr. Matthew Price performed an IME. He diagnosed primarily muscle issues and not spinal issues. No spinal issues were related to a work-injury. He referred to back issues in the past, but could not rating could be assigned. Current complaints were not related to a work event, and the event did not exacerbate her pre-existing issues. There were no ratings for before or after the injury. The ALJ, in ruling against Puckett, noted he bore the risk of persuasion and that she had failed to meet her burden indicating the lack of any specific opinion evidence in her favor, as well as Dr. Price’s report.
Issues: Did the ALJ apply the wrong standard regarding medical causation?
Holding: No
Reasoning: The ALJ reviewed the treatment records and all prior treatment records, as well as Dr. Price’s report He found Dr. Price most persuasive that the current complaints were unrelated to the work-event which did not exacerbate any pre-existing issues. The ALJ explained why he did not find Dr. Passo persuasive. The WCB cannot re-weigh the evidence and substitute its opinion.
Disposition: Affirmed
ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Maria Grant v. Newgistics, et al; WCB No. 201592281; Alvey; Entered 8/30/2018
Procedural History: Grant appeals from an ALJ Opinion, Award, and Order that found she was employed by Corporate Resource Services at the time of her injury and that Newgistics did not bear any liability pursuant to KRS 342.610(2).
Facts: The WCB spends 13 pages going through the entire file in this case wherein the actual issue is very limited, and, the only issue that was addressed by the WCB in reaching its decision. Essentially, the ALJ entered an award against CRS, who was insolvent, and not against Newgistics Inc. Grant filed her notice of appeal and did not name CRS, who had not participated in the litigation before the ALJ, as a party. She merely listed as Respondents “Newgistics, et al.” She did send a notice of appeal to all of the parties.
Issues: Was CRS a necessary party to the appeal, even though it had not participated in the proceedings before the ALJ, and the issues on appeal did not directly affect it?
Holding: Yes
Reasoning: 803 KAR 25:010 sec. 2(3) (a) requires all persons shall be joined as defendants against whom the ultimate right to relief may exist, whether jointly, severally, or in the alternative in adjustments of claims. The regulation concerning a notice of appeal states that the notice must denote all parties against whom the appeal is taken as respondents. The WCB ruled that CRS is an indispensable party to the appeal and the failure to name as a party necessitates dismissal. The award is against CRS, and even though it did not participate below, it maintains an interest affected by the ALJ’s determination and the WCB. Even though its counsel may have been served with a notice of the appeal, this is not sufficient, nor is the use of the term “et al.”
Disposition: Opinion Dismissing and Order
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author, Date Entered: Hayatte Kleier v. Macy’s #562; WCB No. 201685226; Stivers; Entered 9/14/2018.
Procedural History: Kleier appeals from an award for a right thumb injury contending the ALJ erred by not awarding TTD benefits from May 29, 2016 thru September 26, 2016, the day before she underwent right thumb surgery.
Facts: Prior to working at Macy’s, Kleier worked at Baptist East Hospital in the cafeteria, and later was hired as a tutor and baby-sitter for two young brothers. When the two young brothers started school she obtained a part-time job at Macy’s as a beauty advisor. She did continue to tutor the two young men for $408.00 per week. Following her injury, she continued to work at Macy’s under restricted duty, while continuing to tutor. She continued at Macy’s until May 28, 2016, when she could no longer work, and then took a job with Ranstad for a short time. She still continued tutoring. As early as March, Dr. Blackburn allowed Kleier to work part-time with restrictions. She continued working. A FCE dated May 13, 2016 restricted her to light duty with a 20 lb. max, and frequent lifting or carrying of 10 lb. or less with both hands. Dr. Blackburn’s June office note showed improvement and she was released to medium work on June 10, 2016. She continued under medium duty, despite complaints of pain. Trigger finger release was performed on September 27, 2016.
Issues: Did the records support a finding that Kleier was entitled to additional TTD as requested prior to her surgery?
Holding: No
Reasoning: The records did not support this request. Further, Kleier was not specific in her petition for reconsideration and her appeal as to why she was entitled to TTD for that period of time.
Disposition: Affirmed
ALJ: Hon. John McCracken

Case Name, Citation, Author, Date Entered: Angela Sumrall v. Bluegrass Orthopaedics & Hand Care, PSC.; WCB No. 201402277; Rechter; Entered 9/7/2018.
Procedural History: Sumrall appeals from an Opinion and Order on Remand as well as two Orders on Reconsideration wherein she was awarded PPD, but without enhancement of benefits. In an award, the ALJ based the award on a 26% rating and concluded she did not retain the physical capacity to return to her pre-injury work, and enhanced the award by 3. Bluegrass appealed to the WCB, and the WCB vacated the award of PPD because the uncontroverted evidence established Sumrall returned to work at a wage greater than her pre-injury wage, thus qualifying her for the conditional use of the 2 enhancer. The ALJ had failed to recognize this and the case was remanded for an analysis pursuant to Fawbush v. Gwinn. After her analysis, the ALJ this time awarded Sumrall the 2 enhancer. The problem arises because in her opinion the ALJ stated: “This ALJ previously found Sumrall retains the physical capacity to perform her pre-injury work, as noted in the Opinion, Award and Order of October 20, 2015.” The statement was incorrect because, in fact, the ALJ had used the word “not” in describing her capacity. Sumrall argues the misstatement “tainted” the ALJ’s entire analysis of enhanced benefits. In her first Order on Reconsideration, the ALJ acknowledged the inaccuracy, and now enhanced benefits by the 3. In a second Order on Reconsideration, the ALJ reversed herself, stated the disputed sentence was a “typographical/clerical” error, and awarded no enhancers.
Facts: Sumrall was an operating room nurse who alleged cumulative trauma to her neck which ultimately required fusion surgery in November, 2014
Issues: Were the analyses contained in the two Orders on Reconsideration so vastly different in substance and result as to leave the WCB unconvinced that they are the product of a genuine exercise of discretion based solely on the evidence?
Holding: Yes
Reasoning: The WCB was generally unconvinced that meaningful review could be conducted after reading both of the orders on reconsideration. The Orders differed so vastly in substance and result so as to leave the WCB unconvinced they are the product of a genuine exercise of discretion based solely on the evidence. The claim is remanded to the ALJ. The ALJ has concluded that Sumrall does not retain the capacity to return to her pre-injury job. She has further determined she returned to work at a higher wage. Neither Party challenged these findings. As such, both the two and the three multiplier are applicable to this claim. On remand, the ALJ’s sole task is to determine which multiplier is most appropriate, taking into consideration Fawbush.
Disposition: Vacating and Remanding
ALJ: Hon. Stephanie Kinney

ase Name, Citation, Author, Date Entered: TLC Companies, as Insured by Zurich North America v. Leonel Casas, Lis Logistics, Uninsured Employers” Fund & Carriers Concepts; WCB No. 201400638; Rechter; Entered 9/14/2018.
Procedural History: TLC appeals from Interlocutory Orders and the Final Award wherein the ALJ determined that Casas was an employee of LIS Logistics at the time of the injury and was covered by Zurich for workers’ compensation benefits at the time of the injury, arguing the ALJ ignored an employee leasing agreement between TLC and LIS.
Facts: The facts are largely undisputed. Casas was a truck driver injured in a mva on 10/31/13 while working for LIS, a trucking company. LIS had previously contracted with TLC to provide leased employees, though Casas was not an employee leased by TLC to LIS. TLC secured a policy with Zurich to cover its employees it leased to LIS. Casas was paid by LIS. TLC is a professional employer organization (“PEO”) who serves as administrative employer for employees assigned by its clients. It performs payroll, etc. and provides WC insurance for assigned employees. LIS and TLC had a service agreement, which, inter alia, provided a clause specifically indicating that LIS may not hire, lease, or use any other employee in the categories for which TLC provides employees. If LIS fails to submit the individual to TLC for approval, that individual is an employee of LIS, and LIS must provide WC insurance for non-assigned employees. Casas was not on the list of assigned employees, and LIS did not submit his name for screening by TLC. On the Form 101, Zurich was listed as an insurer for TLC, providing “location coverage” for LIS. LIS did not participate in the litigation. The ALJ found Casas an employee of LIS, and concluded Casas was covered by Zurich through TLC. The ALJ noted that records maintained by DWC identify Zurich as LIS’ carrier, and TLC never challenged the validity of the records, and this was substantial evidence.
Issues: Did the ALJ err as a matter of law by concluding Zurich is estopped from denying coverage?
Holding: Yes
Reasoning: The DWC records alone do not constitute a sufficient basis for estoppel. Chapter 342 permits a PEO to supply all or part of an employer’s workforce. It does not obligate the PEO to provide insurance coverage for all of the employer’s workforce. Further, there was no showing of the requisite improper or misleading conduct on TLC or Zurich’s part. Also, the WCB rejected the UEF’s argument that any dispute between LIS and Zurich regarding coverage must be addressed in a circuit court. Whether insurance coverage extends to the named employer is a matter well within the ALJ’s jurisdiction. In short, the DWC records alone are not a sufficient basis to estop Zurich from denying coverage for Casas’ injury.On remand, the ALJ must address the responsibility of LIS and the UEF as to awarded benefits.
Disposition: Reversing in Part, and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author, Date Entered: Geoffrey Nall v. Fisher Auto Parts; WCB No. 201569362; Stivers; Entered 8/24/2018.
Procedural History: Nall appeals from the order overruling Nall’s Motion to Reopen asserting “newly discovered evidence.” The ALJ determined that “newly discovered evidence: was not applicable to Nall’s claim.
Facts: The ALJ analyzed the motion as one being made to resolve a MFD. Nall’s original claim asserted injuries on 8/19/2015, to his hip, tailbone, right hand, head/headaches. The ALJ awarded TTD and medical benefits, but not future medical benefits, and found temporary injuries only. An appeal on the issue of future medical benefits was later withdrawn. Nall filed his MTR citing the ground of “newly discovered evidence” asserting the employer will not agree to pay for medical treatment now recommended. He attached several medical records, and relied on the opinion of Dr. Amitava Gupta who had stated that Nall’s problems would resolve when he discontinued the use of the brace. Nall argues that since he did not improve makes this evidence “newly discovered.” The ALJ determined that because the ALJ did not award future medical benefits, Nall is unable to reopen his claim to assert entitlement to additional medical benefits.
Issues: Was the original ALJ decision regarding entitlement to future medical benefits now the law of the case, or res judicata?
Holding: Yes
Reasoning: This concept bars relitigation of the same issues by the same parties. While res judicata has limited effect in medical disputes because medical benefits relate to an employee’s evolving physical condition, the determination to terminate medical benefits when Nall reached MMI in his original claim is indeed res judicata in this claim. Also, “newly discovered evidence” is evidence in existence at the time but which could not have been be discovered. It does not include evidence that comes into existence after a matter has been decided.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Brandywine Farms, LLC v. Mary Davis; WCB No. 201366513; Recher; Entered 8/31/2018
Procedural History: Brandywine appeals from an award of TTD benefits, but a dismissal of PPD benefits, and an award of future medical benefits, or, in the alternative, the award is too vague.
Facts: Brandywine employed Davis to work at the Keeneland horse sales as a groomer for a period of 3 weeks. On 9/19/2013, she was kicked in the right side of her face, and she slammed into a wall, striking her head. She was initially treated at the UK Healthcare, however, shortly thereafter returned to Canada. She is a Florida resident who lives in Canada and only infrequently returns to Kentucky. This created a treatment problem. She was treated by Dr. Amy Hessler who recommended further neurologic evaluations, but these were not immediately performed. Peter Scheuring D.C., of Conestogo, Ontario stated Davis suffered mild traumatic brain injury with a concomitant whiplash injury, and recommended rehabilitative strategies. Dr. Arthur Hughes performed an IME and diagnosed right facial fractures, right facial soft tissue injury, status post-surgical repair of right facial fractures status post plastic surgery for right facial injuries, concussion, post-concussion syndrome, and others. He assigned 23%, and Davis was not at MMI, unless treatment was not approved for some of the injuries.  Dr. Joseph Zerga diagnosed significant trauma to facial structures including multiple fractures and a concussion. She was not at MMI, and he doubted there would be any restrictions. Dr. Guberman performed an IME and assigned a 19% rating: 8% for the right shoulder, 5% for disequilibrium, 5% for facial pain with headaches, and 3% for cognitive difficulties. He assigned restrictions and recommended a psychiatric evaluation. Dr. Timothy Kriss performed an IME and found no permanent work-related physical harmful change, and she needed no restrictions. The ALLJ found no impairment, medical expenses were limited to those incurred, and future medical benefits.
Issues: In this particular case, was the award of future medical expenses by the ALJ specific enough? Was the evidence explained enough? Was the reasoning detailed enough?
Holding: No
Reasoning: The award of future medical benefits appears to be based on the possibility that Davis may prove a need for such care in the future. The statements of the doctors seem to address only a possible need for medical treatment in the future. If an award of medicals is warranted the ALJ must specifically identify the conditions or body parts covered by the award.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author, Date Entered: Warrior Coal LLC v. Charles Martin; WCB No. 201701688; Stivers’ Entered 8/31/2018
Procedural History: Warrior appeals from an award of PPD (enhanced) and medical benefits asserting the ALJ erred awarding benefits for a left shoulder injury, and enhancing the benefits by 3.
Facts: Martin filed his claim for cumulative trauma to multiple body parts, all of which were withdrawn except for the shoulders and neck. Only the left shoulder was listed, but the parties tried the right shoulder by consent. Martin worked heavy labor in an underground coal mine, many days swinging a sledge hammer all day. Dr. Stephen Autry performed an IME. He assessed 25% to the whole body, of which 9% was related to the left shoulder.  He did not retain the physical capacity to return to the type of work he performed at the time of injury. Warrior Coal filed the IME of Dr. Rick Lyon. Any treatment for the left shoulder was not the result of work-related cumulative trauma. He was not assigned any work restrictions. He was able to continue working at his former job. The ALJ ruled that Martin did not sustain work-related cumulative trauma injuries to the cervical area and the right shoulder. Relying on Dr. Autry, and on Dr. Lyon, to the extent that he found certain conditions that could at least b partially responsible for the impingement syndrome and rotator cuff disease which he diagnosed. He then awarded 9%, enhanced by 3.4 for the left shoulder.
Issues: 1) Was there sufficient evidence to support the ALJ’s finding that Martin sustained an injury to the left shoulder of 9%? 2) Was the evidence sufficient to support the 3.4 enhancement?
Holding: 1) Yes 2) Yes
Reasoning: 1) There was more than sufficient medical testimony from Dr. Autry that supported the finding. He referenced the left shoulder injury as from “his many years in mining.” The ALJ as fact-finder can choose Dr. Autry over Dr. Lyon. 2) There was more than enough evidence between Dr. Autry and the Plaintiff’s own testimony.
As a side note, take notice that the WCB told the ALJ to apply the new revise version of KRS 342.730(4) which became effective July 14, 2018 and was applicable to this claim.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. Jeff Layson

Case Name, Citation, Author, Date Entered: Kentuckyone Health v. Lisa Gilbert; WCB No. 201569014; Stivers; Entered 8/24/2018.
Procedural History: KentuckyOne appeals from an order of TTD benefits from the date of injury, August 9, 2015, through July 1, 2017. PPD was not disputed. It argues TTD was due for September 2016 thru July 1, 2017.
Facts: Gilbert sustained a back injury on August 9, 2015. She later amended to claim other injuries. A few days after the injury she RTW, light duty, making labels, etc.  She returned to regular duty and then quit on 9/17/2015. She was working PRN (as needed), and got no benefits or WC for the time she was off, while others were hired full-time. She then worked for Xerox from December 2015, and from 1/16/thru 8/2016 for Genoa Healthcare. She underwent back surgery in December, 2016. The ALJ awarded TTD from 8/9/2015 thru 7/1/2017, based on Dr. Roth’s opinion that she reached MMI on 7/1/2017. KentuckyOne filed a petition for reconsideration, in relevant part to the award of TTD from the date of the injury thru August, 2016. The ALJ ruled on all matters in the petition, but inexplicably did not address the TTD. The reason to vacate the TTD was given by KentuckyOne that Gilbert was employed during this duration.
Issues: Did the ALJ fail to provide any findings of fact and conclusions of law to reasonably apprise the parties as well as the WCB of his rationale for the award of TTD benefits?
Holding: Yes
Reasoning: The analysis of the TTD entitlement is two sentences.
Any analysis of TTD must include a four-prong discussion which addresses:
1)  Is the employee at MMI;
2) Has the employee been released to “customary employment” as defined by Trane;
3) Has the employee actually returned to customary employment;
4) if so, do “extraordinary circumstances” warrant the payment of TTD benefits in addition to the payment of wages? Even though the request by KentuckyOne was limited, the analysis of TTD is so lacking that it warrants additional findings on any period of TTD awarded.
Disposition: Vacated and Remanded
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: James D. Howes v. Apollo Oil & Roscoe Lohr; No. 2017-CA-001116-WC; Maze; Rendered 8/24/2018; Not To Be Published
Procedural History: Howes petitioned for review of a WCB decision affirming an Order of the ALJ that denies Howe’s motion for costs.
Facts: This affirms a case we previously brought you. The relevant facts are brief. Howes represented Lohr in a WC case with a standard contract calling for a 20% fee as well as a cost provision that contained language that costs would be advanced by Howes but reimbursed by Lohr in the event of a settlement or award. The case was settled for a lump sum of $17,500.00. Before Howes could file his fee motion, Apollo’s carrier forwarded $14000.00 of the settlement to the Kentucky Child Support Enforcement Division as a result of a child support lien. Howes asked for an additional $1870.00 for litigation costs incurred, but the ALJ overruled the motion, reasoning her authority was limited to attorney fees and there was no jurisdiction to award costs. The WCB affirmed, stating there was no statutory authority to award costs, and, that an order requiring litigation costs to be reimbursed out of funds paid pursuant to a valid child support lien would violate KRS 342.180, which provides that any compensation awarded under the workers compensation act, other than child support, is exempt from the claims of creditors.
Issues: Does KRS 342.320 provide an ALJ with authority to reimburse an attorney for costs pursuing a worker’s compensation?
Holding: No.
Reasoning: This is not an issue that has any effect on the obligations that exist between Apollo Oil and Lohr. It is merely a post-judgment contractual dispute between an attorney and his client. The attorney has other methods to collect these moneys. To pay the moneys out of the proceeds out of a settlement agreement paid pursuant to a valid child support lien would act as a detriment of the children to whom the child support is intended to benefit.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin
COA Panel: Acree, Combs, and Maze

Case Name, Citation, Author, Date Entered: Gary Blackburn v. Ormsco, Inc.; No. 2017-CA-001227-WC; Acree; Rendered 8/24/2018; Not To Be Published.
Procedural History:  Blackburn appeals the WCB opinion of the WCB affirming in part, vacating in part, and remanding his claim to the ALJ for additional findings of fact and entry of an amended opinion. The COA reverses the WCB and remands for reinstatement of the ALJ’s opinion and order.
Facts: We brought you this before as a WCB opinion. You can disregard it. Blackburn injured his low back on 3/7/2014 in what was described as a burst-type compression fracture at L3. The following day surgery was performed by Dr. Jean-Maurice Page in the form of a reduction and internal fixation by kyphoplasty of the L3 burst compression fracture. Blackburn returned to work without restrictions, at a higher wage, and exacerbated his injury on 6/15/2015, and was terminated one month later. Blackburn submitted Dr. Arthur Hughes, who assessed a 13% under DRE III because the surgeon noted the 50% compression. He acknowledged that the operative note indicated the fracture had been reduced by almost 90%, post-surgery. Blackburn submitted Dr. Stephen Autry, and noted an L4 compression found by Dr. Tutt. He placed Blackburn in DRE III for both fractures secondary to direct trauma with greater than 25% vertebral height loss. He assessed 13%. Dr. Timothy Kriss performed an IME, and reviewed the CT scan taken at the time of injury and indicated that the fracture was at a 20% decrease in height. The surgery was successful in reducing the fracture. He noted the report of the 90% reduction. He assigned a 5%, placing him in lower level DRE II based on a 20% compression fracture. The ALJ found 13% as assessed by Drs. Autry and Hughes, based on the height after the injury. The WCB reversed, holding that the rating used was not valid as it was based on Blackburn’s condition prior to the surgery, and, thus prior to MMI which followed the surgery.
Issues: Did the WCB misinterpret the AMA Guides, misunderstand the evidence of record and therefore wrongfully conclude that the assessment of impairment relied upon by the ALJ did not constitute substantial evidence?
Holding: Yes
Reasoning: Determining the rating was invalid because assigned when Blackburn was not at MMI, immediately following the injury, was error. Here, the rating was to be assigned based on the presence of fractures and/or dislocations with or without clinical findings. If a fracture places an individual in a DRE category, no other verification is required. Here, all of the doctors reviewed the same evidence, and all of the doctors agreed the DRE was the correct method to use in assigning a rating.  They all simply had differing opinions as to the degree of fracture. This was a case of conflicting assessments offered by the doctors and the ALJ was free to choose which impairment rating to rely upon. The WCB effectively substituted its judgement for that of the ALJ which it is not allowed to do.
Disposition: Reversing and Remanding
ALJ: Hon. John B. Coleman
COA Panel: Acree, D. Lambert, and Thompson

Case Name, Citation, Author, Date Entered: Derrick Brown v. PSC Industries; No. 2017-CA-001054-WC; Dixon; Rendered 8/24/2018; Not To Be Published
Procedural History: Brown petitioned for a review of the WCB decision that vacated an ALJ award of PTD to Brown. The COA concluded that the WCB erred as a matter of law, and reversed the WCB, and remanded.
Facts: We brought you this one before as a WCB decision. You can toss that summary away as the COA does not agree with the WCB. The ALJ found Brown to be at PTD, relying on the IME report of Dr. Jules Barefoot, who assessed a 37% impairment, and said Brown could not RTW at his employment. In his report, he went on to say that Brown was at MMI “if no further treatment is available.” If the symptoms persisted, then Dr. Barefoot recommended ongoing treatment with Dr. Rodney Chou.  Brown did indeed see Dr. Chou some 3 months later. The WCB found that since Barefoot assessed a “conditional” rating, and Brown received more treatment, then necessarily the rating did not meet the definition of permanent under the Guides, and, as a matter of law, had to be vacated. If the ALJ did not find a MMI date prior to the rating, or should he identify one assessed per the Guides, but choose not to rely upon it, then the award was to be vacated and medical benefits only awarded.
Issues: Did the WCB err as a matter of law in vacating the award of the Plaintiff because of a “conditional” impairment rating?
Holding: Yes.
Reasoning: The date on which a party reaches MMI and the assessment of an impairment rating are medical questions to be answered by medical experts. The Guides do require a finding of MMI in order to assess a rating. In Tokica, Inc. (USA) v. Kelly, 281 S.W. 3rd 771 (Ky. 2009), the Court stated: “MMI refers to the time at which a worker’s condition stabilizes so that any impairment may reasonably be viewed as being permanent...the need for additional treatment does not preclude a finding that a worker is at MMI.” The COA was not persuaded the evidence of Brown’s office visit with Dr. Chou rendered Dr. Barefoot’s impairment rating invalid or not supported by substantial evidence.
Disposition: Reversing and Remanding
ALJ: Hon. Jeanie Owen Miller
COA Panel: Dixon, D. Lambert, and Smallwood

Case Name, Citation, Author, Date Entered: Christina Moore v. Uspiritus Inc.; No. 2017-CA-001409-WC; Thompson; Rendered 8/31/2018; Not To Be Published.
Procedural History: Moore appeals from a WCB opinion affirming an ALJ award of TTD, PPD (increased by 3), and medical benefits.
Facts: Moore fell down a flight of steps and fractured her left foot. She did not return to work. She was a youth care worker which required walking, standing, balancing, stooping, kneeling, crouching, and crawling. She testified she spends most of her day in a chair, and cannot work. She admitted that she did help one time at a bake sale fundraiser. Surveillance videos showed her at the bake sale, and also shopping at Walmart. Dr. Navin Kilambi treated the fracture, and then referred Moore to pain management for evaluation of Complex Regional Pain Syndrome (CRPS).  Dr. Michael Cassaro treated Moore for RSD, implanted a stimulator for pain, and then referred her to a pain management physician. Dr. Lawrence Peters diagnosed CRPS of the left leg, treated her, and assessed 45%, entirely to the work injury. He restricted her activities and found her unable to return to her employment. He prescribed a quad cane and a wheelchair. Dr. Keith Myrick conducted an IME, and agreed with Dr. Peters. Uspiritus filed Dr. Ron Fadel who diagnosed Moore with a calcaneal fracture resulting in a mild to moderate CRPS as a result of the injury. He noted the video, stated the subjective complaints were inconsistent with the objective findings, and assessed 4%. She could return to her former employment. Moore filed the vocational report of Robert Piper, who opined Moore is unable to perform full-time employment. Uspiritus filed the vocational report of Dr. Luca Conte who concluded Moore could perform sedentary and light work. Her restrictions are inconsistent with her abilities as demonstrated on the video. The ALJ found Moore’s disability was not PTD and her impairment was 4%, relying on Dr. Fadel. The ALJ further concluded that Moore’s “condition from the broken foot has appeared to the ALJ to develop into something much greater in her mind than it really is.” She also commented the videos were irreconcilable with Moore’s complaints. She was also persuaded by Dr. Conte.
Issues: 1) Did the ALJ correctly rely on Dr. Fadel’s opinion over the opinion of the treating Dr. Peters? Was she free to rely on Dr. Conte’s opinion over Dr. Piper? 2) Did the ALJ find a psychological component to Moore’s condition without any medical evidence when she commented that Moore’s condition had developed into “something much greater” in Moore’s mind?
Holding: 1) Yes 2) No
Reasoning: 1) The ALJ is not required to give more weight to the treating physician’s testimony than the IME physician. The ALJ acted within her authority in determining which evidence to believe. 2) The ALJ clarified that the comment was not in making a finding but was only an opinion given the disparity in the medical evidence and the surveillance video. In light of conflicting opinions, there was nothing unreasonable about the ALJ’s conclusion that Moore may have exaggerated her symptoms. Finally, the denial of PTD was not based solely on the videos. Moore’s behavior was used by the ALJ in her determination of which medical assessments were reliable.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams
COA Panel: Combs. Kramer, and Thompson

Case Name, Citation, Author: Amazon.com v. Jeanie Colvin; No. 2015-CA-001908-WC; Nickell; Rendered 2/2/2018; Not to be Published
Facts: This reopening is purely a substantial evidence case. The relevant facts are simple and brief. In 2013 ALJ Miller awarded Colvin an award for neck and shoulder injuries based on Dr. Bilkey’s 7%. She then filed a MTR some 18 months later alleging permanent total disability. In his opinion, ALJ Rudloff discussed in detail the medical evidence, and found that Colvin’s condition had worsened, entitled to an 11% WPI rating, and based primarily on the records of Drs. Bilkey and Mehta, found she was totally disabled. Dr. Mehta, the treating orthopedic, diagnosed Colvin with degenerative disc disease mild CTS, partial thickness rotator cuff tear, arthritis, and left upper extremity complex regional pain syndrome. She was permanently off work. Dr. Bilkey performed another IME, and found Colvin had acquired chronic pain affecting the neck and left upper extremity, as well as headaches. He now assigned 11%. Dr. Dubou, for the employer, diagnosed a transitory shoulder strain, and opined her condition had improved since the original award. Colvin testified about permanent pain, inability to work, etc. The ALJ relied upon Mehta, Bilkey, and Colvin’s own testimony.
Procedural History: Amazon appeals from the WCB opinion which affirmed the ALJ award of PTD on reopening.
Issues: Was the award of PTD supported by substantial evidence?
Holding: Yes
Reasoning: Colvin was found credible. The ALJ believed Mehta and Bilkey, and the increase from 7% to 11%. A worker’s testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured.
Disposition: Affirmed
ALJ: Hon. William Rudloff
COA Panel: Dixon, J. Lambert and Nickell

Case Name, Citation, Author, Date Entered: Michael Liggett v. Cooper Standard; WCB No. 201474570; Rechter; Entered 6/29/2018
Procedural History: Liggett appeals from the order dismissing his claims for alleged cumulative trauma injuries to his neck, left arm and left knee. He argues the ALJ failed to give proper effect to Cooper Standard’s untimely filing of its Form 111, and in failing to award income and medical benefits.
Facts: Liggett alleged injuries to his neck and left arm on 2/3/2014, and a cumulative trauma injury to his left knee manifesting on 7/18/2014. The key factual issue in this case is simply the fact that Cooper did not timely file its Form 111, and what is deemed to be admitted as a result.
Issues: When the employer failed to timely file its Form 111, were all of the allegations in the Form 101 admitted, including all medical evidence?
Holding: No
Reasoning: The effect of an untimely filed Form 111is that all allegations contained in Liggett’s Form 101 are deemed admitted. However, the claimant retains the burden to establish the extent and duration of the work-related injuries.  The result is analogous to a default judgment in a civil action which determines liability but damages may be awarded only after a hearing and findings of fact and conclusions of law. Here, the Claimant failed to show a harmful change as a result of work-related incidents. No physician assigned an impairment rating to the accident dates that were deemed admitted as a result of Cooper Standard’s untimely Form 111. No physician indicated that the alleged injuries of 2/3/2014 and/or 7/18/2014 require medical treatment or caused any particular symptoms. It should be further noted that the ALJ deemed the allegations in Liggett’s Form 101 admitted, but nonetheless determined the medical proof failed to establish a harmful change. The WCB indicated her analysis essentially assumed Cooper Standard lacked good cause for its untimely Form 111.
Disposition: Affirmed
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author, Date Entered: Nathaniel Edward Maysey v. Express Services, Inc.; WCB No. 201681368;  Alvey; Entered 6/29/2018.
Facts: This is a good case to review as it sets out in logical order and form a discussion on the “general duty” clause as found in KRS 338.031 (1) (a), and the four-prong test outlined in Lexington-Fayette Urban County Government v. Offutt. This is a safety violation case involving a temporary service provider, where the ALJ did not enhance the benefits for this 18 year old employee of the temporary service whose arm was amputated just above the elbow. Maysey, while working for Express, a temporary service provider was operating an impregnation machine which was not in compliance with 29 CFR 1910.21. (1) (1), KRS 228.031 (1), and 29 USC 654 (a) (1). Maysey alleged his injury was caused by failure to have appropriate point of operation guarding. He alleged his safety violation against Express. He alleges Express violated KRS 338.031 (1) when it failed to assign him to a workplace free from recognized hazards likely to cause death or serious physical injury. Maysey alleges Express failed to inspect magna Tech to confirm it was free from recognized hazards likely to cause death or serious injury, and that Express failed to contractually require Magna Tech to comply with OSHA safety rule and regulations, and to furnish a work environment free from recognized hazards likely to cause death or serious injuries to those working in its facilities. Subsequent to the hearing, the parties settled all issues except for the application of the safety violation statute pursuant to KRS 342.165 (1). Maysey reported to work and was not provided any information or warning regarding the operation of the centrifuge. He received training for one hour on the date of the injury for a machine he had not operated on his own. Maysey thought the rotations were completed when he stuck his arm into the machine, when it started and entangled his left arm into the cable and chain. There was no functioning indicator light, or accessible emergency stop. It was operated with the top open. Citations and penalties levied against Magna Tech were admitted into evidence including, inter alia, directing the employer to operate the centrifuge with the top open against manufacturer’s operating procedures and with the built in safety devices bypassed. Further, guards were not provided. Charles Morley was the KY OSHA inspector who had no knowledge of whether Express performed inspections of the plant, or took any precautions to insure its temporary employees assigned at Magna were provided a safe work environment. Supervisor Ferris confirmed there was no emergency stop, said the machine could be operated open or closed, and could not confirm whether the control panel with the functioning light was operable or not. He also did not know if Express performed onsite inspections of the plant or not. May Card, safety Operations Manager for Express testified about safety procedures at Express, and her onsite inspections. She did not know if the contract, which was not produced, required OSHA compliance by Magna, or whether it allowed inspection by Express, including machine operation. She testified that Express is a member of the American Staffing Firms, which publishes the Employee Safety Best Practices and Operating Information for Industrial Staffing Firms. Best Practices recommends that a temporary service company perform an on-site inspection of a facility prior to placing workers there. Card did not know if an on-site inspection was performed. She does not personally inspect the machines to which temporary workers are assigned. OSHA did not cite or levy penalties against Express. In the opinion, the ALJ acknowledged the evidence supported Maysey’s factual arguments as what Express failed to do, and acknowledged Maysey argued Express violated the “general duty statute” by intentionally failing to provide him with a workplace free from recognized habits. The ALJ ultimately determined enhancement was not appropriate since Express did not know of the safety hazards, approved them or directed or acquiesced to them pursuant to Jones v. Aerotek Staffing, 303 S. W. 3d 488 (Ky App. 2010).
Procedural History: Maysey appeals from an Opinion and order finding Express did not commit a safety violation pursuant to KRS 342.165 (1). Maysey argues the ALJ misconstrued and failed to properly apply the law to the facts in declining to enhance his benefits by 30%.
Issues: Did the ALJ err in failing to enhance benefits for a violation of the “general duty” clause set out in KRS 338.031 (1) (a) in this case when the Employer was a temporary service provider?
Holding: No
Reasoning: Although the four-prong test outlined in Lexington-Fayette Government v. Offutt may have been met to establish a violation of the “general duty” statute, Express did not intentionally violate the statute. The complication in the claim was the fact that Maysey was undisputedly employed by Express, the temporary staffing agency. In finding that Express did not intentionally violate KRS 338.031, the ALJ relied upon Jones v. Aerotek Staffing. There, the claimant was employed by Aerotek, a temporary employment agency. It was established that the supervisors of the company where the claimant was assigned were aware of safety malfunctions, however, the ALJ in that case, affirmed by the WCB, found that Aerotek was the employer, and the safety violation was committed by the company that contracted with Aerotek. An employee must show that the temporary agency had knowledge of, approved of, or acquiesced in the actions of its client.
The four-prong test of Lexington-Fayette Government to determine whether a violation of a general duty clause occurs when:
1. A condition or activity in the workplace presented a hazard to the employees;
2. The cited employer or employer’s industry recognized the hazard;
3. The hazard was likely to cause death or serious physical harm;
4. A feasible means existed to eliminate or materially reduce the habit.
In order for a violation of the general duty clause to warrant enhancement under KRS 342.165 (1), the employer must be found to have intentionally disregarded a safety hazard that even a lay person would obviously recognize as likely to cause death or serious physical harm.
Disposition: Affirmed
ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Susan Ulrich v. Revere Packing, LLC; WCB No. 201282759; Rechter; Entered 6/2/2018.
Procedural History: Ulrich appeals from an order resolving a MFD in favor of Revere, arguing the ALJ misinterpreted the original decision rendered by ALJ Weatherby as only awarding temporary medical benefits.
Facts: Ulrich filed her claim in 2013. ALJ Weatherby, in his award, concluded that Ulrich suffered a lumbar strain only and that she had a 0%. Ulrich filed a petition for reconsideration seeking clarification of whether she was awarded future medical expenses. ALJ Weatherby simply overruled her petition indicating that it failed to identify any patent error appearing on the face of the Opinion and Award. There was no appeal.Revere file a MFD to challenge the reasonableness/necessity and/or work-relatedness of proposed spinal surgery, as well as a challenge to all future medical care including current and ongoing prescriptions for Oxycodone, based on res judicata.ALJ Miller reviewed the original award, concluding Ulrich only sustained a lumbar strain, fully resolved by the time she reached MMI and caused no impairment rating. She also noted the request for a specific award of future medical treatment, which ALJ Weatherby denied. She thus concluded that no award of future medical benefits was made, and afforded res judicata effect to the determination that there was only a sprain, and no future medicals were awarded.
Issues: Was res judicata properly applied in this MFD when the original ALJ found only a lumbar sprain, and no specific mention of future medical benefits?
Holding: Yes
Reasoning: Ulric failed to prove any continuing treatment or disability for which permanent income or medical benefits must be paid. She may not re-litigate her entitlement to future medical benefits. Once an ALJ determines the extent of a claimant’s injuries and her entitlement to future medical benefits, subsequent tribunals are bound by this determination.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller

Case Name, Citation, Author, Date Entered: Ruey Shortridge v. Walters Automotive Group; WCB No. 201701097; Alvey; Entered 6/29/2018.
Procedural History: Shortridge appeals from an ALJ Opinion dismissing his claim for multiple cumulative trauma injuries allegedly manifesting on May 7, 2015. Shortridge argues the ALJ erroneously relied on Dr. David Muffly’s characterization of a medical article by stating that 36% of individuals in his age group have the same lumbar findings, and that the ALJ failed to hold Dr. Muffly to the same standard as Dr. Nadar.
Facts: Shortridge filed his Form 101 alleging injuries to multiple body parts including his back, neck, knees, shoulders and hands caused by cumulative and repetitive trauma he experienced while working for Walters, alleging 5/7/2015, his last day of work, as the injury date. Shortridge relied on the reports of Dr. Nadar.
Shortridge indicated his work at Walters involved heavy lifting, and turning, twisting, stooping, kneeling squatting, and climbing. He alleged problems with the neck, lower back, knees, and legs.
Jane Sykes, Service Manager, testified. The jobs weren’t that demanding, and she denied any complaints from Shortridge. In fact, he wanted to switch jobs to one requiring heavier lifting. Shortridge was terminated because of job performance, as the shop had not been cleaned the night before he was terminated.
The ALJ ruled that Dr. Muffly’s report was more credible because Dr. Nadar did not adequately explain his causation opinion and did not fully understand Shortridge’s job duties.
The ALJ then dismissed the claim. No petition for reconsideration was filed.
Issues: Did the ALJ correctly rely upon the opinion of Dr. Muffly over that of Dr. Nadar in this cumulative trauma claim?
Holding: Yes
Reasoning: Dr. Muffly listed all of Shortridge’s complaints, past surgical history,and past medical history in his report. He outlined the results of his examination, including x-rays. He found no cumulative trauma conditions attributable to Shortridge’s occupation. He did find an L4-5 herniation and several levels of DDD caused by age. He noted these conditions are present in 36% of people over the age of 50, and did not believe the condition was aggravated by his employment.
Although Shortridge contends that the ALJ relied upon an erroneous fact that is overwhelmingly contradicted by objective medical evidence, he did not raise the issue with a petition for reconsideration, and thereby waived his right to assert as error the reliance upon an alleged inaccurate statement by Dr. Muffly.
Disposition: Affirmed

Case Name, Citation, Author, Date Entered: Robert Thomas Cox (Deceased), Angela K. Cox (Admin) Widow, and Guardian of Minor Children v. Byrd’s Body Shop; WCB No. 201693465; Rechter; Entered 6/29/2018.
Procedural History: Angela Cox appeals from the Opinion and Award of the ALJ which concluded the MVA causing Robert’s fatal injuries during the course and scope of his employment with Byrd, arguing the benefits should not be limited by KRS 342.730(4). Byrd cross-appeals challenging the conclusion concerning the finding that the injury occurred during the course and scope of Cox’ employment. (The issues of interest rate and limitation of benefits under KRS 342.730 (4) will not be addressed).
Facts: Cox worked as an auto body repairman for Byrd, enjoying a personal relationship with the Byrds which exceeded the typical employer/employee relationship. Cox would visit during off hours, and Byrd testified Cox was “like a son.”
Cox was paid by the week, but would not be reduced due to lateness, etc. If Cox was asked to perform a personal task for Byrd at his home, Cox would not have his paycheck reduced.
On 12/14/2015, Byrd call Cox at the shop and asked if he could help removing a freezer from his basement. Cox eft work, went to Byrd’s house, and assisted with the freezer. He declined to stay for lunch, and indicated he was returning to the shop and would get lunch on the way. He was then killed when an approaching vehicle crossed the center line and struck him head-on.
Issues: Is an injury nonetheless work-related when an employee is undertaking a task at the direction of his employer which is unrelated to his regular employment?
Holding: Yes
Reasoning: General authority indicates such an injury is compensable. According to Lawson: “When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable.” This is grounded in two rationales. The employer has the authority to enlarge the scope of employment at any time, and even to include jobs or tasks outside the normal employment. Also, an employee should not be placed in the untenable position of either disregarding a directive of his superior or employer, or forfeiting his injury coverage by complying with the request.
This position is upheld in Kentucky in Nugent Sand Co. v. Hargersheimer, 71 S. W. 2d 647 (Ky. App. 1934), and a line of subsequent cases.
While Byrd also argued that Cox had left the Byrd’s home to get lunch, and therefore any personal errand for Byrd had ceased, the ALJ rejected this because Cox had not left his usual workplace to get lunch. He had been directed by Byrd and was still in the process of completing the task.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. John Coleman

Case Name, Citation, Author, Date Entered: Jimmy Gibson v. Appalachian Mining & Reclamation LLC; WCB No. 201601731; Stivers; Entered 6/29/2018.
Procedural History: Gibson appeals an Order dismissing his claim for CWP. The main issue to be discussed on appeal, and the one we will address here was the University Evaluator physician, Dr. Fred Rosenblum, and his use of the AMA Guides.
Facts: Gibson’s claim was for CWP, and alleges the breathing test performed by Dr. Rosenblum established he suffers from work-related COPD, and asserts an 8% permanent impairment rating due to the COPD.
In his report, Dr. Rosenblum stated: ”His whole person impairment is estimated at 8% based on the most recent AMA guidelines.” (Emphasis Mine)
Issues: When the impairment rating assigned by the University Evaluator stated it was based on the most recent edition of the Guides, and not the Fifth edition, could it be relied on and given presumptive weight?
Holding: No
Reasoning: The impairment rating was not in accordance with the statute, as it was not based on the Fifth edition of the Guides. He assessed it on the “most recent” edition, and the calculation of the impairment under the Fifth Edition and the Sixth Edition varied. The ALJ was thus prohibited from relying on the rating.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author, Date Entered: Excel Mining LLC/Alliance Coal v. Ronnie Booth (Deceased); WCB No. 201600205; Stivers; Entered 7/6/2018.
Procedural History: Excel appeals from the Orders of CALJ Gott asserting the CALJ erred in allowing a continuation of benefits to Booth’s Widow (Dottie). Excel argues the CALJ should have found Booth’s widow was not entitled to a continuation of the PTD benefits awarded Booth, and that Dottie’s benefits terminated when she attained age 60.
Facts: Ronnie Booth was awarded PTD by an award dated 11/7/2016. Booth died on 2/10/2018. Dottie had turned age 60 on 1/8/2018, one month before.
On 2/14/2018, Dottie filed a Request to Substitute Party and Continue Benefits to have Dottie continue receiving benefits under the statute. An order was entered allowing interested Parties 10 days to file a response, and allowing Dottie 10 days to file her marriage license and Ronnie’s death certificate.
On 2/27/2018 the Kentucky Coal Fund filed a response objecting to the substitution of Dottie and continuation of benefits to Dottie since she turned 60 on 1/8/2018, prior to Booth’s death.
On 3/16/2018 the CALJ entered an Order that a widow’s benefits are no longer subject to being terminated based on social security age and are subject to the tier down provisions.
Issues: Was the Order of the CALJ dated3/16/2018 a final and appealable order?
Holding: No
Reasoning: The order of 3/16/2018 did not meet any of the requirements to be a final and appealable order. Noticeably absent was an order sustaining Dottie’s request to be substituted as a party and joining her to the claim. Further, there was no award of benefits pursuant to KRS 342.730(3). If the CALJ intended to substitute Dottie as a party and to award a portion of Booth’s income benefits to her, the CALJ must order Dottie substituted as a party and enter an award. The CALJ’s award does not award benefits, terminate the action, nor act to determine all of the rights of Dottie and Excel.
Disposition: Dismissing Appeal and Remanding
ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Woodford County Board of Education v. Gary D. Coffey, Deceased, Dena Coffey, Widow, and Dena Coffey, Administrator; WCB No. 201177455; Alvey; Entered 6/29/2018.
Procedural History: Woodford appeals this opinion and order alleging that Dena is not entitled to any additional benefits because she is already age 60, arguing the Parker case only voided KRS 342.730(4) as it applied to Coffey’s benefits, and did not address the benefits to spouses and dependents. It argued the statutory restriction regarding termination of benefits to surviving spouses is still valid, thereby preventing Dena from recovering any additional benefits.
Facts: Coffey was awarded PPD based on a 43% rating. After applying factors and multipliers, he was awarded PPD benefits at the rate of$721.97 per week, terminating at the age he was eligible to apply for normal SS retirement benefits.
Coffey died on 4/13/2017 due to unrelated cardiac arrest. Dena was allowed to Substitute as a Party, and a show cause was entered as to why Dena would not be allowed to continue benefits. Woodford argued she was not entitled to benefits because she was already age 60 when Coffey died.
The CALJ granted Dena’s request for a continuation of benefits, and applying the tier-down provisions as of the date Coffey would have reached age 65.
Issues: Did the ALJ err in finding that Dena is entitled to a continuation of benefits awarded to her husband?
Holding: No
Reasoning: Under Morsey, Inc. v Frasier, the Kentucky Supreme Court, in interpreting KRS 342.730 (4) held a surviving spouse’s receipt of benefits based upon an award of benefits to a deceased spouse terminates at the age of 60.  This is the date he or she would qualify for benefits under the US Social Security Act. A logical extension of the holding in the Parker case is applicable to the continuation of benefits to a surviving spouse.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: William Decker v. Control Systems Inc.; WCB No. 201363932; Stivers; Entered 7/6/2018
Procedural History: Both Parties appeal from an ALJ Award of TTD, PPD, and medical benefits. The issue on appeal, and the one discussed here involves calculation of AWW. The other issue involving tier-down benefits will not be discussed.
Facts: Decker sustained a work-related injury on 10/10/2013 while in the employ of Control Systems. Wage records indicated that from 10/10/20121/10/2013 Decker earned a total of $6256.00 based on a rate of $18.50 per hour. This included the entire $3000.00 bonus Decker received on 12/7/2012.
From 1/11/2013 thru 4/11/2103 Decker earned $0. From 4/12/2013 thru 7/11/2013, Decker earned $0. From 7/12/2013 thru 10/10/2013 Decker earned $480.00 based on $20.00 per hour. On the Form 111, Control contended Decker’s AWW is $481.23.
Decker testified he received a Christmas bonus of $3000.00 in December, 2012.
In its AWW-1, Control referenced the bonus, and averaged it out over 52 weeks, or $57.69 per week. Adding 13 weeks at $57.69, or $749.97 to the quarter of the injury resulted in wages earned of $4005.97, which when divided by 13 weeks, results in an AWW of $308.15. Because the bonus was an amount fixed for a year, the ALJ believed it would be similar to wages fixed by the year and thus calculated by KRS 342.140 (1) (c).
Issues: Did the ALJ correctly calculate AWW when she divided a $3000.00 Christmas bonus by 52 weeks pursuant to KRS 342.140 (1) (c) instead of including the full amount of the bonus in the thirteen week period utilized in calculating his AWW?
Holding: Yes
Reasoning: The bonus was received every year, and varied depending on the amount of work done. It could be inferred from Decker’s testimony he bonus was based on the amount of work performed throughout the year and not just the amount of work performed in the quarter in which it was received.
The case was remanded for a recalculation of benefits at the correct TTD and PPD rate, $308.15, and not $308.51, which Control had incorrectly listed in its Form AWW-1.
Disposition: Affirmed in Part, Vacated in Part. & Remanded
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Raymond Bryant v. Jessamine Car Care; No. 2017-CA-000015; Taylor; Entered 4/27/2018; Not To Be Published
Procedural History: Both Parties appeal from the WCB opinion. Bryant argues the WCB improperly affirmed the ALJ terminating TTD and denying the three multiplier. Jessamine asserts the ALJ erred in 1) finding that an injury occurred on the date alleged, 2) holding that proper notice was given of the injury, and 3) failing to refer the claim to the Kentucky Department of Insurance for investigation.
Facts: We brought you this case previously as a WCB decision that spanned 51 pages.  The COA did this in13. Bryant alleged injuries to his left arm helping a co-worker remove a transmission. He testified he told his supervisor, Mike Johns, within 5 minutes. Johns claimed he was made aware of the incident, but not of an injury. 
Bryant originally treated with D. Madonna Hall, and, after diagnostic studies revealed DDD, Dr. Harry Lockstadt. Eventually, Dr. Lockstadt did a surgical arthrodesis to the right sacroiliac joint, and returned him to normal work duties, with occasional lifting to 50 pounds, and a 12%.
Issues: 1.) Did the ALJ err in terminating the TTD benefits after viewing a surveillance video, and in failing to award the “3”?
2.) Was there substantial evidence to support the claim of an injury occurring, as well as notice?
Did the ALJ err in failing to refer this matter to the Department of Insurance for fraud when there was evidence that Plaintiff was working, while claiming an inability to work?
Holding: 1.) No
2.) Yes
3.) No
Reasoning: 1.) In his 2 page brief, Bryant merely argued that the WCB “rubber stamped” the ALJ decision,  and failed to cite any evidence or law to support  his claim There was substantial evidence to support the ALJ.
2.) There was enough evidence for the ALJ, and he simply chose to believe Plaintiff’s evidence over the Defendant’s.
3.)  First, the ALJ has no affirmative duty to refer a claim to the Department of Insurance. Secondly, Bryant was not receiving any TTD benefits at the time he was videoed working at another garage. No statute or case law was cited lacing the ALJ to refer the case for investigation just because it was Bryant’s intent to receive TTD during this period.
Disposition: Affirmed
ALJ: Hon. John Coleman
COA Panel: Maze, Smallwood, and Taylor

Case Name, Citation, Author, Date Entered: Hayden Yancey v. Dugan & Meyers Construction Company; WCB No. 201578344; Stivers; Entered 5/18/2018
Procedural History: Yancey appeals this award of only 4%, and, for failure of the ALJ to enhance his PPD benefits pursuant to KRS 342.165 (safety violation).
Facts: Yancey sustained work-related injuries to his head on 6/30/2105 while cutting with a saw while employed by Dugan & Meyers.
Hayden alleges he was entitled to an enhancement of benefits due to the employer committing a safety violation which lead to his injury. The employer was cited for failing to maintain a safe work environment. The employer alleged that Yancey was specifically told not to attempt to cut the section of pipe by himself. Further, it appears that the employer had no reason to believe that Yancey did not have sufficient training to operate this piece of equipment, and in particular, the conclusions of OSHA with regards to the training lacked investigative notes, nor was there anything to suggest what the training should have been.
The ALJ found no violations, and awarded 4% based on Dr. Dubou’s opinion.
Issues: 1) Did the ALJ “misinterpret” the evidence when he found Yancey had a 4% impairment?
2) Did the fact that OSHA investigated, cited, and fined Dugan & Meyers dictate the imposition of the 30% safety penalty?
Holding: 1) No
2) No
Reasoning: 1) Dr. Dubou’s opinion and evidence is most relevant to this issue. In his first report dated 2/18/2016, Dr. Dubou assigned a 15% WPI. A supplemental report was filed on 10/17/2016 wherein Dubou opined that Yancey had “improved markedly”, and assigned him 4%. Dr. Dubou clearly and unequivocally stated in his supplemental report the reasons for the change in ratings. Although there were other ratings in the record, the ALJ has the discretion to choose which physician’s opinion to believe.
2) Application of KRS 342.165 (1) requires two elements. First, the record must contain evidence of the existence of a violation of a specific safety provision, whether state or federal. Second, evidence of “intent” to violate the specific safety provision must also be present. A violation is intentional when a potential hazard either is or should have been reasonably foreseeable yet ignored or willfully overlooked by an employer or an agent of an employer, in the normal course of business to achieve some end desired by the employer or its agent, and this foresight and desire results in the violation producing injury to an employee. It is not enough that an accident merely happens. The nature and violation must be egregious.
Even if the ALJ accepts the OSHA citations as evidence of a violation of either a specific safety statute or the “general duty” statute, the ALJ may still find the employer did not intend to violate the applicable safety regulation.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: American Woodmark v. Sylvia Dobbs; WCB No. 201683243; Rechter; Entered 6/29/2018.
Procedural History: Woodmark appeals from the Opinion, Order, and Award on Remand wherein Dobbs was awarded PTD. Woodmark contends the ALJ misconstrued the instructions of the WCB on remand and erred in consideration of the medical evidence, the extent of Dobbs” injury, and the presence of any pre-existing active disability.
Facts: Dobbs filed her Form 101 alleging injuries to her cervical spine, hand, waist, and legs, identifying 2 dates of injury for work-related falls: 10/5/2015 & 1/6/2016. Her second fall occurred when she was in the training room, and began to feel nauseous and “funny” in her stomach. After walking outside, she felt better, but then, after entering the “dry kiln” room, the feeling returned and she passed out.
The original ALJ opinion was reversed and remanded back to the ALJ by the WCB. He was ordered to find the first injury as “work-related”, and the second one, he was ordered to find whether the fall was due to idiopathic or personal reasons. If American fails to present evidence in support of a finding that Dobbs’ fall was due to a personal or idiopathic reason, then the ALJ must find the 1/6/2016 fall is work-related.
On remand, the ALJ determined both falls were work-related and that Dobbs was PTD.
Issues: Did the ALJ properly understand the scope of his review on remand?
Holding: No
Reasoning: With regard to the first injury, 10/5/2015, the ALJ was correct.
With regard to the second injury, 1/6/2016, the ALJ misconstrued the WCB’s prior opinion. The WCB was unconvinced the ALJ exercised the full scope of his discretion as a fact-finder. The WCB did not require a particular result, nor preclude the ALJ from considering any particular evidence, whether direct or circumstantial. Because the ALJ’s opinion on remand indicates his belief that the Board directed a finding of work-relatedness, the WCB remanded the claim again to consider the work-relatedness of the 1/6/2016 fall.
The burden remains on Dobbs to establish a work-related cause for her loss of consciousness.
The legal discussion concerning idiopathic falls is set out in great detail in this case, and is too lengthy to set out here. We recommend everyone read and review the case in toto.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Chris Davis

Case Name, Citation, Author, Date Entered: CTA Acoustics Inc. v. Barbara McDaniel; WCB No. 201669016; Stivers; Entered 5/18/2018.
Facts: McDaniel was struck by a fork lift on 9/6/2016 causing injuries to “body systems and multiple body systems”. She then amended to include low back and left shoulder injuries. There were no allegations of cumulative trauma in either the Form 101 or the Motion to Amend. She did not RTW after this September 6, 2016 injury.
McDaniel had sustained a low back injury 30 years prior, which she claims was made twice as severe by the accident. She now had radiculopathy which was not present at the time of the accident. Prior to this accident she was having back pain, but was working 12-hour shifts.
Dr. Steven Autry assigned a 7% rating due to the accident, and no prior active. She was at MMI. Dr. Autry, in his report, referenced a specific injury documented at work. He also noted a back injury of 30 years prior, and stated that the pain doubled with this accident.
The Defendant filed DR. Henry Tutt, who assigned 5% with no restrictions. Everything was pre-existing active. The ALJ did not find Tutt credible, neither in his opinion, nor his rating, nor his finding of MMI. This appears to be primarily due to the finding being inconsistent with McDaniels’ testimony that she had been working 12-hour shifts prior to the injury, but was unable to RTW following the accident.
Procedural History: CTA appeals from an award of TTD, PPD, and medical benefits, arguing: 1.) the ALJ erred in a finding of a cumulative trauma injury based on Dr. Steven Autry; 2.) the ALJ erred in not finding a pre-existing active impairment; 3.)  the ALJ erred in awarding TTD based on Dr. Autry’s opinions regarding MMI.
Issues: 1.) Did the ALJ properly find a cumulative trauma injury based on Dr. Autry’s report?
2.) Did the ALJ err in failing to apportion part of McDaniel’s impairment to a pre-existing active condition?
3.) Was the ALJ correct in relying on the MMI date as found by Dr. Autry?
Holding: 1.) Yes
2.) No
3.) Yes)
Reasoning: 1.) The WCB acknowledged the report was confusing because Autry attributed the injuries to cumulative trauma rather than the acute traumatic injury of 9/6/16. The report insinuates “recurrent stress loading to the disc, ligament, and facet anatomy”, and not an acute injury. However, in its entirety, the report clearly shows Autry was aware of an “accident” and “specific injury”, indicating he not only received an accurate history, but also understood the sequence of events. The report also clearly showed that Autry did not believe there was an active impairment, as he referred to “aggravation” of cervical spondylosis, and lumbar spondylosis with radiculopathy.
2.) The ALJ relied upon the opinion of Dr. Autry who unequivocally opined that McDaniel did not have a pre-existing impairment at the time of the work injury. His opinion was substantial evidence, and other opinions were simply conflicting medical testimony.
Importantly also, was the testimony of McDaniel that “she continued to work 12-hour shifts prior to the 2016 work injury but was rendered unable to return to work thereafter”.
3.) The ALJ simply relied on Autry’s report that McDaniel was not at MMI from the date he stopped working until 5/24/2017. Tutt’s report was different, finding MMI on the date of the exam, 11/17/16. Again, this was simply a finding when there was conflicting medical evidence.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

CAse Name, Citation, Author, Date Entered: Frances Dunbar v. Pennyroyal Hospice, Inc., Jennie Stuart Medical Center, et al, & Jennie Stuart Medical Center v. Frances Dunbar et al.; WCB No. 201364482 & 200568114; Rechter; Entered6/1/2018.
Facts: There are two work-related instances here. Dunbar injured her low back on 7/14/2005 while working for Pennyroyal Hospice, Inc. She filed her claim and received a settlement. She continued to receive treatment, and, on 10/10/2013, she injured her low back, left hip, and leg following a fall. At that time she was working for JSMC.
Following bifurcation, ALJ Polites rendered an interlocutory decision finding a low back surgery recommended by Dr. David McCord reasonable, necessary, and causally related to the 2013 work injury.
Dunbar testified when she fell in 2013, her injury was more severe and continuous pain was present, and prior thereto had experienced only intermittent flare-ups.
During the litigation of her 2005 claim, Dr. John Lach conducted an IME, assessing an 8%, with restrictions, and a caveat that surgery would probably be necessary someday, attributing it to the 2005 low back injury.
Dr. Paresh Sheth started seeing Dunbar in 2013, and saw her 2 days before the injury. Two days before the injury, she reported intensified low back pain and the inability to perform all of her job duties.
Dr. Robbe saw her 4 days after the 2013 work injury. He diagnosed a displaced fracture of the proximal femur and recommended conservative treatment. After reviewing Dr. Sheth, he thought Dunbar suffered a pre-existing active low back condition.
Dr. Lach saw her again after the 2013 injury and concluded there was an increase and change in her symptoms due to the 2013 injury after comparing MRIs. After a weight-bearing MRI, Lach diagnosed a herniated disc at L4-5 and assessed 11%, with 8% to the 2005 injury. The 3% was due to pain from the hip injury.
Dr. Thomas O’Brien performed an IME and opined there was no orthopedic injury for either event, and everything was simply degenerative changes.
Dr. McCord, the treating neurosurgeon, opined the lumbar injury was greatly exacerbated by the 2013 event. He assigned a 5% for the 2005 injury, and concluded the L4-5 and L5-S1 discs had slipped as a result of the 2013 accident, and also caused an L3-4 herniation.
The 2015 Interlocutory opinion held the 2013 accident caused a permanent exacerbation and aggravation of the pre-existing active condition caused by the 2005 accident. The ALJ also noted a significant and debilitating increase in symptoms after the 2013 incident.
After the Interlocutory Order, and surgery, proof was reopened. Dr. Robbe then assigned significant restrictions, all related to 2013. Dr. O’Brien continued to believe Dunbar’s conditions were degenerative in nature.
Dr. Warren Bilkey performed an IME diagnosing a lumbar strain and aggravation of lumbar DDD as a result of the 2013 accident. He assessed 33%, attributing 8% to the 2005 injury and 25% to 2013, plus an additional 3% for the hip for a total of 27% for 2013. He assigned significant restrictions which would limit her ability to return as a floor nurse.
The ALJ adopted ALJ Polites’ conclusion that the 2013 injury caused a permanent exacerbation of Dunbar’s pre-existing and active low back condition. Also adopted was Dr. Bilkey’s opinion concerning the rating calculation. The ALJ further concluded that Dr. O’Brien’s restrictions were more in line with Dr. McCord’s examination findings, and declined to enhance the award.
Procedural History: Dunbar appeals from an award that did not enhance her benefits by the three enhancer. JSMC appeals arguing the low back surgery was not compensable, and that portion of the interlocutory order should be vacated and reversed with instructions that all benefits are related to a 2005 accident.
Issues: 1) Did the ALJ err in refusing to enhance PPD benefits by the three multiplier?
2) Did the ALJ err by finding that Dunbar sustained permanent injury as a result of the 2013 accident, and by not finding that her current low back condition relates solely to the 2005 accident?
Holding: 1) No
2) No
Reasoning: 1) While she was not working full time prior to the 2013 accident, Dunbar was in fact working 24-36 hours per week. The ALJ correctly examined whether Dunbar had the physical capacity to perform the job in the same manner as she had performed it prior to the injury. Although work as a floor nurse could require lifting patients, Dunbar acknowledged she did not perform this duty prior to the 2013 accident. She acknowledged she received assistance with other duties prior to the 2013 accident. Dr. Sheth’s notes state that Dunbar was having difficulty performing job tasks just days before the 3023 accident. After the surgery, Dunbar commented to physicians that her condition improved compared to prior to the accident.
2) There was conflicting testimony, some of which supports JSMC, however, the question of which evidence to believe is within the province of the ALJ. Regardless of whether the surgery had been recognized as an eventuality, an employer is responsible if testimony establishes the work incident hastened the date on which the surgery would be required. The record contained substantial evidence that the work injury worsened Dunbar’s condition, hastening or causing the need for surgery.
Disposition: Affirmed
ALJ: Hon. Christina Hajjar

Case Name, Citation, Author, Date Entered: Judy Construction v. Shawn Smith; No. 2017-CA-001462; Taylor; Rendered 7/27/2018; Not To Be Published
Procedural History: Smith received an award of PTD. The ALJ refused to decrease his benefits due to an alleged safety violation which the ALJ found inapplicable because Smith did not intentionally fail to utilize a safety harness when he fell from the bridge. The WCB affirmed and determined that the ALJ acted within her discretion by denying to apply the safety violation penalty. Judy Construction now appeals.
Facts: We brought this case to you previously as a safety violation case. While it remains one, the issue now on appeal changes to whether the WCB overlooked or misconstrued controlling statutes or precedent, or committed an erroring assessing the evidence so flagrant as to cause gross injustice.
The COA reviewed the decision of the ALJ, who specifically found that Smith did not intentionally fail to wear the safety harness. He determined that in the hurry to go home, Smith inadvertently forgot to put back on the harness. The WCB concluded that the ALJ had the sole authority to determine the weight, credibility, and substance of the evidence, and inferences to be drawn.
Issues: Did the record compel a finding contrary to the ALJ’s opinion, and did the WCB err by failing to disturb the ALJ decision? 
Holding: No
Reasoning: The only evidence concerning the failure to use the safety harness was from Smith. The ALJ found his testimony credible and decided he did not intentionally fail to use the harness. The COA was simply unable to conclude the WCB erred by failing to disturb the ALJ decision.
Disposition: Affirmed
ALJ: Hon. Monica Rice-Smith
COA Panel: Maze, Taylor, and Thompson

Case Name, Citation, Author, Date Entered: Sebree Mining v. Robert Hodge; WCB No. 201700775 & 201700773; Rechter; Entered 7/13/2018.
Procedural History: Sebree appeals the award for a cumulative trauma injury to the neck, arguing there is insufficient evidence to establish a work-related injury.
Facts: Hodge filed a claim for cumulative trauma injuries to his back and left shoulder, which was dismissed, however the ALJ awarded income and medical benefits for a cumulative trauma injury to his neck. The back was not appealed, so only the neck injury was discussed.
In 2013 Hodge woke up with neck pain which worsened throughout the day. He was referred to Dr. Neil Troffkin, a neurosurgeon, who diagnosed degenerative changes in the neck, a C8 radiculopathy, and performed a C7-T1 laminoforaminotomy 0n 9/28/2013. There was complete resolution of arm and neck pain, but continued weakness and numbness in his left arm and hand.
Hodge testified that his pain came on suddenly and he did not know what caused it. He did not seek workers compensation for the 2013 surgery because he did not know what caused the pinched nerve.
Dr. Stephen Autry performed an IME, reviewed records and noted the physical demands of Hodge’s work and the 2013 surgery, and noting weakness, diagnosed a “profound radiculopathy” at C7-8.He cited work-related cumulative trauma as the cause and assigned 37% for “cervical spondylosis status post cervical laminectomy with neural loss at C7-8.”
Dr. Daniel Primm performed an IME, and referenced the 2013 morning with the sudden onset of pain, which resolved with surgery. He provided no specific reason for the cause of the cervical condition.
Dr. Chris Stephens evaluated Hodge on 9/8/2017, and noted the spontaneous neck pain on 2013. After exam and review of records, he found no indication of cumulative trauma injury to the cervical spine. He agreed with the 37%, however, attributed the entire condition to the residual effects of the neck surgery, which was not work-related.
In finding this a work-related injury, the ALJ noted Hodge’s testimony regarding the physical demands of his work, and relied on Dr. Autry’s 37%, and reiterated Dr. Autry’s general explanation as to how prolonged physical labor over a period of many years can cause micro-trauma to the cervical spine.
Issues: Did the ALJ explain fully enough her reliance upon Dr. Autry’s medical opinion?
Holding: No
Reasoning: Dr. Autry stated he received a history of “progressional” neck pain from Hodge, and denied that Hodge experienced a sudden onset of neck and left shoulder pain. Hodge, however, twice testified the pain came suddenly one morning and rapidly worsened. He provided a similar history to Dr. Stephens. Dr. Troffkin took a history of neck and left arm pain of one month duration prior to his initial valuation.
The history of the onset of the neck pain was of utmost importance in determining causation. Stephens and Autry disagreed as to the cause of the pain. The ALJ did not explain the fact the physicians relied upon vastly different histories.
For this reason it was necessary for the ALJ to reconcile her reliance upon Dr. Autry’s opinion and Hodge’s own testimony as to the onset of his neck pain, which comports with the history provided to Dr. Stephens. On remand, should the ALJ choose to rely upon Dr. Autry’s medical opinion, it will be necessary to more squarely determine whether his opinion is based on an accurate history of Hodge’s neck symptoms.
Disposition: Vacated and Remanded
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Sonoca Products v. Clyde Rhodes; WCB No. 200700514; Rechter; Entered 7/13/2018.
Procedural History: Sonoco appeals from an Order, and challenges the ALJ’s decision that Oxycodone and Gabapentin are reasonable and necessary for the cure or relief of Rhodes’ work-related injury.
Facts: Following a fusion at L4-5, Rhodes settled his claim based on a 19% impairment rating, paid in a lump sum, retaining future medicals.
Sonoca filed two MFDs, one contesting a spinal cord stimulator, which the ALJ determined was not medically necessary, and the other challenging prescriptions for Oxycodone and Gabapentin, which the ALJ found reasonable and necessary, and is the subject of the appeal.
Dr. Mahendra Sanapati is the treating physician. His tendered records showed Rhodes’ pain medications increased his ability to perform daily activities, despite chronic pain extending into the hip. Rhodes himself testified that the meds allow him to control the pain and function daily. When he tried to stop the meds, his pain increased significantly.
Drs. Vinson Disanto, Nakul Mahajan, and Rafid Kakel all opined that the meds were not reasonable and necessary.
The ALJ determined the meds were reasonable and necessary, relying on the testimony that the meds control thee pain, and pain increases when he stops taking them. She emphasized Dr. Sanapati’s records which document the relief Rhodes reports from the meds.
Issues: Were the testimony of the Claimant and the records of the treating physician enough for the ALJ to find the medications reasonable and necessary?
Holding: Yes
Reasoning: The records of the physician were more substantial than merely a prescription order. While the records do record Rhodes’ own pain complaints, and not objective findings, this fact simply goes to the weight to be afforded the evidence. The ALJ enjoys the discretion to assess the proof.
Importantly, we note that the case summary did not suggest there was any evidence or allegation concerning abuse of the medication.
Disposition: Affirmed
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author, Date Entered: Ulysses Roberts v. OHI Automotive of America; WCB No. 200797849; Rechter; Entered 7/20/2018.
Procedural History: Roberts appeals from an Opinion and Award in which the ALJ determined Roberts suffered a n increase in her PPD rating on reopening, and ruled in favor of OHI regarding contested medical treatment, arguing the ALJ erred in concluding she is not PTD, in finding recommended narcotic medication unreasonable, and in declining to enhance her income benefits by the 1.15 factor pursuant to KRS 342.730.
Facts: Following a low back injury in 2005, Roberts under-went an L5-S1 fusion surgery, and RTW without restrictions. A second injury occurred in 2007. She was treated and continued working, and ALJ Davis awarded Roberts PPD based upon a 20% impairment on August 29, 2008.
In 2009, Roberts experienced a worsening of her condition. In 2011 Dr. Tibbs performed a revision surgery of L5-S1, and extended the fusion to L4-L5. A MTR was filed on 8/28/2012, alleging a change in disability. OHI subsequently filed motions contesting some treatment, including some medications. An Interlocutory order of 6/19/2014 concluded some injections were not beneficial and ordered Roberts to undergo an inpatient weaning program to eliminate the need for opioid pain treatment. More motions followed, and the claim was placed in abeyance to allow completion of the weaning process. Eventually the claim was removed for a decision for a proper timeline to complete weaning of all medications, the compensability of injections and rhizotomies, and whether Roberts had experienced an increase in disability.
Roberts was terminated from work after reaching MMI following her 2011 surgery since OHI had no work within her restrictions.
Dr. Tibbs performed the second surgery. He assigned significant restrictions and did not feel she was capable of working, in part because of her high dose of opiate medication. 
Dr. Ellen Ballard provided pain management care, including the referral to a weaning program in Tennessee. She discontinued the weaning process due to Roberts’ uncontrolled pain and poor function. She then recommended continuing treatment with Percocet, Amitriptyline, Gabapentin, and Cymbalta, and later, a program of non-medical therapies, hoping to lead to a weaning from the opioids.
An FCE report resulted in a finding that she was only able to tolerate a 1.5 hour workday due to functional limitations affecting work tolerance and endurance.
OHI submitted Dr. Timothy Kriss, who had originally assigned the 20%. He now increased this to 23%. He recommended a weaning program and a new treatment plan that did not involve pain management.
Dr. James Owen performed an IME and assigned 29%, with restrictions, and she could not return to her former job.
The ALJ relied on Dr. Kriss to conclude an increase of 3%, with a 3 multiplier, but not PTD. A weaning program recommended by Kriss was ordered, with the injections rejected. The ALJ was clear that this was not a finding that no continued treatment was compensable, but this opinion only addressed that which was being specifically contested.
Issues: 1) Were the ALJ’s opinions that Roberts was not PTS arbitrary, ignoring, without explanation, the opinions of the treating physicians and the FCE, as well as stale and irrelevant since they was from 2012 and 2013?
2) Did the ALJ err in relying on Dr. Kriss’ opinion concerning treatment because it was outdated?
Holding: 1) No
2) No
Reasoning: 1) The WCB acknowledged Roberts compelling case of her ongoing battle with chronic pain and her physicians’ efforts to control it. However, it is not the function of the WCB to re-weigh the evidence. The ALJ carefully considered all of the evidence in her decision, and identified all of it. Her opinion was supported by Dr. Kriss’ opinion.
For clarity, however, the WCB remanded for a specific calculation of the award to include the statutory factor of 1.15, and a specific finding of the amount to be paid in the award.
2) The ALJ is not required to accept the most recent evidence, and to accept any testimony, and to believe it or not. Recency goes to the weight, not the admissibility of the evidence.
The ALJ did not foreclosed from future medical treatment and the decision concerns only the medical treatment currently contested.
Disposition: Affirmed and Remanded
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author, Date Entered: Doug Trevino v. Transit Authority of River City; No. 2017-CA-000753-WC; Nickell; Rendered 6/8/2018; Not To Be Published.
Facts: Trevino was a bus driver for TARC who claimed a passenger assaulted him causing injuries to his face and teeth, as well as PTSD.
The ALJ reviewed a video of the incident, and concluded Trevino intentionally instigated the assault, was the proximate cause of the assault, and was therefore ineligible for benefits by operation of KRS 342.610 (3).
The ALJ found the surveillance video more credible than Trevino’s recollection of the day’s events and his claim of self-defense. Trevin did not challenge the findings of fact, which, as a result conclusive and binding.
Procedural History: Trevino sought review of the WCB decision affirming the ALJ’s denial of income and medical benefits. Tevino does not challenge the ALJ’s findings of fact, only the interpretation of the special defense of “his or her willful intention to injure or kill himself, herself, or another.” TARC argues that Trevino was the aggressor and acted outside the scope of his employment as a bus driver.
Issues: Did the ALJ, and the WCB, correctly interpret and apply KRS 342.610 (3)?
Holding: Yes
Reasoning: To be compensable, the Act requires the injury arise in the course and scope of employment and not have been proximately caused by the employee’s own intentional deliberate action with reckless disregard of the consequences either to himself or to another. Had the General Assembly wished to leave a provision in the statute that would not ban an injury if the worker initiated the assault, it would have done so. Further, the ALJ rejected the notion that Trevino as acting to protect other riders on the bus because none of them appear threatened by the assailant’s behavior.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller
COA Panel: J. Lambert, Maze, and Nickell

Case Name, Citation, Author, Date Entered: Ronald Overstreet v. American Printing House for the Blind; WCB No. 201599349 & 201478055; Stivers; Entered July 20, 2018.
Procedural History: This is before the WCB from an Order on Remand, in which the CALJ ordered Overstreet’s PPD benefits are subject to the tier-down provision of the 1994 version of KRS 342.730 (4). This case had previously been to the Court of Appeals at which time the COA remanded the claim to the CALJ for an amended order and award consistent with the holding in Parker v. Webster County Coal, LLC (Dokiti Mine), 529 S.W. 3d 759 (Ky. 2017)
Facts: The relevant facts are simple and short. Overstreet’s original Form 101, filed April 26, 2016, listed two injury dates: June 3, 2014, and December 8, 2014. Overstreet was born on January 29, 1954, so he is now age 64.
In his April 10, 2018 Order, CALJ Gott stated that the duration of Overstreet’s benefits “shall not terminate at social security retirement age, but instead shall continue for the full 425 weeks, subject to the “tier-down” provisions of the most recent constitutional version of KRS 342.730 (4) from 1994.”
Issues: In light of the March 30, 2018, legislative amendment to KRS 342.730 (4) that went into effect on July 14, 2018, was the CALJ correct in applying the “tier-down” provisions of the ACT?
Holding: No
Reasoning: The WCB vacates the application  of the tier down provision as set forth in the 1994 version of KRS 342.730 (4) and remands the case to the CALJ for entry of an amended order and award consistent with the newly amended version of KRS 342.730 (4), which reads, in relevant part, as follows: “All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee reaches the age of seventy (70), or four (4) years after the employee’s injury or last exposure, whichever last occurs…”
Disposition: Vacating and Remanding
ALJ: Hon. Douglas W. Gott

Case Name, Citation, Author, Date Entered: Pike County Fiscal Court v. Terry Pinion; WCB No. 201666854; Stivers; Entered 6/1/2018
Facts: Pinion injured his back installing an axle on a truck. He was 58, a high school graduate, with only 2 jobs in his lifetime. He was a mechanic, as well as a certified welder for 35 years.
After his initial treatment he was referred to Dr.  Densler who recommended “3 discs fused together”. He continues to treat with Dr. Somasundaram every 3 months, and takes Cyclobenzaprine and Tramadol for pain.
Pike introduced the IME of Dr. Gregory Snider who assessed a 7%, with 25 pound restrictions, no repetitive bending or lifting, and position change as needed.
Pinion introduced Dr. David Muffly who assigned 7%. He could not return to previous occupations, and no lifting over 25 pounds and avoid bending, stooping, kneeling, climbing, and overhead reaching.
The ALJ relied on both doctors’ 7%, and their restrictions, and found Pinion could not return to either of his previous jobs. At age 59, there were no transferable skills to light duty work, and he could not find consistent employment in a competitive labor market.
Procedural History: Pike County appeals from an award of PTD. It also appeals from an award conserving the rate of interest and the application of the tier-down provisions which will not be discussed here as the rulings duplicate several Opinions already discussed.
Issues: Was the determination of PTD erroneous since there was evidence that Pinion may have been capable of returning to work performing a job requiring less physical exertion?
Holding: No
Reasoning: Pinion had only had 2 jobs in previous employment, both of which involved heavy manual labor. The ALJ did a thorough analysis under McNutt. Significant was his age, and the fact that there were no transferable skills permitting him to perform light duty work. Further, he would not be able to maintain consistent employment under normal employment conditions.
Disposition: Affirmed
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Czar Coal Corp. and Arrowood Indemnity Co. v. David Pack; WCB No. 199969939; Alvey; Entered 6/1/2018.
Facts: Pack sustained an injury in 1999, which he settled, reserving medicals. In 2014 Czar filed a MFD challenging Lyrica and Tramadol, as prescribed by Dr. Triplett, and was overruled, and the treatment was found to be reasonable and necessary.
Czar filed this MFD again challenging Lyrica, Tramadol, and now Celecoxib. In support thereof, Czar filed the reports of Dr. Terry Trout and Dr. Shahid Khan. Czar also filed Dr. Ronald Burgess, who attacked the original diagnosis, and stated that the treatment requested was not indicated.
Pack testified he had not worked since 2001 or 2002, he received SS Disability, and that he continued to have pain due to the work injuries. He had taken the medications in question for 13 or 14 years, and it reduced his burning, tingling, stiffness, pain and throbbing. 
Dr. Triplett’s notes supported his diagnosis and treatment, and the relief given to Pack.
The ALJ in his opinion noted the fact that Pack had done well with the medications, had shown no signs of abuse, and had not failed his medication contract. Plaintiff’s testimony was supportive, and he ruled the treatment reasonable and necessary.
Procedural History: Czar and Arrowood appeal from the Opinion and Order wherein the ALJ found compensable Pack’s treatment with Lyrica, Tramadol, and Celecoxib prescribed by Dr. John Triplett.
Issues: Did the evidence compel a different result in this MFD?
Holding: No
Reasoning: The ALJ determined the treatment reasonable and necessary, explained his reasons, and specifically noted the treating physicians’ records, and that the medications assist with relief from the effects of the work injury. This determination was consistent with the previous determination in 2014 in an identical MFD.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Commonwealth of Kentucky, Department of Parks v. Shannon Rucker; No. 2017-CA-001232-WC; Jones; Entered 6/15/2018; Not To Be Published.
Facts: As the COA noted, this is a legal question, so the recitation of the facts will be brief.
Rucker returned to employment after leaving Parks for wages greater to or equal to pre-injury. There were no restrictions or shown inability to perform her pre-injury job/duties. Since she had returned to greater than or equal to wages, the ALJ awarded the two multiplier for any period of cessation of that employment, but did not award the three.
Procedural History: Parks appeals from an opinion of the WCB which affirmed the ALJ’s decision that Rucker was entitled to the application of the statute applying the 2 multiplier.
Issues: Is the two multiplier, as set forth in KRS 342.730 (1) (c) 2, available to a claimant who retains the physical capacity to return to his or her pre-injury job/duties? The Legislature did not take steps to indicate one provision takes precedence over the other.
There is no requirement that the Claimant be found unable to perform his job/duties he performed at the time of the injury.
The statute is clear and unambiguous that an employee who returns to work “at an weekly wage greater to or equal than the average weekly wage at the time of injury” is entitled to have benefit for PPD multiplied by 2 times the amount otherwise payable “during any period of cessation of that employment, temporary or permanent, for any reason, with or without cause.”
Holding: Yes
Reasoning: Even though there may be situations where both sections may be applicable the two sections were not meant to be read in tandem.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin
COA Panel: Johnson, Jones, and Kramer

Case Name, Citation, Author, Date Entered: Charles Zelch v. United Parcel Services; WCB No. 201686069; Alvey; Entered 6/8/2018.
Facts: This is a notice case. The medical was not discussed in the WCB opinion.
Zelch alleged an injury to his neck on March 3, 2016, and claims he reported it to his supervisors on March 3 and March 4, while telling them about changes that should be made in his job. Neither supervisor recalled the conversation to include the work injury. It was reported again on April 25, 2016, some 53 days later, and this time he was referred for medical treatment. In the meantime, he had seen his physician, Dr. Helvey, twice, and there was no mention of a work incident in Dr. Helvey’s records.
The ALJ found the testimony of the supervisors more credible, and, noting Dr. Helvey’s records, dismissed the claim.
Procedural History: Zelch appeals from an Order dismissing his claim for failure to provide timely notice.
Issues: Was Zelch able to prove that due and timely notice of his injury was given?
Holding: No
Reasoning: The ALJ simply believed the supervisors more, and, also utilized Dr. Helvey’s office notes that Zelch had not given a specific reason for his ailments in his 2 office visits. There was a gap of 53 days between date of alleged injury and the date UPS claimed notice was given.
Disposition: Affirmed
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author, Date Entered: Northkey Community Care v. Lisa Smith; WCB No. 201701122; Alvey; Entered 6/22/2018.
Facts: Smith filed her 101 on June 27, 2017, alleging injuries to multiple body parts cause by repetitive motion, manifesting on December 9, 2015. She asserted that she provided immediate notice. She had also sustained a work-relate right hand injury when a patient bit her on March 7, 2015.
Smith worked full time with Kenton County as an emotionally behavior disorder teacher, and part-time for Northkey. Surgery was performed on 6/10/2015 for the hand injury which WC paid for. Smith began having trouble with elbow problems in October or November, 2015. Surgery was performed on the right elbow which the WC carrier denied. Smith continued with problems to the elbow after the surgery.
Dr. Frank Burke assessed a 16% impairment, with 4% to the right hand injury, and 12% to the cubital tunnel syndrome.
Smith filed the treatment records of Drs. Due, Rhode, and Koo for her hand and cubital tunnel injuries, with no ratings.
Northkey filed a record of Dr. Due which stated that the cubital tunnel was not work related, and that subjective complaints were out of line with objective findings.
Northkey filed Dr. Ellen Ballard, who found no evidence of cubital tunnel, and assessed 2% for the right hand injury, citing a normal EMG study. If she had cubital tunnel, it was not work-related.
On August 1, 2017, Northkey filed a Special Answer alleging Smith’s claim was barred by the statute of limitations. At no time prior to the BRC had Smith filed a claim for the 3/7/2015 injury, however, N0rthkey had addressed the injury in the medical evidence it filed.
The ALJ’s decision awarded TTD, PPD, and medicals for the 3/7/2015 hand injury, and dismissed the cubital tunnel claim. The statute of limitation defense was not valid, as the ALJ determined Northkey had not complied with KRS 342.040 (1) by notifying the DWC that it was not paying TTD benefits. He awarded 4% for the hand injury, and TTD benefits from June 10, 2015 through January 21, 2016.
Procedural History: Northkey appeals from an award of TTD, PPD, and medical benefits arguing that Smith was awarded benefits for an injury date which she did not allege in her application, that the tolling of the statute of limitations for the alleged March 7, 2015 injury should not have been tolled on the basis that TTD benefits were not paid when due, and, the award of TTD benefits was not supported by any medical evidence.
Issues: 1.) Was the 3/2/2015 injury properly before the ALJ for consideration?
2.) Was the statute of limitations applicable here?
3.) Was there medical evidence supporting the award of TTD?
Holding: 1.) Yes
2.) No
3.) No
Reasoning: 1.) The evidence submitted by both Smith and Northkey clearly discussed the original traumatic onset date as 3/7/2015. Northkey was aware of this date and injury because it had paid medicals, and the filing of the Special Answer. It cannot now allege it was prejudiced by the date listed on the Form 101.
The case was essentially “tried by consent.” This theory rests on the absence of actual prejudice, the ability to present a defense. This rests within the discretion of the judge.
2.) Northkey was estopped from asserting the statute of limitations defense because it violated KRS 342.040 (1) by denying TTD benefit, or in the alternative, by failing to notify the DWC of its refusal to do so. Northkey had evidence of the injury by virtue of paying the medical bills. This fact supported the ALJ’s determination that Northkey was required to institute the payment of TTD benefits, or to report to the Commissioner of its refusal to do so. The claim was not barred, as Northkey vigorously defended the claim.
3.) The evidence was clear that Smith continued to work after the date of injury until the June, 2015 surgery. She returned to work for one day in July. The date for termination of benefits is not clear. On remand, the ALJ must determine the exact time period to which Smith is entitled to an award of TTD benefits based upon the medical evidence.
Disposition: Affirmed in Part, Vacated in Part, Remanded
ALJ: Hon. Greg Harvey

Case Name, Citation, Author, Date Entered: Miranda Morris v. Naegle Outdoor Advertising, et al; WCB No. 199012160, 199004415, 198903216 &198717285; Rechter; Entered 6/22/2018.
Facts: In this current dispute, there was proof from over twelve dentists submitted, in addition to five lay witnesses. Most of this is not relevant to the issue on appeal.
Morris sustained head, neck, back, temporomandibular joint (TMJ) and psychological injuries as a result of 4 separate MVA while employed with Naegle. Only the 3rd and 4th are significant in that they are the 2 that deal with injuries to the mouth or jaw.
All four claims were consolidated, and the injuries, inter alia, included “TMJ”. Future medicals and RTR were preserved.
Morris underwent several surgeries for the TMJ both prior to and subsequent to the settlement, including a replacement. During this time of treatment, Morris also underwent dental procedures, including a full dental reconstruction. The record did not reflect who paid for this procedure. In 2010, a restoration of crowns and bridgework for twenty-two teeth was recommended.
In one of many MFD, Plaintiff requested to have 20 of her teeth recapped with porcelain/ceramic crowns and attaching bridgework. In a July 15, 2011 Order, ALJ Frasier ruled the Plaintiff had not met her burden,, and that while TMJ was listed as an injury, no mention had been made of dental injuries in previous pleadings. The dental restoration was non-compensable.
In December, 2011, the WCB affirmed the determination that the dental work and teeth cleaning are neither work-related, nor reasonable and necessary.
Morris subsequently sought full mouth restoration. Following another MFD, an agreement was reached for Naegle to pay for treatment with Dr. Sarah Johnson for removal of Morris’ crowns and rebuilding the cores with possible implants and root canals. Morris became unhappy with Johnson, and switched doctors. Naegle now challenged the treatment arguing the determination that care is not causally related to the original injuries is res judicata.
The ALJ eventually ruled against Morris, utilizing res judicata. A finding of reasonable and necessary is a snapshot in time, but a finding on relatedness is different. It is res judicata and not capable of being set aside.
Procedural History: Morris appeals from an Opinion and Order resolving a MFD regarding proposed dental treatment in favor of Naegle Advertising, arguing several issues, including improperly giving res judicata effect to an order in a prior MFD. Since the case was decided on the res judicata issue, only that issue was discussed.
Issues: Was the compensability of a full mouth restoration, which entails the recapping and crowning of twenty-seven teeth, decided in a prior MFD, so as to bar current relitigation?
Holding: Yes
Reasoning: Res judicata refers to a doctrine which may divest an adjudicator of authority to determine a claim or a portion thereof. It is not an issue that is required to be identified at the BRC.
Application of res judicata to MFDs is limited.  On issues of reasonableness and necessity, it has limited effect because medical benefits necessarily relate to an employee’s evolving medical condition. What is reasonable and necessary at one point may not be reasonable or necessary at another time.
The question of causation however does not evolve over time. Once an ALJ determines that work-related causation has not been established, subsequent tribunals are bound by this determination.
The only issue that remained was whether the current contested treatment is the same treatment declared non-compensable by ALJ Frasier. The original treatment was to recap and crown 27 teeth. The current treatment was to do all of the teeth-28. The settlement agreement did not reference or acknowledge a dental injury or the compensability of dental expenses. The agreements did not establish the work injuries produced a need for dental treatment. ALJ Frasier’s findings were the first on whether the dental expenses were related to the work injury, and thus res judicata.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author, Date Entered: Johnny Logsdon v. Xtreme Transportation; WCB No. 201485068; Rechter; Entered 6/8/2018.
Facts: The only relevant facts are those concerning employment and wages. Logsdon worked part-time for Xtreme, on an as needed basis. His full time employment was as a truck driver for Mercury Logistics. The supervisors at Mercury were aware of the work at Xtreme, but the testimony did not reveal the corollary. The ALJ found there was no evidence establishing that Xtreme was aware of Logsdon’s employment with Mercury, and therefore excluded Mercury’s wages from AWW.
As noted by Logsdon, Xtreme paid TTD at the rate of $578.89, a rate clearly not based solely on wages at Xtreme, which yielded an AWW of $54.96.
Procedural History: Logsdon appeals from the Award in which the ALJ excluded earnings from concurrent employment in the calculation of the AWW.
Issues: Were the wages of concurrent employment correctly omitted in calculating AWW?
Holding: Yes
Reasoning: The mere fact that TTD was paid at a higher rate than the minimum rate does not compel a finding that Xtreme was aware of Logsdon’s employment with Mercury prior to the injury. Electronic records at DWC showed payment at the minimum rate initially, and then subsequent payments at the increased rate. It was possible that the rate was changed in response to an attorney’s letter, but this would have only been based on information obtained after the injury.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: Ford Motor Company v. Bannon; WCB No. 201468234; Stivers; Entered 6/22/2108.
Facts: Bannon alleges low back injuries on August 9, 2013, and August 29, 2014. Following the first injury, and an MRI, Ford placed Bannon in an easier job. Following the second injury, Ford removed Bannon from work, and he underwent surgery on 11/3/2014 by Dr. Greg Nazar at L3-4 for a “lumbar disc herniation bilateral L3-4.” The surgery substantially relieved the leg pain and lessened the lower back pain, but numbness and tingling in the toes remained.
After more treatment, and an MRI, both Drs. Nazar and Werner recommended a second surgery, which he underwent on June 30, 2016. He was taken off work thru 10/31/2016. Bannon and his private insurance paid for the surgery, which he described as helpful. He testified he could not return to his former job.
Ford filed a medical fee dispute contesting the second surgery, relying on the report of Dr. Norman Ellingsen, who opined the medical necessity for the surgery was not supported by clinical documentation or evidence-based guidelines.
Ford relied on Dr. Thomas Loeb who assessed 17% for the two injuries. Bannon relied on Dr. Bilkey who assessed 27% due to the work injury of 8/9/2013. Both doctors provided work restrictions.
The ALJ, relying on Drs. Bilkey and Loeb found Bannon sustained work injuries on both dates, and accepted the 27% of Bilkey, stating that she relied on Bilkey’s ROM measurements more than Loeb’s, and enhanced by 3 because of inability to bend or lift heavy objects. The MFD was ruled in favor of the Plaintiff, the ALJ relying on the opinions of Drs. Werner, Nazar, Loeb, and Bilkey.
Procedural History: Ford sought review of the Award finding Bannon sustained a work-related lumbar injury and awarding TTD, PPD (enhanced by 3), and medical benefits. Ford argues about the use of Dr. Bilkey’s 27%, and the “3”, the second surgery performed by Drs. Nazar and Werner being found compensable, and the ALJ’s refusal to place claim in abeyance pending the date HB 2 becomes effective.
Issues: 1.) Did the ALJ commit error using Dr. Bilkey’s 27%?
2.) Did the evidence support the enhancement of the award by “3”?
3.) Did the ALJ err in finding the instrumental fusion compensable?
4.) Should the WCB abate all claims until HB 2 becomes effective and apply all provisions which are deemed retroactive including the cap on benefits set forth in the legislation?
Holding: 1.) No
2.) Yes
3.) No
4.) No
Reasoning: 1.) Notably, Ford did not assert that Bilkey’s report is not in accordance with the Guides. Any deficiencies or changes in Bilkey’s report merely go to the weight to be afforded his opinions and not to the admissibility. The proper method of questioning methodology is thru cross-examination or the opinion of another expert. 
2.) The ALJ cited the restrictions of Drs. Loeb and Bilkey, notably 20 pounds frequently and 20 to 30 occasionally. This, in addition to Bannon’s testimony about problems and limitations he experienced with increased activity were substantial evidence.
3.) The MRI demonstrated additional anatomical problems leading Drs. Werner and Nazar to conclude a second surgery was necessary. Further, Dr. Loeb concluded there was instability which required stabilization with fusion.
4.) Because the law was not in effect at the time of the injury and the ALJ’s award, and would not be in effect at the time of the rendition of this opinion, the WCB declined to entertain the argument.
Disposition: Affirmed
ALJ: Hon.  Stephanie Kinney

Case Name, Citation, Author, Date Entered: AIG, as Medical Payment Obligor for Unicorn Mining v. Charles Marcum; WCB No. 199800640 & 199609253; Alvey; Entered 6/1/2018.
Facts: This appeal falls into the category of “Why”.
Marcum was previously awarded PTD in 1998. This MTR challenged Marcum’s treatment with liquid Hydrocodone and Lyrica prescribed by Dr. Karelis
AIG filed Dr. Fadul who stated the need for liquid medication was not related to the work injury, but due to the fact that Marcum had developed unrelated laryngeal cancer. He stated that swallowing pills is a common problem for such cancer, and that the pills could be crushed and added to liquid or food.
Marcum responded by stating that he could not get enough nutrition from eating and has to rely on a feeding tube for more than 90% of his food intake. Swallowing pills is very difficult.
The ALJ found that AIG had not met its burden of proof to show that Marcum could take crushed pills in a crushed form and dismissed the Motion.
Procedural History: AIG appeals from the Opinion and Order in the ALJ found compensable Marcum’s treatment with liquid Hydrocodone and Lyrica prescribed by Dr. Thomas Karelis.
Issues: Did AIG meet its burden of proof to show that Marcum could take his pills in a crushed form?
Holding: No.
Reasoning: The compensability of the treatment was not at issue. The issue here is the delivery method. The method of treatment here is reasonable and necessary.   The ALJ fully explained his decision. He acknowledged the laryngeal cancer was unrelated to the work injury. Despite the condition, AIG was required to pay for the cure and effects of the work-related injury.    
Disposition: Affirmed
ALJ: Hon. John H. McCracken

Case Name, Citation, Author, Date Entered: Michael Stamper v. Okonite Company Inc.; WCB No. 201670366; Stivers; Entered 5/11/2018.
Facts: Stamper sustained a head injury working as a craftsman’s helper, the same position he now holds earning an increased hourly wage, and performing “exactly the same” work as prior to the fall. At the hearing he did testify however he is no longer cleaning an evaporator tank as he cannot twist around and clean the machine.
Stamper fell into a concrete pit where others were working, striking his head, when the restraint on one side of the pit had been removed and replaced with yellow tape. There were no railings because it was necessary that they be removed during the installation of equipment in the pit. The machinery could not be installed with the railings up.
Okonite was cited and fined by KOSHA. On appeal the fine was reduced. Okonite did not feel the citation and fine were justified because the machinery could not have been installed with barriers around the pit. Further, Okonite had not taken down the barrier on one side of the pit and stretch caution tape across that side. Okonite was not in control of the building.
The ALJ found that Okonite’s employees had not removed the railing and put up the yellow tape, and, regardless of who removed the railing, it was necessary in order to install the machinery. Further, other contractors primarily had control of the area. Importantly, regardless of who was in control, the installation of another rail was not feasible due to the difficulty in installing the new machinery. He further found that even though he was not performing all of the same duties in the same way as previously, because he is earning the same or greater wages that he retained the capacity to return to the job he had at the time of injury.
Procedural History: Stamper appeals an award for a work-related head injury on 8/24/2016 as a result of a fall. He argues the ALJ erred in not enhancing his PPD benefits by either the 2 or the 3 multiplier, and, in failing to enhance his benefits for a violation of KRS 342.165, for a safety violation.
Issues: 1.) Even though Stamper was still working for Okonite, but not performing every facet of his prior job, did the ALJ err in not applying either the 2 or the 3 multiplier to Stamper’s award?
2.) Did the ALJ err in not finding Okonite violated KRS 338.031 (1) (a) which requires an  employer to furnish each of its employees a place of employment which is free from recognized hazards which are causing or likely to cause serious physical injury or death?
Holding: 1.) Yes.
2.) No
Reasoning: 1.) Clearly the 2 multiplier was applicable as Stamper returned to work earning the same or greater wages. The WCB could not understand whether the ALJ found Stamper could not perform all of the same duties he was performing at the time of the injury, and thus remanded for further findings. If the ALJ concludes Stamper is not capable of performing all of those duties, he is entitled to the 3. If both multipliers are applicable, then he must perform an analysis under Fawbush.
2.) The ALJ’s findings were consistent with the evidence of record, and that testimony was substantial evidence. After examining all of the evidence, the ALJ was not convinced Okonite violated a safety violation. The WCB referenced and cited the case of Groce v. VanMeter Contracting, Inc, 539 S. W. 3d 677 (Ky 2018) wherein the SCT noted the disclaimer of an admission, thus precluding the use of an admission as a conclusive judicial admission to the alleged violation.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: City of Henderson v. Randall Jenkins; No. 2018-CA-000373-WC; Combs; Rendered 6/8/2018; Not To Be Published
Facts: We discussed this previously as a WCB decision.
The facts are limited, with only one issue. Jenkins sustained an abdominal injury while working as a firefighter for Henderson. At the time of the injury he was working two jobs. In addition to the firefighter job he worked as an EMT for Henderson Emergency Ambulance Service (HEAS). After the injury he could not return to work for HEAS due to the lifting involved. He did return to work for Henderson where his job involved both EMS and fires. While required to do EMT work for Henderson, he did so only in a supervisory capacity. He “cheated” if required to lift for Henderson, or others did it.
The ALJ awarded an 8.5% PPD but declined to award the three multiplier. The ALJ found Jenkins could return to his work as a firefighter, but not as an EMT. The ALJ cited Lowe’s No. 0507 v. Greathouse, 182 S.W. 3d 524 (Ky. 2006) which holds that an inability to return to a concurrent job does not entitle the claimant to the three-multiplier where he retains the physical capacity to return to the job in which the injury occurred. The ALJ noted that Jenkins had returned to work as a firefighter.
The WCB, in vacating and remanding, agreed with Jenkins that the ALJ did not adequately address Jenkins’ ability to perform the entire job he was performing for the City. The WCB remanded to the ALJ with instructions to determine whether Jenkins retains the physical capacity to return to the type of work he performed as an EMT FOR THE CITY at the time of the injury.
Procedural History: City of Henderson appeals from a decision of the WCB which vacated the decision of the ALJ that the three-multiplier is not applicable and remanding for further determination.
Issues: Did the ALJ misunderstand Jenkins’ argument and that Jenkins’ work for the City did indeed include EMT duties?
Holding: Yes
Reasoning: The ALJ misunderstood Jenkins’ duties, which included EMT, and the ALJ failed to fully address in determining whether the application of the three-multiplier was appropriate.
Disposition: Affirmed
ALJ: Hon. Roland Case
COA Panel: Combs, Dixon, and Maze

Case Name, Citation, Author, Date Entered: Austin Powder Company v. Billy Keith Stacy; WCB No. 201201514, 201201510; Rechter; Entered 6/1/2018.
Facts: You may recognize the style of this case, since it has previously been reported previously as a WCB, COA, or a SCT decision.
Stacy alleged cumulative trauma injuries to the low back, wrists, and hands, as well as hearing loss. In the original opinion, ALJ Borders used a 16% impairment rating, utilizing Dr. Hughes’ 5% for the low back pain, 6% for reduced range of motion in the wrists, and 6% for reduced grip strength. He then found PTD.
The WCB vacated that portion of the award for reduced grip strength, finding it was not permitted under the Guides, and, vacated the 5% for the low back.
The COA affirmed the WCB. Austin then appealed to the SCT, challenging only the COA’s findings with respect to the bilateral wrist injuries. The SCT agreed with the argument concerning the rating for loss of grip strength was invalid, and rejecting Austin’s other arguments. The SCT combined its mandate with that of the COA, and directed the ALJ to: (1) determine whether Stacy suffered a lumbar spine injury entitling him to medical benefits; (2) determine whether any entitlement to lumbar spine medicals is temporary or permanent; (3) determine the extent and duration of Stacy’s wrist related disability.
On remand, the ALJ found that Stacy was entitled to permanent medical benefits for the low back injury. He then concluded Stacy suffered a 6% WPI for the wrist injuries, again relying on Dr. Hughes. He then found PTD, based on the significant restrictions and limitations placed on Stacy for the wrists, which included working two hours per day for this 65 year old man with a high school education who worked 41 years as a heavy equipment operator. Some of the restrictions relied on were for the lumbar spine.
Procedural History: This is an Order on remand following an appeal to the Supreme Court. Austin Powder appeals a decision finding Stacy PTD, arguing the decision is not based upon substantial evidence and the impairment ratings supporting the award of PTD benefits are invalid.
Issues: 1.) Was the opinion of Dr. Hughes substantial evidence upon which the ALJ could rely?
2.) Was it necessary for the inability to labor finding to result solely from the wrist injury because that is the only injury for which an impairment rating was addressed?
Holding: 1.) Yes
2.) No
Reasoning: 1.) Austin had argued that Dr. Hughes had relied on another doctor’s diagnosis which had been relayed to him by Stacy, and that the ROM evaluation was not in conformity with the Guides.
The WCB expressly stated that it found troublesome that Austin would raise the exact challenges to Dr. Hughes’ opinion and impairment rating which it raised before the SCT, and which were expressly rejected. The SCT noted that although Hughes did not perform passive ROM measurements, active motion testing takes precedence in the AMA Guides. The percentage assigned was proper based on the measurements obtained. Further dissing Austin Powder, the WCB noted that Austin was “well aware” the SCT determined Hughes’ impairment rating based on loss of range of motion constitutes substantial evidence.
2.) The ALJ relied upon the fact Stacy could not work a five-day work week, or even part-time, due to the condition of his hands and wrist. There is no authority for Austin’s position that the ALJ cannot consider restrictions related to the lumbar injury for which no valid impairment rating was introduced. There was a finding of permanent injury to the low back since there was a finding of entitlement to permanent medical benefits. The ALJ is permitted to consider all impairment and restrictions resulting from the work-related injuries in determining occupational disability.
Lastly, the WCB overruled Austin’s request to apply Parker v. Webster County Coal because it may be further appealed. The WCB is without discretion to suspend its application because it may be appealed.
Disposition: Affirmed
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author: AGI Transportation, Inc.  v. Orlando Adkins; WCB No. 201401880; Alvey; Entered 5/11/2018.
Facts: On remand, the ALJ was directed to perform the appropriate analysis regarding whether Adkins was entitled to TTD benefits from 1/24/2014 through 6/2/2014. Adkins worked at a different job for lower earnings during that period.
In this job, Adkins, a truck driver who had previously drove a truck, plus loaded and unloaded, involved only cleaning tractors and moving them around the yard. Adkins earned significantly less, creating extraordinary circumstances qualifying him for an award of TTD. The ALJ noted that Adkins received voluntary income benefits during this time to bridge the difference between his actual earnings and the TTD he was qualified to receive. The ALJ did grant AGI a credit for any voluntary income benefits paid.
Procedural History: AGI appeals from an Order on Remand in which ALJ Coleman awarded TTD, PPD and medical benefits for a right shoulder injury. The sole issue is whether the ALJ erred in awarding TTD benefits from 1/24/2014 through June 2, 2014.
Issues: 1.) Did the ALJ perform the appropriate analysis on remand in accordance with the directions from the WCB, and was the decision supported by substantial evidence?
2.) Was AGI entitled to a credit against its workers compensation liability for wages paid during this period of time?
Holding: 1.) Yes
2.) No
Reasoning: 1.) The ALJ performed his analysis correctly and explained the basis for his determination.
2.) There are only 2 circumstances in which an employer can receive a credit against its TTD obligation: Unemployment benefits, or payments made under a employer funded disability or sickness and accident plan. There was no evidence that the wages Adkins received were intended to replace his TTD benefits. There was also no evidence which established that Adkins did not receive “bona fide” wages for work performed.
The employer is entitled to a credit only for voluntary benefits paid.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author, Date Entered: Marty Miniard v. Nally & Hamilton; WCB No. 201602196 & 201601842; Rechter; Entered 5/25/2018.
Facts: Miniard worked as a heavy equipment operator for Nally & Hamilton since 1978. He alleged the equipment produced heavy jarring which resulted in a cumulative trauma injury to his low back.
Only IME reports were submitted. Dr. Daniel Primm found no indication of lumbar degenerative changes in excess of normal age-related degeneration. There was no work-relatedness.
Dr. David Muffley diagnosed multi-level advanced lumbar degenerative disc disease at L1-2, and L5-S1, and assigned 5% related to work.
Dr. Russell Travis found no objective evidence of lumbar spine pathology, no cumulative trauma, and no rating.
The ALJ relied on Travis and Primm, and because there had been no complaints of back pain prior to seeing Muffley. Also, Miniard lack credibility.
Procedural History: Miniard appeals from an award for a hearing loss, but dismissing his claim for a low back injury. Only the low back injury will be discussed.
Issues: Were the findings of the ALJ reasonable under the circumstances?
Holding: Yes.
Reasoning: The medical opinions of Primm and Travis constitute substantial evidence. Miniard simply wants the WCB to re-weigh the evidence.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author, Date Entered: Mary Harris & Johnnie Turner v. Harlan City School Assoc.; WCB No. 201595827; Alvey; Entered 5/18/2018.
Facts: Harris sustained injuries to her low back, SI joint, legs, ankles, and feet when she fell down bleachers on 1/15/2015. She had previously undergone a back surgery by Dr. William Brooks on 5/7/2014.
After the surgery, her problems had resolved save for stiffness, and Lortab for pain. After initial treatment she was referred back to Dr. Brooks who ordered injections which were unsuccessful. She now complains of daily pain, and her activities are limited.
Dr. Brooks’ records show radiating pain after the fall. He diagnosed a musculo-ligamentous injury to the lumbar spine and left ankle. Surgery was not indicated. Office notes prior to the fall show some radiating right hip and right hip pain.
Dr. Tutt evaluated at Harlan’s request. He determined no gluteal tendonitis of either hip, and, complaints correlate with longstanding lumbar changes. All problems were active and pre-existing the injury. There was no evidence of a permanent injury from the work and her 10-13% was al due to pre-existing active.
Dr. David Muffly evaluated Harris. He found chronic right sacroiliac pain and assigned 16%: 13% lumbar DRE III, and 3% right sacroiliac joint. 10% was prior active, and 6% due to the injury. 
Dr. Travis performed a records review, including both of the MRIs. She sustained no additional injury, and had a 10% pre-existing active rating.
The ALJ dismissed the claim, relying on the opinions of Drs. Tutt and Travis. There was no structural alteration of the human organism, and the pre-existing active conditions were not affected by the work incident.
Procedural History: Harris appeals from an Order dismissing her claim for low back, SI joint, legs, ankles, and feet injuries she sustained when she fell down multiple rows of bleachers after she was pushed on January 15, 2015 during a school assembly.
Issues: 1.) Did the ALJ err in relying on the opinions of Dr. Russell Travis who only performed a records review? 
2.) Did the ALJ commit error when he failed to rule on TTD and medical benefits when dismissing the claim for permanent injury, and, when he failed to rule on the Employer’s motion to amend its stipulation concerning dates TTD was paid?
Holding: 1.) No
2.) Yes
Reasoning: 1.) It was undisputed Harris had unrelated lumbar surgery for which she continued to have symptoms. It was the ALJ’s prerogative to rely on the opinions of Drs. Tutt and Travis. Harris merely points to conflicting evidence with a more favorable outcome. His argument merely goes to the weight of the evidence.
2.) Under Robertson v. United Parcel Service, 64 S. W. 3d284 (Ky 2001), the ALJ failed to make an additional determination as to whether Harris was entitled to additional TTD payments, as well as medical treatment, both temporary and permanent.
Lastly, Harlan had filed a motion to amend its stipulation concerning dates TTD was paid, so the ALJ relied on and found incorrect information. The ALJ failed to address this issue and must do so on remand.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Community Newspaper Holdings v. Tabatha Hart; WCB No. 201568092; Alvey; Entered 5/18/2018.
Facts: Hart sustained a work-related left knee injury which required 3 surgeries. After RTW, she worked fewer hours, and eventually changed jobs. She has significant physical restrictions. The physical injury to the knee is not under appeal and will not be discussed.
Hart began having problems with anxiety, nervousness, panic attacks, and sleeping difficulty approximately 4 months after her second surgery, and began treating with Cumberland River Comprehensive Care. She denied previous bouts of depression, however, during her treatment she started thinking back to a sexual assault she experienced when she was in college. The counselling was sought due to her knee injury.
Hart filed Dr. Sprague’s report. He reviewed the records, and noted no prior inpatient or outpatient psychiatric or psychological therapy prior to the work injury. He diagnosed her with depressive features consistent with her medical condition with mixed features, body dysmorphia and mild PTSD. There was an indication of both anxiety and depressed features in behavior along with chronic pain symptoms. He assessed a 7%.
Dr. Allen saw Hart at the request of CNH. He diagnosed PTSD and persistent depressive disorder with anxious distress. He determined her psychological conditions stemmed from a sexual assault she experienced while in college, and post-partum depression following the birth of her twins. She required no treatment except for her pre-existing conditions, and assessed 5%, for the pre-existing, and none for the injury.
CNH filed Cumberland River Comprehensive Care (Drs. Graham and Bishop). Those records reflect complaints of anxiety, depression, trouble sleeping, and nightmares. The records reflect a sexual assault at age 17, and later, post-partum depression. There was no indication of any treatment prior to the 8/13/15 work injury.
The ALJ found a psychiatric impairment from the work injury, finding that even if she had a pre-existing psychiatric condition, it was exacerbated by the work injury, and used Dr. Sprague’s 7%.
Procedural History: CNH appeals from an award of a work-related left knee injury and a psychological injury requiring treatment with therapy and medications, and which resulted in the assessment of an impairment rating. CNH argues the finding concerning the psychological condition is flawed because the doctor was provided an incomplete or inaccurate history of her conditions.
Issues: Did the ALJ err in finding Hart’s psychological condition compensable? Was it improper to rely upon Dr. Sprague’s opinions because the information available to him was substantially incomplete or inaccurate?
Holding: No
Reasoning: CNH failed to prove that Hart’s condition was both active and impairment ratable prior to the date of the accident. There was no evidence establishing this condition was active prior to the injury, or that she had ever received any treatment for such condition.
The Cepero case was not applicable here as there was no evidence of a complete failure to disclose, nor affirmative efforts by the employee to cover up a significant injury prior to the alleged work related injury.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author, Date Entered: Cintas Corporation v. Sergio Rivas; WCB No. 201601712; Rechter; Entered 5/25/2018.
Facts: Revas worked for 20 years at Cintas as a loader, which required him to hang clothes on overhead racks, typically about 1000 articles per shift. He alleged repetitive use injury to his shoulders and neck which reached an apex on 8/10/2014.
He was removed from the loader position, does custodial work, and earns more. He testified he could not return to that position, even though he works without restrictions.
The WCB pointed out that the medical evidence only required a brief summary. Dr. Jules barefoot performed an IME, assigned 3% for pain, diagnosed a persistent severe scapula-thoracic strain secondary to repetitive work activities, and assigned restrictions against overhead work and cautioned that Rivas should not return to his work as a loader.
Dr. Timothy Kriss performed an IME and diagnosed chronically recurring/persistent muscular strain relative to repetitive activities in the loader position. He declined to assign a rating, however warned Rivas would continue to aggravate his muscle strain as long as he worked in the loader position. He later testified that Rivas should avoid intensive work above shoulder level.
The ALJ found that Rivas was not capable of doing the loader position on a full time basis, relying on both Barefoot and Kriss, and thus enhanced the award by the 3.
Procedural History: Cintas appeals from an award of PPD (enhanced by 3), arguing the ALJ failed to make the analysis required by Fawbush.
Issues: Did the ALJ err by failing to conduct an adequate analysis regarding whether Rivas is likely  to continue to earn the same or greater wage for the indefinite future?
Holding: Yes.
Reasoning: Cintas does not appeal the determination that Rivas has returned at same or greater wages, and no longer has the capacity to return to the type of work he performed at the time of the injury. In this claim, the ALJ concluded Rivas’ work injury permanently altered his ability to earn the same wages indefinitely. However, she articulated only a consideration of Rivas’ ability to continue employment with Cintas. The decision was vacated and the ALJ directed to render a complete Fawbush analysis determining whether Rivas is likely to earn the same or greater wage for the indefinite future in ANY employment.
A dissent filed by Alvey stated that he felt the ALJ had adequately addressed this issue.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author, Date Entered: Bradley Spalding v. Allegheny Technologies, Inc.; WCB No. 201790651; Alvey; Entered 5/25/2018.
Facts: Spalding filed his 101 alleging left upper extremity injury on 3/9/2017 when a metal bearing fell from his hand and shattered on the floor, causing pieces of metal to strike his left arm, severing an artery.
ATI filed a Form 111 and designated Special Answers including a safety violation by Spalding, and that he was engaged in horseplay. It then filed a Form SVE arguing Spalding was using an unapproved tip on his air wand at the time of the accident, which allowed an excessive amount of air pressure, and he was performing a task outside of his job duties. Spalding testified that as he was drying the ball bearing, which was about 4 inches in diameter, it slipped from his hand, striking the floor, came apart, and struck his left arm. He denied horseplay, or altering the tip of the air wand to one that was not OSHA compliant. He did not recall receiving safety training regarding air wand tips.
Following surgery, he was released to RTW without restrictions, however he did not return to ATI.
Medical records showed surgical repair of a large laceration, removal of a large foreign body, and the repair of a left arm brachial nerve injury, and the repair of the median nerve.
Dr. Barefoot’s IME resulted in a 14% rating. Dr. Rick Lyon assessed 4%. Neither found restrictions.
Several employees testified. Harris was the supervisor on that date, but did not see the incident.  He recalled safety training concerning air wands. Smith testified Spalding would use the hose to spin the bearings, and then drop them on the floor to see how far they would go. He did not see the incident.
Supervisor Lee said the air guns were discussed previously. Any air guns found altered would be removed.
Green, Environmental Safety Inspector, stated safety training was performed, his post-accident inspection revealed shrapnel from the ball-bearing was found in a seventy-foot diameter area, the air wand in Spalding’s bag had blood on it, and was not fitted with the correct tip, and the investigation revealed the explosion of the ball-bearing, and not that it had fallen on Spalding’s arm.
Osbourne, maintenance leader, noticed small metal fragments around the area, the tip on Spalding’s air wand had no diffuser, which meant that airflow was unregulated, and the only wand in the area with blood was the one in Spalding’s toolbox.
Plant Manager Drane testified that Spalding told him he dropped the bearing and exploded when it hit the floor, blood splattered 30 feet from the box, Spalding’s air wand was not fitted with the approved tip.
Dr. Stichter was a mechanical engineer who performed an evaluation of the circumstance of the incident. It was the first time he had provided an evaluation concerning bearing failure. He did hold bachelors, masters, and doctoral degrees in mechanical engineering, and had been involved with bearings previously. He described the air wand tip, and testified the bearing was spinning when it impacted the surface, at greater than 10,000 RPM, and the appropriate air wand would not have caused the bearing to shatter, or created the speed as determined at impact.
After the submission of the case, and after the filing of briefs, Spalding moved to introduce “newly discovered” evidence in the form of a 1/15/18 arbitration decision from Spalding’s union grievance, which ATI objected to.
The ALJ dismissed the claim.
Procedural History: Spalding appeals from an order dismissing his claim for left upper extremity injuries he sustained on March 9, 2017 while working for ATI.
Issues: 1.)  Did the ALJ err in dismissing the claim for the failure of Spalding to sustain his burden of proof that he sustained an injury arising out of and in the course of his employment?
2.) Did the ALJ err in excluding the introduction of the decision from Spalding’s arbitration stemming from his grievance regarding his termination?
3.) Was the ALJ required to make a recitation of the factors enumerated in Daubert concerning the expert testimony of Dr. Stichter?
Holding: 1.) Yes
2.) No
3.) No
Reasoning: 1.) The ALJ failed to specifically make a determination regarding whether Spalding’s injury occurred to ether horseplay or resulted from a violation of KRS 342.165 (1). She merely determined Spalding failed to satisfy his burden of proving he sustained an injury arising out of and in the course of his employment. The ALJ must address the affirmative defenses.
2.) There are specific timeframes for the introduction of evidence. While the regulations provide a provision concerning additional discovery or proof between the BRC and hearing, no such provision exists for introduction of evidence after the hearing.
Further, the arbitration evidence was not “newly” discovered. It was “new’, not “newly”, as it did not exist at the time of the hearing, or when the parties submitted their briefs, a requirement. This type of evidence must have existed, and not have been discovered, and with the exercise of due diligence could not have been discovered at the time a matter was discovered. It cannot be evidence that came into existence later. Spalding knew of the date of the hearing, and made no attempt to delay the WCH, nor seek additional time to allow for the introduction of the evidence.
Lastly, as the ALJ noted, the decision was that of a different tribunal with different rules, standards of proof, and burdens of proof. This was in the discretion of the ALJ regarding admission of evidence.
3.)  The ALJ is simply required to make a reliability determination. The Daubert analysis is a “flexible” one designed to separate opinions reached by valid scientific methods from unsupported speculation.
Here, Dr. Stichter had excellent academic credentials, fully explained the process he used and the materials he reviewed. He also explained his experience working with bearings.
The case was remanded for a determination of whether a work injury occurred, and the application of either horseplay, or a safety violation were factors.
Disposition: Affirmed in Part, Vacated in Part, Remanded
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Ryan Houston v. Greenup County Fiscal Court; WCB No. 201263966; Alvey; Entered 5/25/2018.
Facts: Houston was struck by a car on October 31, 2012. He settled his claim for injuries involving right ankle sprain, left foot fracture and left meniscal tear on November 25, 2014.
Houston filed a motion to reopen on May 18, 2016 alleging his condition had worsened. He noted additional surgeries as well as psychiatric treatment for his work injuries. Inter alia, Greenup filed to dismiss asserting Houston was aware of his psychiatric condition at the time he settled his claim, but did not present it as a condition at that time. The AU dismissed the reopening for failure to give notice of new conditions as soon as practicable, and because he was not convinced of any increase in disability for the other injuries.
The WCB held that the statute does not require notice of claims, only notice of the accident. Greenup was certainly aware of the accident and injuries, and therefore notice was satisfied. The WCB directed on remand the AU enter findings of fact addressing whether Houston had a known psychiatric claim at the time of settlement. It also directed, that after identifying the physical injuries encompassed by the Settlement Agreement, the AU must determine whether there was a worsening of the impairment due to a condition caused by the injuries since the date of the award or order.
On remand, the AU again dismissed the reopening, finding the Plaintiff had failed to establish any worsening of the conditions for the injuries, relying primarily on the report and opinions of Dr. Zerga. The AU further held that the Plaintiff had clear knowledge of his psychiatric issues before 2014. As a result, the claim for psychiatric conditions was barred by lack of notice.
Procedural History: Houston appeals this dismissal of a reopening that had previously been remanded by the WCB for a decision of the AU resolving additional issues raised by Houston at the BRC but not addressed in the AU's decision. Houston argues the AU erred in dismissing his claim for a psychiatric/psychological injury.
Issues: 1.) Was there sufficient evidence for the AU to rely on when he found a lack of worsening of Plaintiff's conditions on reopening?
2.) Was the determination concerning the psychiatric conditions sufficient? 
Holding: 1.) Yes
2.) No
Reasoning: 1.) Dr. Zerga's opinions were more than sufficient. He performed an exam, reviewed medical records, and, reviewed a surveillance video. His rating was less than the one reflected in the settlement agreement. No contrary result was compelled.
2.) The AU determined that based on the report of Mr. Keith Haas, LCSW, that "Houston clearly had knowledge of his psychiatric issues prior to 2014." Those records, however, fall short of establishing Houston was diagnosed, or his conditions became manifest prior to the settlement of the claim. At no time did Haas state that Houston was diagnosed with a psychiatric/psychological condition prior to the settlement. In addition, no other records of other medical providers support the AU's findings. While Houston may have been experiencing problems the AU has failed to point to evidence that Houston was aware of or had been diagnosed with a psychological condition at the time he settled his claim. On remand, the AU was directed to again review the evidence and make his decision.
Disposition: Affirmed in Part, Vacated in Part, & Remanded
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Ray Fitch v. Larry Melton/Circle T Restaurant; Bulan Meat; WCB No. 201558106; Rechter; Entered 5/18/2018.
Facts: Fitch was a garbage collector who fell off the side of a truck on 12/16/2015, fracturing his clavicle, which required surgery. Following the surgery, he developed adhesive capsulitis in the left shoulder, which was agreed to be work-related. Melton, however, disputed the cervical, thoracic, and psychological injuries. Only those conditions will be discussed here.
Following the injury Fitch complained of radiating neck pain. A CT scan revealed no evidence of acute fracture, but did indicate multilevel degenerative disc and joint disease producing spinal stenosis with cord compression. An MRI did show central disc herniation at C4-5 and C5-6. Referral to a surgeon only resulted in pain medication.
A thoracic x-ray revealed mild degenerative change with scoliotic curvature.
Following the injury Fitch was reported to have anxiety, depression, insomnia, and panic attacks. Fitch acknowledged as far back as high school, but no treatment. In August, 2016, Fitch was admitted to Highlands Regional Medical Center for suicidal ideation, and was diagnosed with major depression, severe and generalized anxiety disorder.
Dr. Megan Green, a licensed clinical psychologist performed an independent psychological evaluation and offered two diagnoses: moderate depressive disorder with anxious distress, and borderline intellectual functioning. The psychological complaints were directly related to the work injury. She assigned 25%, with5% prior active due to the borderline intellectual functioning.
Dr. Bruce Guberman conducted an IME and diagnosed chronic post traumatic sprain of the cervical spine with disc herniation at C4-5 and C5-6; and post-traumatic sprain of the thoracic spine. He assigned 11% for the shoulder, 6% for the cervical, and 5% for the thoracic for a total of 20%. He did not retain the capacity to return to his former work.
Dr. David Muffly performed an IME, diagnosing resolved cervical and thoracic strain with normal cervical and thoracic examination. He assigned 8% for the shoulder, and 0% for the cervical and thoracic.
Dr. Timothy Allen performed a psychiatric evaluation diagnosing major depressive disorder (mild to moderate), and borderline intellectual function. The chronic pain from the shoulder triggered the major depressive disorder. He assigned 10%, due equally to the major depression and intellectual functioning. There were no restrictions.
The ALJ awarded PPD and medical for the clavicle and left shoulder, and, relying on Muffly, there was no work-related cervical or thoracic spine injury. Finding there were psychological issues preceding the work injury, and relying on Dr. Green, the psychological claim was also dismissed.
Procedural History: Fitch appeals from an award of income and medical benefits for a clavicle and left shoulder injury, but dismissing claims for cervical, thoracic and psychological conditions. Fitch also argues he is permanently totally disabled.
Issues: 1.)  Did the ALJ err in failing to award benefits for the psychological injury, and by failing to address sufficiently why he ignored uncontroverted medical testimony?
2.) Was the dismissal of the cervical and thoracic claims supported by the evidence?
Holding: 1.) Yes
2.) Yes
Reasoning: 1.) The ALJ may not disregard uncontroverted medical evidence on a question that properly lies within the province of medical expertise, but there are exceptions, such as a substantially inaccurate or largely incomplete medical history and an opinion unsupported by other credible evidence.
Here, the opinions agreed on the 5% for the borderline intellectual functioning, and that Fitch suffers depressive disorder attributable to the work injury. Their ratings were different:  Dr. Green assigned 20% and Dr. Allen assigned 5%.
The WCB found that Essentially the ALJ did not correctly summarize and interpret Dr. Green’s report. He then placed too much emphasis on a statement in Dr. Allen’s report, without sufficient explanation. The ALJ’s summary of the psychological evaluations, and the conclusions therefrom, rejecting Fitch’s claim, must be explained by the ALJ with legally sufficient reasons given. This includes the misstatement of facts, and unsubstantiated and “troublesome” correlation between Fitch’s depression and borderline intellectual functioning. The ALJ may again be persuaded to reject the uncontroverted medical proof of Fitch’s work-related depression, but must articulate a legally sufficient reason based on accurate facts in the record.
2.) This was simply conflicting evidence. The ALJ has the discretion to choose.  The evidence did not compel a particular result.
****On remand, after determining whether there was a work-related psychological injury, the ALJ must include consideration of that impairment in determining whether there is a PTD.
Disposition: Affirmed in Part, Vacated in Part, Remanded
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author, Date Entered: Erron Benson v. Jefferson County Public Schools, & JCPS v. Benson; WCB No. 201260344; Alvey; Entered 5/11/2018.
Facts: Benson filed alleging injuries to his low back and left leg occurring on November 2, 2012 when making a left turn driving a school bus. He neither treated nor experienced low back pain previous to the injury. Benson was assigned an old bus. He began experiencing back symptoms, but not leg symptoms three weeks prior to the injury. He then experienced sharp pain on November 2.
After treatment with OPS, Dr. Bilkey, Dr. Mitch Campbell, and Dr. Thomas Kelly, Benson was treated by DR. John Harpring who performed surgery at L4-5 on January 17, 2014. After Benson continued to experience numbness and tingling in the left leg, as well as low back pain, Dr. Harpring performed a second surgery at L5-S1 on January 19, 2015. A MVA on 9/1/2012 resulted in a neck injury and a temporary aggravation of the low back injury.
Benson treated with Dr. Bilkey from January, 2013 through August 2013 for progressive low back pain. An MRI 2/1/2013 revealed a left L4-5paracentral disc herniation, impingement of the L5 nerve root, mild to moderate spinal stenosis and; L5-S1 disc herniation, spinal stenosis, and lateral recess and foraminal encroachment. He referred Benson to Dr. Campbell.
Campbell treated Benson from March 2013 thru August 2013. After referral for pain management, Campbell referred Benson to Dr. John Harpring for possible decompression surgery. On January 17, 2014 Harpring performed a left L4-5 discectomy for the herniated disc. With complaints of pain, numbness, and tingling continuing, in retrospect, Harpring thought L5-S1 was also contributing to the problem. On 1/19/2015 he performed a left L5-S1 discectomy for a herniated disc.
Harpring testified the L4-5 was directly related to the work injury, and the L5-S1 surgery was a dormant condition aroused and brought into a disabling reality by a work injury. There was no prior active, and he assigned 12%, but thought Dr. Bilkey’s method of impairment was more appropriate, and deferred to his 20%.
Benson filed several reports of Dr. Bilkey. Who assigned 20%, all related to the work injury and no evidence of pre-existing active. The pre-existing abnormalities were asymptomatic and dormant prior to November 2, 2012, and brought into disabling reality.
JCPS filed Dr. John Guarnaschelli who found several pre-existing conditions. While the second surgery at L5-S1 was necessary, it was not work-related.
JCPS filed the reports of Dr. Russell Travis who agreed the first surgery was necessary and work related, but the second surgery was not related to the work injury.
JCPS filed Dr. Greg Gleis. Dr. Gleis found a pre-existing, active and symptomatic lumbar condition, and assessed a 5% for this. The first surgery was necessary and work related, and he assigned 13%; 5% prior active, and 8% for the injury. The second surgery was not work-related.
Relative to the second surgery, the ALJ found the consensus opinions of Travis and Gleis more convincing than that of Bilkey. The ALJ also found Gleis most credible on the rating and the pre-existing condition.
Procedural History: Benson appeals the award which denied him the compensability of his second surgery, and ensuing benefits, and in carving out 5% of the 13% impairment rating as prior active.
Issues: 1.) Did the opinions of Drs. Travis and Gleis constitute substantial evidence supporting the ALJ’s decision that the second surgery was unrelated to the 11/2/2012 work injury?
2.) Was the analysis of the ALJ regarding a pre-existing active condition in conformity with the direction set forth in the Finley case?
Holding: 1.) Yes
2.) No
Reasoning: 1.) The opinions were also consistent with Dr. Guarnaschelli. The ALJ was fully aware of Dr. Harpring’s testimony and adequately explained his decision. The ALJ relied on Dr. Travis’ observation that Benson complained only left lower extremity pain after the 11/2/2012 incident which is consistent with left L4-5 disc fragmentation.
2.) The ALJ found that Benson was not actively symptomatic prior to the date of injury. He then, however, carved out 5% to a pre-existing condition, and found the work injury aroused a dormant non-symptomatic but impairment ratable condition into disabling reality. On remand, the ALJ was directed to follow Finley in determining whether Benson’s pre-existing condition was symptomatic and impairment ratable pursuant to the AMA Guides. If not, a carve-out for the pre-existing condition is inappropriate.
****SUA SPONTE the WCB found that the ALJ’s finding of no permanent injury to the left knee was ended prematurely, as his analysis should have continued on concerning entitlement to TTD benefits and medical benefits. The issue was remanded for follow up and a determination of entitlement to these benefits.
Disposition: Affirmed in Part, Vacated in Part, Remanded
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Patrick Turner v. Ricky Bledsoe Trucking; WCB No. 201572964; Rechter; Entered 4/27/2018.
Facts: Turner began working part-time for Bledsoe in May, 2015, and then fulltime in June. He was involved in a MVA on 8/13/2018 alleging injuries to his head, neck, shoulder and ribs. Notably, a CT scan of the head confirmed multiple bilateral cerebral hemorrhagic contusion/petechial hemorrhages.
Dr. David Jenkinson performed an IME, diagnosing a fracture dislocation of the left shoulder and a closed head injury with no apparent residuals. He assigned 14% for the shoulder, with no restrictions, but noticed some limited range of motion in the left arm.
Dr. Timothy Allen performed an independent psychiatric evaluation (IPE), diagnosing mild neurocognitive disorder and major depressive disorder, mild, recurrent. He also diagnosed a mild traumatic brain injury complicated by intracranial hemorrhage and status post left humerus fracture with surgical repair. There were measureable deficits of attention, processing speed, and executive function with permanent impairment from the traumatic brain injury. He noted a pre-existing major depressive disorder, and that Turner had experienced an exacerbation of depressed mood after the work injury with persistent symptoms He assigned a 10% rating due to psychiatric causes, one-half related to the pre-existing condition and one-half to the injury. There was also a 14%impairment of the central nervous system due to the mental status changes related to the accident.
Dr. Frank Burke performed an IME and assessed a 20% WPI for the upper extremity, and 2% for a forehead scar for a combined 22%.
Dr. Shraberg performed an IPE and diagnosed a traumatic brain injury, mild to moderate, with bilateral punctate hemorrhages. He concluded that Turner manifested no evidence of a permanent neurocognitive disorder from the closed head injury. He was critical of Dr. Allen’s report, and noted previous treatment. All post concussive symptoms had resolved. He assigned 0%.
In a supplement, Dr. Allen continued to believe Turner had evidence of acquired impairments of executive functioning and selective attention consistent with a traumatic brain injury that occurred in the accident.
Turner claimed he was paid in cash and by check, and that once he reached $700.00 per week, it was all cash.
Bledsoe said that Turner started full time in June, but there were 3 weeks with little or no work. There were times he advanced cash, and then deducted from Turner’s check. There was no truck available for Tuner for three weeks due to an accident, and waiting on insurance proceeds to purchase a new one.
Bledsoe submitted a wage certification of AWW as $327.38, reflecting from May 14, 2015 thru 8/6/2015. In an interlocutory order, the ALJ found AWW to be $327.38, while lamenting the lack of evidence provided by both parties, and using the employer’s calculations because they were “supported by more substantive evidence.” Turner’s argument was that for this three week period, his employment was terminated, and thus he worked for less than 13 weeks, requiring a different calculation of AWW.
The ALJ further relied on Dr. Shraberg and found no impairment and no need for further treatment. He further relied on Dr. Jenkinson for the shoulder at 20%, and found Turner less than credible, and found he could return to his same work as a truck driver and not entitled to multipliers.
Procedural History: Turner appeals from an award raising issues concerning the ALJ’s calculations of his AWW, the failure to award benefits for injury to the central nervous system from a traumatic brain injury, the ALJ’s reliance upon the opinion of Dr. David Shraberg, and the failure to enhance benefits by the 3 multiplier.
Issues: 1.) Was the AWW correctly calculated?
2.) Did the evidence compel a finding that Turner sustained a permanent injury related to the central nervous system/closed head injury?
3.) Was Turner entitled to the three multiplier?
Holding: 1.) No
2.) No
3.) No
Reasoning: 1.) The ALJ did not sufficiently give full consideration to the three-week period of no work. If the three week period was a termination of the employment relationship, Turner worked for less than 13 weeks, and AWW should be determined under KRS 342.140 (1) (e). The ALJ’s decision is vacated and remanded for further findings. There was however no error in basing the wages on paychecks only, as no evidence was submitted concerning the cash payments.
2.) The ALJ acted in her discretion when she found Dr. Shraberg to be more persuasive regarding the traumatic brain injury and whether it caused lasting psychological or physiological injuries.
3.) The ALJ’s opinion demonstrates she weighed the physician’s opinions and Turner’s testimony. She specifically found Turner not credible concerning the effect of his left shoulder on his ability to work, noting Turner is right-hand dominant, has engaged in truck driving post-injury, and was fit for his CDL. She also relied on Dr. Shraberg as well as Dr. Jenkinson.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: April Mayhew v. Bolster and Jeffries Health Care Group, LLC d/b/a Auburn Nursing; No. 2017-CA-001460; Combs; Rendered 3/23/2018; Not To Be Published
Facts: This is an unusual case in that the COA reversed decisions of the ALJ, as affirmed by the WCB, concerning substantial evidence.
Mayhew worked as a CAN at Auburn Nursing Home when she alleged an injury to her lower back that occurred on 2/26/2015. On 3/25/15 an MRI revealed a lumbar disc herniation at the L5-S1 level with S1 root decompression. Surgery was performed on 3/15/15.
Auburn claimed that Mayhew sustained no objectively verifiable injury on 2/26, and that her pain was attributed to pre-existing symptoms.
Following review of medical records which revealed treatment of the lower back prior to this injury, Dr. Dennis O’Keefe diagnosed low back and left leg pain, secondary to the disc herniation at L5-S1- not related to the work injury. It appears to have represented a pre-existing active condition that began with employment at the nursing home. Dr. O’Keefe testified that her rating prior to the injury would have been be 10%, based on his review of the medical records. (It should be noted that no rating was in fact ever assigned to Mayhew prior to her injury). While the surgery was reasonable and necessary, it was not related to the work injury.
Procedural History: This is an appeal from the WCB which affirmed the ALJ decision to dismiss Mayhew’s claim for benefits for an injury occurring to Mayhew’s lower back. The ALJ rejected the claim on the basis of her alleged failure to present substantial evidence in support of her claim.
Issues: Did the evidence in this case compel that an analysis under Finley v. DBM Technologies be performed?
Holding: Yes
Reasoning: In light of Mayhew’s previous work history and symptomology the ALJ and the WCB clearly erred in failing to consider whether Mayhew suffered an arousal of any pre-existing condition. The case falls squarely within Finley. Mayhew had been working at the time of the injury. She had not been assigned any rating for a pre-existing condition, (Dr. O’Keefe testified he would have assigned her 10% prior to the injury) nor had she been assigned restrictions. A physician, Dr. Richard Fishbein, whose testimony was not summarized, opined that her “pre-existing condition deserved some apportionment.” The sudden onset of pain on 2/26 falls within the parameters of Finley.
To summarize, the evidence is clear that Mayhew suffered a work-related injury in the course of her employment. It is not clear whether the injury of 2/26 is solely responsible for her pain or whether it aroused a pre-existing condition.
Disposition: Vacating and Remanding
ALJ: Hon. Douglas Gott
COA Panel: Kramer, Combs, and Johnson

Case Name, Citation, Author: Hazard Community College v. Wayne Melton; No. 2016-CA-001635; Thompson; Rendered 2/9/2018; Not To Be Published.
Facts: The Parties settled a lumbar spine injury case with Melton retaining the rights to future medicals.
HCC filed the MFD challenging Melton’s medications of Butrans, Hydrocodone/APAP and Duloxetine, attaching a U/R of Dr. Woodley Mardy-Davis that the treatment with the medications was not related to the work injury and neither medically necessary nor appropriate. Dr. Laura Asher was also added as a party.
A telephonic BRC was held on March 14, setting another telephonic BRC for April 12, and giving the Parties 30 days to submit evidence. Asher did not participate in the BRCs. The Parties waived the hearing on April 12, and the ALJ submitted the case, even though the 30 days had not yet elapsed.
On 4/12, Dr. Asher sent a letter to the ALJ setting forth Melton’s treatment and the reasons supporting her prescriptions. On April 18, the ALJ advised all Parties she had received the letter to ensure proper filing in the record.
On April 28, HCC filed an objection and motion to strike Dr. Asher’s correspondence as untimely and prejudicial. The ALJ denied this noting that HCC did not move to set aside the submission of the claim for decision, nor did it attempt to rebut Dr. Asher’s assertions.
The ALJ issued her decision denying HCC’s MFD. The WCB affirmed noting that the proceedings in a post-award MFD in a reopening are governed by 803 KAR 25:012 which allows for further proceedings, and not establishing a scheduling order.
Procedural History: Hazard appeals from the WCB opinion affirming the ALJ’s MFD order and opinion which determined the medications to Wayne Melton were compensable.
Issues: In this post award MFD, did the ALJ properly allow a Party to submit evidence after the case was taken under submission?
Holding: Yes
Reasoning: The courts afford an administrative agency’s regulatory interpretation great weight particularly when determining a regulation’s meanings and contours.
803 KAR 25:012 governs the procedures for resolution of medical disputes. While 803 KAR 25:012 provides deadlines for when proceedings should be filed, unlike 801 KAR 25:010 it does not provide any deadlines or procedures for an ALJ to follow in resolving such a dispute.
The ALJ did not abuse her discretion allowing the report to be filed 3 days late. By failing to ask the ALJ to reopen proof to rebut Dr. Asher, HCC is trying to deny Melton compensation for medicine for the relief of his pain on a technicality rather than by fulfilling its burden of proving that the medicine Melton is receiving is not necessary for relief from his injury.
Disposition: Affirmed
ALJ: Hon. Jane Rice Williams
COA Panel: Johnson, Jones, and Thompson

Case Name, Citation, Author: Jason Conley v. Super Services, LLC; WCB No. 201585739; Alvey; Entered April 13, 2018.
Facts: Conley sustained a work injury which required a right L4-5 hemilaminotomy, torminotomy, and microsurgical discectomy. MFD was filed by Super Services challenging the reasonableness and necessity of a proposed spinal cord stimulator trial requested by Dr. Timothy Deer, as well as repeated sacroiliac joint injections, caudal epidural steroid injections and a referral to a neurosurgeon requested by Dr. Sai Gutti.
Conley filed Dr. Gutti’s records which showed that prior injections resulted in pain relief greater than 50% of the time. He recommended lumbar steroid injection for aggravated pain.
Super Service filed a MFD challenging a proposed spinal stimulator trial proposed by Dr. Deer, relying on a U/R report of Dr. David Trotter, and a report by Dr. Henry Tutt. These reports held that the stimulator was neither reasonable nor necessary.
Another MFD challenged the reasonableness and necessity of “repeat sacroiliac injection request by Dr. Gutti, relying on a U/R report of Dr. Joseph Braun. Braun indicated the procedure is no longer supported by The Official Disability Guidelines. (ODG). According to the ODG, intra-articular injections are not recommended since there is no further definitive treatment that can be recommended based on any diagnostic information potentially rendered.
A third MFD challenged the reasonableness and necessity of a recommended caudal epidural steroid injection and referral to a neurosurgeon by Dr. Gutti. Dr. Lewis concluded the request is not medically necessary or appropriate due to the ODG which requires documentation of radiculopathy due to a herniated nucleus pulposus, objective findings on examinations, and corroboration of radiculopathy by imaging studies and/or electro-diagnostic testing.
The original claim was settled reserving for a decision the outstanding MFDs challenging the repeat lumbar caudal injections, repeat lumbar SI joint injections, proposed spinal cord stimulator and referral to a neurosurgeon.
The ALJ, relying on Drs. Braun and Lewis, held the repeat caudal injections and SI joint injections were not reasonable and necessary, and thus were not compensable. The spinal cord stimulator and referral to the neurosurgeon were reasonable and necessary.
Procedural History: Conley appeals from an Opinion and Order finding recommended repeat caudal injections and SI joint injections non-compensable. A spinal cord stimulator and neurologist referral were found to be compensable.
Issues: Did the ALJ utilize an improper standard in deciding the medical disputes addressing the repeat lumbar caudal injections and SI joint injections in favor of Super Service?
Holding: No
Reasoning: The ALJ did not use an “improved functioning” standard in making her determination as argued by Conley. Rather, this was one of several factors considered by Dr. Lewis in determining the caudal epidural steroid injection was not medically reasonable or necessary. Dr. Braun stated the SI joint injections are no longer supported by the ODG. His report quotes the ODG. The ODG requires documentation of radiculopathy due to a herniated nucleus pulposus, objective findings on examination, and corroboration of radiculopathy by imaging studies and/or electro-diagnostic testing. Here, there was no documentation of functional improvement or an associated reduction of medication use for 4 to 8 weeks.
Disposition: Affirmed
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Toyota Motor Manufacturing Kentucky, Inc. v. Estill Rickerson; WCB No. 201664257; Alvey; Entered 4/27/2018.
Facts: Rickerson alleged a low back injury on September 1, 2016, while acknowledging a WC award for a low back injury in 1997. Rickerson amended to claim both a specific injury and a cumulative trauma injury, with an injury/manifestation date of September 1, 2016. The specific event which he listed was an immediate back pain when forcing an exhaust system onto an engine.
Dr. James Bean performed a surgery for a work-related injury at L5-S1 in 1997. In 2004 Rickerson returned to Beanfor back pain, and eventually treated with chiropractor Dr. Leverette, about “every 4 or 5 years”. When seeing Leverette on August 2, 2016, he referred his back problem to the 1997 injury. After the new onset of 9/1/2016, Rickerson was eventually seen by Dr. Brett Scott who performed L3-4 surgery on 11/1/2016. Rickerson claimed he was unaware of a “new” injury until the MRI of 10/7/16 revealed problems at L3-4.
Leverette’s records of August, 2016 show several visits with low back and left leg pain, which Rickerson attributed to work, however, reporting the 1997 injury.
Toyota filed Dr. Harries who noted bilateral lower extremity numbness beginning in September, and an October, 2016 MRI which demonstrated a large right L3-4 disc herniation and left sided facet hypertrophy resulting in stenosis.
Rickerson filed the records of DR. Scott who performed bilateral L3-4 partial hemi-laminectomies, L3-4 medial facetectomies, and L3-4 discectomies. His records reflected the 1997 injury.
Rickerson filed the report of Dr. Frank Burke which reflected a July 1, 2016 injury date, and assessing 13% to the new injury as a result of work duties. An amended report reflected the correct injury date of September 1, 2016, noted the specific event involving the heavy lifting duties, and further discussed the effects of 26 years of hard manual labor on Dickerson’s back.
Toyota filed Dr. Thomas Menke who diagnosed a large right paracentral disc herniation at L3-4 with a good surgical result. The medical records did not support a work injury. Without considering causation, Menke assigned 11% for the herniation and surgery. There was no pre-existing impairment since the 1997 surgery was successful. At his deposition, Menke later assessed 10% for the 1997 L5-S1 surgery, but testified the prior condition was not active. Menke now assigned 12%, but did not believe the disk herniation was work-related.
The ALJ found work-relatedness, awarded 12%, with 10% prior active, for a net of 2% for what he described as the “work” injury.
The ALJ then awarded 12% interest on back due benefits.
Procedural History: Toyota appeals from an award finding Rickerson sustained a work-related low back injury and receiving TTD, PPD, and medical benefits. Toyota argues the ALJ inaccurately summarized Dr. Nichols Leverette’s chiropractic records, which it claims compels a finding that Rickerson’s low back condition occurred prior to the alleged September 1, 2016 injury date.
Issues: Was the ALJ’s summary of Dr. Leverette’s records inaccurate and insufficient?
Holding: No
Reasoning: Toyota essentially asked for a re-weigh of the evidence, and a direction to rule in its favor. The ALJ chose to rely on Drs. Burke and Scott for causation. Toyota simply identifies evidence which would support a decision in its favor. This is simply not the WCB’s function. The ALJ’s findings are sufficient to apprise the parties of the basis of her decision.
The WCB did reverse and remand on the 12% interest imposed.
Disposition: Affirmed in Part, Vacated in Part, Remanded
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author, Date Entered: Charles C. Morrow v. PGT Trucking; WCB No. 201401537; Rechter; Entered 4/27/2018.
Facts: On July 21, 2015, Morrow filed his Form 102 alleging he developed an occupational disease as a result of exposure to dust fumes and chemicals, manifesting on March 20, 2013. Later, on September 20, 2016, he amended his claim to allege a caustic inhalation injury occurring “in March, 2013”.
Morrow was loading a generator onto his truck on March 20, 2013 when fluid leaked. Shortly thereafter, he developed shortness of breath and breathing problems, and was referred to Dr. Bjorn Thorarinsson for treatment.
Medical records of March 17, 2013, however, show complaints of chest pain for two weeks, with no complaints of a chemical exposure.
When seen in June complaining of coughing and wheezing, records show a history going back to 2000, and Dr. Domingo diagnosed COPD. The following month he was again diagnosed with COPD, and history then revealed a 30 year history of smoking.
Dr. George Zaldivar evaluated on 1/28/2015, but was provided no records. Morrow’s history was not consistent with his blood carbon monoxide level, and the doctor diagnosed COPD, attributed to smoking.
Dr. Fred Rosenblum conducted a university evaluation. He diagnosed COPD with bronchitis due to the alleged inhalation injury of March, 2013. He assessed a Class 3, 50% WPI.
In an addendum, after reviewing records and Rosenblum, Dr. Zaldivar concluded that Rosenblum did not take into account the 30 years of smoking, emphasized the airway obstruction was minimal, and disagreed with the rating.
The ALJ found the COPD and bronchitis were not related to any alleged occupational exposure, or any event, and found the treatment records and respiratory studies to be thoroughly dispositive.
In rejecting Dr. Rosenblum, the ALJ detailed the records and history that was not presented to Dr. Rosenblum, and that Morrow’s treatment history was not corroborated by the medical treatment records. In short, the ALJ did not believe Dr. Rosenblum was provided an accurate history.
Procedural History: Morrow appeals from an Order dismissing his claim for an occupational disease. He argues the ALJ improperly disregarded the opinion of the university evaluator.
Issues: Did the ALJ fail to afford Dr. Rosenblum’s opinion, as a university evaluator, presumptive weight?
Holding: No
Reasoning:  The university evaluator’s opinion is rebuttable. The ALJ set forth several shortcomings in his opinion, primarily centering on the history provided by Morrow concerning the onset of his symptoms. The history he received contradicted histories provided other providers. Tests confirmed higher levels of tobacco use than reported to Rosenblum. The ALJ is free to conclude Dr. Zaldivar’s opinion sufficiently rebutted that of Dr. Rosenblum.
Disposition: Affirmed
ALJ: Hon. Stephanie L. Kinney

Case Name, Citation, Author, Date Entered: Steven Grunbaum v. Walsh-Vinci; WCB No. 201602800 & 201602798; Rechter; Entered 5/4/2018.
Facts: Grunbaum began work as a laborer in June, 2015, and started having complaints of left shoulder issues in January or February, 2016. Left elbow symptoms developed in July, 2016, with a specific event around August 10, 2016 when he was resting his weight on his elbow while kneeling to lay rebar.
On April 1, 2016 Grunbaum treated with Dr. Ryan Modlinski, and gave a history of onset of left shoulder pain with gradual progression over the past 4-5 months. Pain was aggravated by the work which involved heavy lifting pulling, swinging hammers, etc. Dr. Modlinski diagnosed left shoulder pain, left sub-acromial bursitis, and left shoulder impingement.
Grunbaum sought treatment with Dr. Daniel Rueff, of Ellis and Badenhausen Orthopedics, who diagnosed left shoulder rotator cuff tendonitis and sub-acromial bursitis. At an 8/12/2016 appointment at Ellis and Badenhausen, Grunbaum was evaluated by Dr. Akbar Nawab, in Rueff’s office, for an elbow injury, and Nawab continued to treat Grunbaum moving forward. Eventually, Nawab performed shoulder surgery to repair a full tear of the rotator cuff.
Dr. Warren Bilkey performed an IME, and concluded Grunbaum sustained a left shoulder strain due to repetitive work/cumulative trauma, and diagnosed impingement, bursitis, and rotator cuff tear. He further concluded Grunbaum sustained a work-related left elbow strain/contusion and related MRSA septic olecranon bursitis. There was no rating for the elbow, and Grunbaum was not yet at MMI for the shoulder to have a rating.
Dr. Ronald Burgess performed an IME and assigned 0% for the left elbow, which was unrelated to the left shoulder. The left shoulder likely needed revision. The tear to the left shoulder was produced by a subsequent event after the original MRI.
The ALJ relied on Dr. Burgess over Dr. Bilkey. Further she found Grunbaum not to be credible, and the history given to Bilkey by him was not a reliable basis for his diagnosis or an opinion.
Procedural History: Grunbaum appeals from an opinion and order dismissing his claims for alleged left shoulder and elbow injuries, arguing the ALJ misinterpreted the report of Dr. Warren Bilkey, and, failed to award, at a minimum, TTD and medical benefits, to the Claimant.
Issues: Was there sufficient evidence for the ALJ to rely on the opinion of Dr. Burgess over that of Dr. Bilkey?
Holding: Yes
Reasoning: The ALJ properly understood and considered Dr. Bilkey’s report. It was her prerogative to weigh the contrasting opinions. Again, the rejection was based in part on the history Grunbaum provided, but also on her conclusions that Dr. Burgess’ opinions were more consistent with the medical treatment records.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author, Date Entered: Evelyn Eagle v. Sourcehov Holding, Inc.; WCB No. 201573950; Stivers; Entered 5/11/2018.
Facts: Eagle alleges she sustained work-related injuries to her neck and lower back, as well as bilateral carpal tunnel syndrome on June 11, 2015, lifting boxes all day and feeling sharp pain in her neck and low back, and, numbness and tingling in the upper extremities and hands. She later amended her claim to include psychological.
Sourcehov introduced the IME of Dr. John Vaughan who opined the cervical and lumbar conditions were not caused by the work incident, but were pre-existing active conditions. There was no evidence of a harmful change to the human organism caused by the work incident. He assigned 25% to the cervical for a prior fusion (0% to the injury), 0% to the lumbar (all was age-related). Eagle could return to light and medium job activities.
Sourcehov also filed Dr. Ellen Ballard IME. She found no complaints related to a work-injury, with no further treatment or restrictions warranted. She assigned 0%.
Procedural History: Eagle appeals from the ALJ’s dismissal of her claim for failing to establish she sustained an injury as defined by the Act, arguing the ALJ failed to conduct a proper analysis regarding a pre-existing, active condition.
Issues: 1.) Did the ALJ conduct a proper analysis of the pre-existing active condition?
2.) Did the ALJ err in failing to make any appropriate findings regarding any psychological component to her work injury?
Holding: 1.) Yes
2.) Yes
Reasoning: 1.) The ALJ clearly relied on the opinions of Drs. Vaughan and Ballard in finding that Eagle did not sustain a physical work injury. The ALJ was not required to set forth any analysis regarding pre-existing, active disability. This is not a case where the ALJ was apportioning impairment between the work-related injury and a pre-existing active condition.
2.) Both parties introduced evidence concerning the alleged psychological injury, and the ALJ failed to address this part of the claim. Since the ALJ allowed a claim for psychological to be asserted, he must address the claim, and the case was remanded for this purpose.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author, Date Entered: Aisin Automotive Casting, LLC. v. Heather McCowan; WCB No. 201700297; Alvey; Entered 5/4/2018.
Facts: This is a case full of confusing medical history, incomplete and non-specific findings of fact by the ALJ, and some legal issues we don’t usually see. The WCB opinion is significant in terms of its findings and conclusions more so than the summary of the evidence itself, since it vacates and orders specific findings on virtually every issue.
McGowan sustained low back injuries in 2006 for which she did not file a claim. This required surgery, and she continued to take pain medication for the injury. She later filed a claim (2013-01278) alleging bilateral CTS due to repetitive work activities manifesting on May 29, 2013.
In that claim she testified her left shoulder problems began in December, 2015, treating with Dr. Margaret Napolitano until January, 2016. Napolitano also treated her for bilateral CTS releases, bilateral revision CTS releases, and bilateral cubital tunnel release.
In a June 27, 2016 opinion, the ALJ relied on Dr. Jared Madden’s opinions and awarded PPD based on 40% (bilateral CTS/median nerve compression, bilateral cubital tunnel syndrome/ulnar nerve compression), increased by the 3 multiplier, in the amount of $437.73 per week, commencing on May 29, 2013.
Approximately 8 months after that opinion, McGowan filed a Form 101 on February 21, 2017, alleging injuries to “multiple body parts” due to her repetitive work activities with Aisin, and provided an injury date of August 9, 2016. She then amended her claim to allege a specific left shoulder injury occurring in March, 2016. (Before the opinion).
When ordered to specify the body parts she alleged injury to, McGowan stated “disc herniation to the lumbar spine and a collapse of the lumbar disc; recurrent carpal tunnel syndrome, bilateral rupture of the bicep tendons; bilateral tear of the rotator cuff and upper extremity problems.” Aisin filed a special answer asserting the affirmative defense of failure to join claims pursuant to KRS 342.270.
McGowan testified her left shoulder problems began in early 2015, and she advised her superiors. This was not a specific event. In March 2016 she tore her left bicep tendon. As conditions worsened, a left shoulder MRI in August, 2016 revealed a rotator cuff tear and a ruptured bicep. Dr. Coy performed surgery on the shoulder, but could not reattach the bicep.
Regarding her low back, McGowan confirmed the surgery in 2006, and immediate pain in 2014 pushing a basket. Fusion was recommended. Her low back and leg symptoms have worsened since 2014. At the hearing she attributed her current symptoms to her work activities at Aisin.
McGowan filed Dr. Coy who began treating the shoulder in August, 2016, and indicated that the problems had begun approximately one year earlier. He performed the surgery above.
McGowan filed Dr. Steven Autry who diagnosed all of the above complaints, and attributed everything to cumulative trauma, noting the history of repetitive activities, and opined that the symptoms had been asymptomatic, dormant, and non-disabling, but were aroused into a disabling condition by her employment, and assessed 41% WPI total.
Aisin filed Dr. Phillip Corbett, who testified the underlying impingement problems were not work-related. The shoulder and bicep was a traumatic event, regardless of whether it was 2013 or 2016. He assigned 2% to the left shoulder, and 10% to the back, related to the 2006 surgery.
The ALJ relied on McGowan’s credible testimony, and, Dr. Autry, that the cumulative trauma injuries manifested on April 12, 2017 (Autry’s examination date). An award of PTD was entered, commencing August 9, 2016.
Aisin’s petition for reconsideration requested additional findings on virtually every issue.
Procedural History: Aisin appeals from an Award of permanent total disability (PTD) and medical benefits. Aisin argues several issues, all of which give rise to the Order Vacating and Remanding, including: Failure to join claims, lack of notice, failure to award a credit, failure to make findings of cumulative trauma versus traumatic injury.
Issues: 1.) Did the ALJ provide a sufficient analysis of the nature of the low back and shoulder injuries?
2.) Did the ALJ err in failing to address the issue of joinder of claims?
3.) Was Aisin entitled to findings on whether it was entitled to a credit pursuant to KRS 342.730(2) for a previous award?
Holding: 1.) No
2.) Yes
3.) Yes
Reasoning: 1.) There was conflicting evidence whether these conditions resulted from cumulative trauma or a specific event. This analysis is necessary to determine an analysis involving notice and statute of limitations. The pleadings indicated both a CT injury and traumatic event on the shoulder. The same applies to the low back. Further discussion and findings are mandated.
On remand, the ALJ was directed to make a specific determination regarding whether McGowan’s alleged low back and left shoulder conditions resulted from cumulative or acute trauma. Only then can the notice issue be resolved.
2.) At her April, 2016 hearing, McGowan discussed her left shoulder and low back. No records were tendered pre-April, 2016 This is remanded for the ALJ for additional findings of fact addressing whether the low back and left shoulder causes of action had accrued and were known, or should reasonably be known, to McGowan during the pendency of Claim No. 2013-01278.
KRS 342.270 (2) provides, “When the application is filed by the employee or during the pendency of that claim, he or she shall join all causes of action against the named employer which have accrued and which are known, to him or her.” Failure to join all accrued causes of action results in such claims being barred as waived by the employee. The burden is on the worker to join all causes of action.
3.) KRS 342.730 (2) provides that the period of any income benefits payable under this section on account of any injury shall be reduced by the period of income benefits paid or payable under this chapter on account of a prior injury if income benefits in both cases are for disability of the same member or function, or different parts of the same member or function, and the income benefits payable on account of the subsequent disability in whole or in part would duplicate the income benefits payable on account of the pre-existing disability.
McGowan sustained bilateral upper extremity injuries, manifesting on May 29, 2013, for which she was awarded benefits. The ALJ now finds McGowan sustained subsequent additional injuries, including injuries to her bilateral upper extremities, rendering her PTD. Because this claim involves successive compensable injuries, the concept of “excess disability” applies.
The ALJ had failed to award a credit for the prior award which resulted in McGowan receiving more than a PTD rate, which amounted to $981.37 per week.
Disposition: Vacating in Part & Remanding
ALJ: Hon. Jonathan R. Weatherby

Case Name, Citation, Author: Charles McIntosh (Deceased) & Ernest McIntosh (Administrator) v. Fulton Heating and Air, Uninsured Employers’ Fund; WCB No. 201601942; Alvey; Entered 3/23/2018
Facts: This is a going and coming case. McIntosh was killed in a MVA while transporting tools and co-workers in the course and scope of his employment for Fulton. Since records did not reveal any WC insurance on the date of the MVA, the UEF was added as a party.
McIntosh would meet his crew, and carpool to the work site. His brother believed he was on the clock for Fulton while driving the employees, and that Fulton paid him gas money. A friend testified that McIntosh was not paid by Fulton to drive.
Fulton testified that McIntosh was not on the clock until he got to the shop location, and that carpooling was not required, but was economical for the employees.
Another co-worker testified that McIntosh drove because his truck was more economical, and the other employees gave him gas money. On the date of the accident, the other employees met McIntosh, and he was driving to the shop location.
At the BRC the employer stipulated he was an employee, even though hired as “contract” labor. The issue preserved for determination was whether the accident was work related and occurred within the course and scope of his employment.
The ALJ found that there was no benefit to the employer in this carpooling arrangement, even though he knew about it and that therefore there was no exception to the “going and coming” rule.
No petition for reconsideration was filed.
Procedural History: McIntosh appeals from the Opinion and Order dismissing the claim against Fulton and the UEF arguing that the finding that McIntosh was not injured in the course and scope of his employment was not supported by substantial evidence.
Issues: Was the finding by the ALJ that this MVA occurred while on the way to work, and not an exception to the “going and coming” rule, supported by substantial evidence?
Holding: Yes
Reasoning: There are several exceptions to this rule including the “service to the employer” exception as set forth in Receuver Construction v. Rogers. Generally injuries occurring while travelling to and from work are not deemed to arise out of and in the course of employment.
The exception to this rule requires a weighing of the facts particular to a specific claim. Whether the action is or is not a benefit to the employer is a finding of fact and will not be disturbed on appeal if supported by evidence of probative value.
No contrary result is compelled.
Disposition: Affirming
ALJ: Hon. Roland Case

Case Name, Citation, Author: Ky. Transportation Cabinet v. Russell Watters; WCB No. 201700296; Rechter; Entered 5/4/2018
Facts: Watters was a heavy equipment operator, with a CDL, who was struck in the head and fell, sustaining a head injury. An MRI revealed extensive bilateral dural venous thrombosis with no seizure activity. A CT scan indicated extensive dual sinus thrombosis.
Dr. Jessica Lee of UK Neuroscience Institute examined Watters and diagnosed cerebral venous sinus thrombosis with a history of traumatic brain injury. She informed Watters that Kentucky law requires him to be seizure free for three months before driving a personal vehicle, and for one year before driving commercially.  Watters performed 6 weeks of light duty work, and when that ran out he used his accumulated sick leave to remain off work until his CDL license restrictions were lifted. He was otherwise released to full duty without restrictions.
By the time of the final hearing, the CDL restrictions were lifted and he had returned to full duty for about a month, doing “exactly” the same job as before the injury.
Dr. Steven Autry performed an IME and diagnosed traumatic closed head injury with subsequent cerebral venous thrombosis, and assigned 7%, with residual headaches and anxiety post-injury. No restrictions were given, although in the same report he indicated Watters “lacks the physical capacity to return to work in the type of employment and job description performed at the time they ceased working.” He was aware that Watters had returned to work full time without restrictions.
Dr. Joseph Zerga conducted an IME and diagnosed a superior sinus thrombosis, possibly with a seizure, which he attributed to the work injury. There were no clinical objective findings, and no permanent impairment or restrictions.
The ALJ relied upon Autry’s rating of 7% as well as his opinion Watters does not retain the physical capacity to return to his pre-injury employment, and thus enhanced the award by the three multiplier. He did not offer any analysis of the fact that Watters had already returned to work without restrictions. 
Procedural History: KTC appeals from an award of PPD (enhanced by the three multiplier), TTD, and medical benefits, arguing that the ALJ erred in enhancing Watters’ income benefits, and that his findings regarding enhancement are not supported by substantial evidence.
Issues: Did the ALJ err in enhancing Watters’ benefits by the three multiplier? Did the evidence compel a finding Watters retains the physical capacity to return to his prior employment, and thus, no Fawbush analysis was necessary?
Holding: Yes
Reasoning: In determining whether the three multiplier applies, the relevant question is simply whether the claimant has returned to his pre-injury work.
The evidence compels a determination Watters has returned to his pre-injury work. He testified that he performs “exactly” the same work. He has been released from his CDL restrictions, no accommodations are necessary, and he testified that he will be able to continue working in his current position indefinitely.
There was no other evidence to support the conclusion Watters lacks the current capacity to return to his pre-injury work, particularly when he has already returned to his pre-injury work without restrictions or accommodations.
No Fawbush analysis is required. Watters does remain entitled to enhanced benefits pursuant to KRS 342.730 (1) (c) 2 during any period of cessation of that employment at the same or greater wages for any reason, with or without cause, except where Watters’ conduct resulting in the cessation is shown to have been due to “an intentional, deliberate action with reckless disregard of the consequences either to himself or another.
Disposition: Affirming in Part, Reversing in Part, and Remanding.
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Heather Morgan v. Bluegrass Oakwood Inc; WCB No. 201491253; Entered 5/4/2018.
Facts: Morgan alleges a 2/17/2014 injury to her neck when she was struck on the side of her neck by a resident of Bluegrass Oakwood.
Following the entry of an interlocutory order for a surgery and TTD benefits Morgan amended her claim to include injuries on 6/14/2015 and 4/19/2016.
Relying on the opinion of Dr. El-Kalliny, the ALJ found Morgan retained a 28% impairment rating as a result of the 2/17/2014 work injury, and found in paragraphs 10, 14, 15, and 16 of the findings of fact and conclusions of law that Morgan did not retain the ability to return to the same type of work. However, the ALJ also found the “2” multiplier applicable pursuant to KRS 342.730 (1) (c) 2.
In an order on reconsideration, the ALJ refused to change his ruling on the application of the 2 multiplier, and then failed to address the 2 additional dates for which Morgan sought TTD. 
Procedural History: Morgan seeks review of an award of 28%, enhanced by the two multiplier, and not the application of the three multiplier; and, further, the ALJ failed to adequately address her entitlement to additional TTD benefits to two additional time periods-6/17/2014 through 7/31/2014, and from 6/14/2015 through 9/30/2015.
Issues: 1.) Did the ALJ err in failing to conduct a Fawbush analysis?
2.) Did the ALJ err when he failed to address the 2 additional periods of time for which Morgan sought TTD?
Holding: 1.) Yes
2.) Yes
Reasoning: 1.) Unquestionably, the ALJ found the three multiplier was applicable, and further found Morgan had returned to work earning the same or greater wages, thus causing the two to be applicable. Consequently, an analysis under Fawbush is mandated. Where both the 2 and the 3 are applicable the ALJ is authorized to determine which provision is more appropriate for the facts.
Here, the ALJ failed to determine, pursuant to Fawbush, whether Morgan is unlikely to be able to continue earning a wage that equals the wage at the time of the injury the indefinite future based on the factors set forth in Adams v. Pike County Board of Education, 141 S. W. 3d 387  (Ky. App. 2004).
2.) TTD benefits were terminated 6/17/2014 based on Dr. Sheridan’s opinion dated July 1, 2014.  However, Morgan came under the care of Dr. El-Kalliny on 7/2/2014 who took her off work that day and kept her off until 9/2/2104. Morgan seeks benefits from 6/17/2014 thru 7/31/2104, the day before she returned to work.
Morgan then worked until her second injury on 6/14/2015 at which time she was taken off work. She received no benefits until 10/1/2015, the date of her surgery. She asked for benefits during this “gap”.
On remand, the ALJ was directed to make an analysis under Fawbush as to whether the 2 or 3 was appropriate, and, to make a decision resolving the issue of payment of TTD benefits as above.
Disposition: Vacating in Part and Remanding.
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Ford Motor Company v. Ryan Banks; WCB No. 201694963; Alvey; Entered 4/27/2018.
Facts: Banks filed a claim for an injured right shoulder that occurred on 1/13/2016, which is undisputed, as was treatment, including surgeries.
Medical treatment, ratings, etc were not issues, and were not discussed.
Post-injury wage records were introduced at the hearing. In its brief to the ALJ Ford attached a spreadsheet setting forth its calculation of post-injury AWW based upon the wage records introduced at the hearing. In an order on reconsideration, the ALJ stated that the spreadsheet constituted additional evidence and struck it from the record. The ALJ also calculated post-injury AWW calculations which he claimed were sufficient to trigger the two multiplier.
Procedural History: Ford appeals from an award of TTD, PPD, and medical benefits for a right shoulder injury sustained by Banks on 1/13/2016. Ford argues the ALJ abused his discretion when he struck portion of its brief from the record, and also, that he incorrectly calculated Banks’ post injury AWW.
Issues: 1) Was the exclusion of the spreadsheet attached to the brief, a calculation of the evidence of record, an abuse of discretion? 
2) Were the post-injury wages for AWW properly calculated when the same criteria for computing the pre-injury wages was not used?
Holding: 1) Yes
2) No
Reasoning: 1) The spreadsheet was not evidence. It was merely a calculation based upon the evidence of record. Whether the information was attached as a spreadsheet or whether it was set forth as a summary in the brief, it did not constitute evidence. The ALJ’s order was vacated.
2) The principle remains that the post-injury wages should be calculated in the same manner as pre-injury wages. In pre-injury calculations, bonuses and overtime wages were not used. They may not be used for calculating post-injury wages.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Chris Davis

Case Name, Citation, Author: Armstrong Coal Company v. Brian Piper; WCB No. 201458536; Stivers; Entered 5/4/2018.
Facts: Piper alleges injuries to his back in the course and scope of his employment when a cable hit him in the head and knocked him 10 feet to the floor.
The impairment ratings and any pre-existing conditions are the issue here.
Piper introduced Dr. Benjamin Burkett who indicated that Piper sustained an 80% exacerbation of a pre-existing condition. He thought Piper at a 10-13%, possibly 20-23%, but he was not a specialist in occupational medicine and referred further questions concerning ratings to a specialist in ratings.
Piper also introduced an IME of Dr. James Butler, who, after an exam and review of the medical records assigned a DRE III, 20-23%,
Armstrong introduced the IME of Dr. Michael Best. He assigned 20%, 13% pre-existing active and 7% related to the injury. He wanted to review more of the previous records, and indicated more testing may be necessary.
The ALJ awarded 20% WPI with 80% due to the work injury of May 1, 2015, finding that both Drs. Butler and Best would have a total WPI of 20%, and, the opinion of Dr. Burkett for the 80% being an exacerbation of a pre-existing condition. The final result was a 16% impairment (80% x 20%).
Procedural History: Armstrong appeals from an award of TTD, PPD, and medical benefits for the exacerbation of a pre-existing active lumbar condition. Armstrong asserts the ALJ erred in assigning a 16% permanent impairment rating to the 5/1/2014 injury.
Issues: Was the 16% WPI erroneous, and independently calculated by the ALJ without basis?
Holding: Yes
Reasoning: Dr. Burkett simply said “80% exacerbation of preexisting condition”, without explanation. It is too vague to determine if this meant pre-existing active condition, or to serve as a basis for the ALJ to calculate her own impairment rating. Dr. Burkett offered no explanation, and the confusion is further heightened by the fact that he assessed 10-13% without attributing any of it to a pre-existing condition.
The ALJ’s calculation of impairment is not only incompatible with the Guides, and this calculation does not represent an “80% exacerbation of [a] pre-existing condition.”
On remand, the ALJ was not to rely on Dr. Burkett’s vague language in determining an impairment, and, instead, shall rely upon one of the three ratings in the record.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author: Michael R. Plumley v. Kroger, Inc.; 2017-SC-000083-WC; Minton; Rendered 4/26/2018; TO BE PUBLISHED.
Facts: We brought you this case previously out of the COA. 
Over the course of the years Plumley had 4 work-related back injuries. This appeal relates to the 3 most recent.
The first injury in 1998 resulted in a discectomy at L4-5. His claim settled for 10%, with restrictions.
The second injury occurred in 2006, resulting in a central disc protrusion at L3-4. He RTW with no new restrictions.
The third injury was in 2009 with a second discectomy and laminotomy at L3-4. The 1998 restrictions remained in effect.
The fourth injury occurred in 2011 and a recurrent L3-4 herniation. Following surgery he RTW with the same restrictions from 1998.
Plumley had timely filed a claim for the 2006, 2009, and 2011 injuries but the proceedings were held in abeyance when he began experiencing the worsening symptoms in 2011. While these were pending in abeyance he underwent a fusion at L3-4. Afterwards, Drs. Frank Burke and Greg Snider evaluated Plumley and assigned 34% and 22% respectively, apportioning them over the different injuries.
The ALJ adopted Dr. Snider’s conclusions and assigned a 3% WPI to the 2006 injury, 6% WPI to the 2009 injury, and 13% WPI to the 2011 injury for a total of 22%.
Procedural History: Plumley sustained 3 work-related low back injuries while in the employ of Kroger. Inter alia, the ALJ awarded three tandem benefit awards by finding 3 separate distinct injuries rather than a single-injury with a single-benefit award. The WCB and the COA both affirmed. This appeal followed.
Issues: 1.) Did the ALJ err when relying on the Medical Report of Dr. Snider who evaluated Plumley under the ROM method?
2.) Did the ALJ err when relying on Dr. Snider’s WPI calculations?
3.) Did the ALJ err when he relied upon Dr. Snider’s report which did not contain the term “foot drop” for the purpose of calculating benefits?
4.) Did the ALJ err by not awarding Plumley three separate awards for the three injuries he suffered?
5.) Did the ALJ err in his use of modifier multipliers?
Holding: 1.) No.
2.) No
3.) No
4.) No
5.) No
Reasoning: 1.) Plumley argues that the Guides provide that in certain circumstances both the ROM method and the DRE method must both be computed, and the larger one used. Dr. Snider did not perform DRE. Plumley wants strict compliance with the Guides, so this is reversible error. The Brasch-Berry case would suggest reversible error. However, an unpublished decision by the SC in Ross v. Threave Main Stud held this is a medical question and that the ALJ is free to choose the expert upon who to rely. So we have strict compliance versus general conformity to the Guides.
“To be grounded in the Guides is not to require a strict adherence to the Guides, but rather a general conformity to them.” (pg. 11) Dr. Snider’s evaluation is based upon and in conformity with the Guides.
The proper interpretation of the Guides and the proper assessment of an impairment rating are medical questions.
2.) The ALJ’s reliance on certain medical reports and opinions over others is entitled to considerable deference. The ALJ reasonably relied upon and adopted the findings of Dr. Snider, as his methodology and conclusions are grounded in the Guides, shown by the various sections of the Guides. His report references the sections used and explains the rationale for doing so.
3.) There is no reversible error in using a physician’s report that uses terminology different from that which the Claimant would use to describe essentially the same condition. Snider’s evaluation referenced and evaluation of all “peripheral nerve involvement”.
4.) Plumley argues his claim represents a material departure from the existing case law because his claim involves successive injuries to the same body part and a ROM rating whereas existing case law involves separate injuries to different body parts and a DRE rating. His three successive work injuries to his L3-4 disc fit the current definition of “injury” in KRS 342.0011 (1) and can be considered one injury. The ALJ should have awarded 22% as a single award.
The Court holds: “As a matter of pure statutory interpretation, we think that a series of traumatic events for the purposes of defining injury cannot be interpreted to consider separate and successive injuries to the same body part as one, total injury for the purpose of calculating an award, as Plumley would have us hold. We want to stress that this interpretation shall have no bearing on the interpretation of cumulative trauma in Kentucky precedent.”
5.) Plumley wanted the “3” instead of the “1”.
It was undisputed, however, that after the 2006 injury, no doctor that evaluated Plumley imposed any greater work restrictions consistently adhering to only the restrictions imposed after the 1998 injury He kept the same job responsibilities throughout.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Our Lady of the Way Hospital v. Marie Miller; No. 2017-CA-001328-WC; Combs; Rendered 4/27/2018; Not To Be Published.
Facts: Miller had a low back injury in 1998, settling her case in 2000 for 5%, and reserving medicals. The diagnosis was degenerative disc disease and low back strain.
Our Lady filed a MFD contesting medical treatment rendered by Dr. Suzanne Ford-including prescription medication. In support, Our Lady filed the U/R report of Dr. Koss, and also the report of Dr. Ellen Ballard, who had performed an IME. Miller filed Dr. Ford.
In her Opinion and Order, the ALJ determined that Tramadol, Gabapentin, Flector patches, and Metaxalone were not reasonable and necessary.
The WCB affirmed in part, however reversed the ALJ’s decision that the Tramadol was non-compensable. The WCB explained that while Dr. Koss’ opinion  provided substantial evidence to support the decision  with regard to the other medications, he offered no opinion as to the Tramadol.
Procedural History: Our Lady appeals from an opinion of the WCB in this post-award medical fee dispute. Our Lady argues the WCB erred in reversing the determination of the ALJ that Tramadol was a non-compensable medication treatment for the injury at issue. The COA reverses the WCB solely as to the holding concerning Tramadol, reinstating the order and opinion of the ALJ.
Issues: Did the WCB substitute its opinion for that of the ALJ in reversing and remanding the ALJ?
Holding: Yes
Reasoning: The ALJ found that the opinions of Drs. Koss and Ballard were more credible and better reasoned than that of Dr. Ford. Dr. Ford had not supported her opinion with any medical findings or rationale. The WCB had focused on 2 answers to questions, and reweighed the evidence instead of reviewing it.
Disposition: Affirming in Part, Reversing in Part, and Remanding
ALJ: Hon. Monica Rice-Smith
COA Panel: Acree, Combs, and Maze

Case Name, Citation, Author: Ford Motor Company v. Donald Jobe; 2017-SC-000010-WC; Wright; Rendered 4/26/2018; TO BE PUBLISHED.
Facts: This is another of those cases we reported on at the WCB and COA level. In 2012 Jobe sustained a work-related right hip injury. Ford accepted this, but refused to accept a low back claim due to the hip injury, disputing a causal connection. The ALJ found the hip injury was the proximate cause of the back injury and awarded a 14% PPD.
Jobe was treated by a variety of physicians for the hip and back pain. A hip specialist said the pain was caused by the back, and eventually, Dr. Guarnaschelli, who originally agreed with this assessment performed a low back surgery. Without relief, Jobe then underwent a hip surgery which substantially improved his condition.
Before his last return to work, Jobe underwent an IME with Dr. James Farrage who opined the low back condition was work related. Degenerative changes in the back which were dormant prior to the work injury but were brought into disabling reality by the work incident. The ALJ explained that the treating physician thought the lumbar surgery was necessary following conservative treatment and there was a reasonable expectation the procedure would address the hip pain.
Procedural History: The ALJ found that Jobe’s work-related hip injury was a proximate cause of his low-back impairment. Due to the causal relationship, the ALJ awarded Jobe benefits regarding his back. The ALJ awarded 14% PPD, TTD, and medical benefits. Ford appealed to the WCB disputing the finding that Jobe’s low back impairment had a causal connection to the work-related injury. The WCB affirmed the ALJ, holding there was substantial evidence. The COA then affirmed. Ford now appeals to the SC as a matter of right.
Issues: Did the ALJ make findings of fact based on substantial evidence?
Holding: Yes.
Reasoning: The ALJ found that Jobe underwent the low back surgery because the doctors were unable to accurately diagnose his work related condition. The only reason he underwent the back surgery was the difficulty making the hip diagnosis. The ALJ made quite explicit findings.
While Ford argued this was a causation issue, and thus a question of law, the SC said this was a decision to be made by the fact finder. 
Jobe followed his doctor’s recommended course of treatment for his hip pain when he underwent back surgery. This back surgery caused the back impairment.
Disposition: Affirmed
ALJ: Hon. John B. Coleman

Case Name, Citation, Author: Floyd County Board of Education v. James Slone; WCB No. 201565728; Stivers; Entered 2/9/2018
Facts: Slone alleges a low back injury at work on 9/29/2015. He completed the 11th grade, has a GED, no vocational or specialized training, and was born on 7/28/1955. He worked in central maintenance for Floyd County. He has not worked since the date of injury.
Previous back problems had resolved prior to this injury. Following the injury, Dr. Tibbs referred him to PT, without relief, injections, and medications. He is retired and receives SSD. Slone filed Dr. Owen’s report. Owen, a primary care physician, in a June 26, 2016 examination, diagnosed L5-S1 radiculopathy, and noted a herniation on the MRI. It was work-related. Dr. Owen assigned a 13%, using DRE II, but found 2% prior active, netting 11%. He went on to state that Slone was not at MMI, and did require ongoing treatment, and, and, as a result stated ‘the impairment rating may be premature.” He admittedly did not review any medical records prior to 9/29/2015. He admitted the rating was thus not pursuant to the Guides due to the recommendation of additional testing and treatment, and was thus premature.
Dr. David Jenkinson evaluated for Floyd County. He was at MMI, no more treatment was required, and he assessed 0%. In his deposition, he noted this was nothing more than a back strain which had resolved.
Dr. Henry Tutt saw Slone for Floyd County. He thought the injury was nothing more than a transient myofascial injury. There was nothing wrong, and he was “grossly exaggerating his complaints.” Tutt believed that Dr. Owen was not qualified to make the determinations he provided. Slone may have qualified for 5% prior to the injury.
In awarding benefits to the Claimant, the ALJ specifically relied on the opinion of Dr. Owen for the Plaintiff.
Procedural History: Floyd County appeals from the award dated 9/14/2017 finding Slone permanently totally disabled, and awarding TTD, PTD, and medical benefits for a low back injury dated 9/29/2015 on 3 grounds: 1. The determination that Slone sustained an injury is not supported by substantial evidence; 2. MMI, TTD, credit for TTD, the 11% rating, and the finding of PTD are not supported by the evidence; 3. The  11% rating by Dr. James Owen, and relied upon by the ALJ, is not based on the AMA Guides.
Issues: 1.) Was the finding that Slone sustained an injury supported by substantial evidence?
2.) Did the ALJ erroneously rely upon Dr. Owen’s opinion in finding MMI was attained on June 27, 2016, the date of Dr. Owen’s examination and when he assessed an impairment rating?
Holding: 1.) Yes
2.) Yes
Reasoning: 1.) Slone’s testimony, if believed, established he sustained a significant injury. Further the Form 107 of Dr. Owen indicated Slone’s symptoms were caused by the work injury. Significantly, both Drs. Jenkinson and Tutt concluded Slone sustained a work injury. The ALJ’s opinion set forth the basic facts, including the lay and medical testimony, upon which she relied.
2.) It should be noted first that the WCB noted that Floyd County followed the proper method for impeaching a physician’s methodology pursuant to the AMA Guides which is through the cross-examination of that physician or the opinion of another medical expert. In this case, Floyd County did both.
Dr. Owen’s report and his deposition testimony establish Slone had not attained MMI at the time of Dr. Owen’s examination, and he erred in assessing an impairment rating then as it was not in accordance with the AMA Guides. Thus, the ALJ could not rely on the impairment rating assessed, even though the ALJ believed his assessment was in accordance with the Guides, since Slone was not at MMI.
As a result, the award of PTD is not supported by Dr. Owen’s impairment rating, the ALJ could not find Slone was at MMI on the date Dr. Owen examined him, and the award of TTD and PTD must be vacated and remanded for additional findings.
The WCB refused however to direct a decision finding Slone is entitled to a limited finding of TTD only.
Even though Dr. Owen has the only impairment rating in the record, his finding is not fatal to the claim. This is because Dr. Jenkinson had also seen Slone, and while not issuing an impairment rating, did find him at MMI on April 5, 2 ½ months before Dr. Owen. If the ALJ determines Slone at MMI on that date, the rating would thus have been assessed by Dr. Owen would be assessed after Slone reached MMI.
Stated simply, if the ALJ does choose to use Jenkinson for the date of MMI, this rehabilitates the rating of Dr. Owen. If she chooses not to, there is no evidence to establish MMI prior to Owen’s date, and any award is TTD only.
In a dissent, WCB Member Alvey argued that Dr. Owen’s rating could not be used on remand since it was not based on the AMA Guides because he had indicated Slone was not at MMI when he assessed it.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: East Bernstadt Cooperage, Inc. v. Linda Darlene Stigall; No. 201676290; Alvey; Entered 4/20/2018.
Facts: Stigall alleged injury to multiple body parts occurring on July 11, 2016. She continues to work for East Bernstadt.
After her glove became entangled in a drill she was using in the barrel manufacturing process, Stigall was seen by Dr. Jean Maurice Page. She underwent right wrist surgery consisting of the installation of a plate and screws. Stigall remains in her former job, without restrictions, and expresses concern over her ability to perform all of her duties for a full 8 hour day. She received a pay increase, but works less overtime since the injury.
Stigall filed the IME of Dr. Jared Madden who diagnosed status post right displaced intra-articular radial fracture with open reduction and internal fixation, status post ulnar styloid fracture, ulnar deviation restriction, wrist flexion and extension restrictions, and chronic pain syndrome due to trauma. He assigned 14% and stated she did not have the capacity to return to her former employment, and Stigall was given substantial restrictions.
East Bernstadt filed the discharge papers from PT which showed Stigall was released to RTW without restrictions. It also filed a questionnaire from Dr. Page which indicated no restrictions.
East then filed an IME of Dr. Margaret Napolitano, a hand surgeon, who assessed 7%, and noted Stigall’s RTW.
Relying on Dr. Madden, the ALJ awarded a 14% PPD, and after considering the restrictions, found Stigall could not return to former employment and applied the three multiplier.
Procedural History: East Bernstadt appeals from an award of TTD, PPD (enhanced), and medicals for a work-related right wrist injury.
Issues: 1.) Was the analysis regarding Stigall’s ability to RTW at her former job duties sufficient?
2.) Was the appropriate analysis to be used in applying the three multiplier contained in KRS 342.730 (1) (c) 1 performed?
Holding: 1.) No
2.) No
Reasoning: 1.) The ALJ failed to indicate specifically what job duties that Stigall could no longer perform so there was no opportunity for meaningful review of the ALJ’s findings regarding physical capacity to return to work. The case was remanded for these findings without any direction for a particular result.
2.) Because Stigall in fact RTW, at apparently the same or greater wages in the same department, the ALJ was required to perform a Fawbush analysis.
Fawbush articulated several factors an ALJ can consider when determining whether an injured employee is likely to be able to continue earning the same or greater wage for the indefinite future. These factors include the Claimant’s lack of physical ability to return to the type of work that he or she performed, whether the post-injury work is done out of necessity, whether the post-injury work is performed outside of medical restrictions, and if the post-injury work is possible only when the injured worker takes more narcotic pain medicine than prescribed.
The award pertaining to the multiplier was thus vacated pending the ALJ’s decision under “2”.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Jimmy Dunn v Blue Diamond Coal Company; Nos. 201700182 & 201700181; Rechter; Entered 4/20/2018
Facts: Dunn worked in the coal industry for 29 years as an equipment operator. The job was difficult, involving awkward positions and seats that vibrated. He was laid off on 11/19/2015 and has not worked since. He suffers from constant dull low back pain.
Dunn treated with Dr. Makut Sharma. An MRI revealed DDD at L4, L5, and S1. He offered no opinion as to causation.
Dr. Stephen Autry did an IME diagnosing aggravation of cervical spondylosis and lumbar spondylosis with radiculopathy, attributed these to work in the mines, and assigned 6%.
Dr. Leyton Childers diagnosed lumbalgia with radiculopathy, inter alia and attributed it all to work in the mines.
Dr. Daniel Primm performed an IME and found Dunn’s spine was normal for his age, and assigned 0%. He thought Dr. Autry’s tests were incomplete.
Even though the ALJ found Dunn to be credible, she relied on Dr. Primm and dismissed the claim.
Procedural History: Dunn appeals from the Order dismissing his claim for cumulative trauma injuries to the low back, left hip, neck, and right wrist.
Issues: Did substantial evidence support the ALJ?
Holding: Yes
Reasoning: The ALJ explained her reliance on Dr. Primm’s evaluation which revealed no pathology for some of the body parts involved. This was within her discretion.
Disposition: Affirmed
ALJ: Hon. Christina Hajjar

Case Name, Citation, Author: James A. Wilkerson v. Kimball International, Inc.; WCB No. 201285251; Rechter; Entered 3/9/2018.
Facts: Following a lifting incident which occurred on April 4, 2012, Wilkerson was diagnosed by Dr. Robert Byrd with a low back strain, with no complaints of knee pain. An MRI revealed a mild disc bulging at L3-4, with no evidence of nerve root compression, and no additional prominence in the bulge when compared to a 2006 MRI.
A referral to a neurosurgeon resulted in a diagnosis of a S1 radiculopathy with no objective evidence. Later, Wilkerson claimed to experience a distinct pop in his knee while performing squats at home as part of his physical therapy. He was then seen by Dr. Charles Milem who diagnose a medial meniscus tear and performed a medial meniscectomy. He RTW without restrictions, but still complaining of low back pain.
Eventually, after a non-operative treatment program, he was referred to Dr. David Rouben who diagnosed disc disease of the L5-S1 segment and performed decompression and fusion surgery.
Dr. John Johnson performed a revision of the fusion surgery, and stated he did not think the original surgery was reasonable, necessary, or work-related. Dr. Thomas Loeb performed an IME, and found a 5% for a low back strain, but found no objective parameters to support any type of invasive procedure. He also opined the left knee injury was not work-related.
Dr. Robert Jacob performed an IME. He diagnosed a strain with no impairment. There were no indications for fusion surgery. The knee injury is not work-related.
Dr. James Farrage did an IME. The surgery was related to work. He assigned 32%, which was 23% for the back and 20% for the knee. 10% for the knee was pre-existing.
Noting the surgery by Rouben was done unbeknownst to the WC carrier, and after UR denial, and that no other doctor thought surgery was necessary, the ALJ did not find the surgery reasonable or necessary, and in fact, it had worsened Wilkerson’s pain.
Procedural History: Wilkerson appeals from an award of TTD, PPD, and medical benefits for a low back strain injury but finding his knee condition and lumbar back surgeries not causally related to the work injury.
Issues: 1.) Were the findings regarding the knee condition clearly erroneous, arbitrary, or characterized by an abuse of discretion?
2.) Did the evidence compel a finding that the back surgery was work-related, reasonable, and necessary?
Holding: 1.) No
2.) No
Reasoning: 1.) First, Wilkerson failed to file a petition for reconsideration, thereby accepting the factual findings. The initial treatment records reveal no complaints regarding the knee, and Dr. Loeb thought the knee injury was a spontaneous injury related to his prior knee surgery. Importantly, the ALJ found Wilkerson was not credible concerning the occurrence of his knee condition.
2.) Again, no petition for reconsideration was filed. Wilkerson cannot now argue that given his limited education and ongoing difficulties that he believed it was necessary for him to undergo the surgery recommended by Rouben. No additional findings for this issue, nor the findings concerning the other physicians was ever requested. The evidence from the other physicians could be relied upon by the ALJ.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Lonnie Hensley v. Pine Branch Mining LLC; WCB No. 201600609; Rechter; Entered 2/23/2018.
Facts: Hensley filed this claim alleging an October 23, 2015 injury to his low back due to continuous jarring and jolting in his work activities over 43 years.
He also filed a claim for a hearing loss. Hensley worked 5 twelve-hour shifts each week running a front end loader. On 10/23/15 he ceased working due to pain. Dr. Frank Burke first informed him of a work-related cumulative trauma injury in March, 2016.
Dr. Burke performed an IME on March 24, 2016. He noted marked increase in back pain up to one year before Hensley ceased working. He noted the job duties and work that constantly exposed Hensley to excessive vertical jolting and side-to-side motion, and lack of padding in the operator chair. Burke assigned a 7%, and did not believe Hensley could return to his former work.
Dr. Daniel Primm performed an IME and diagnosed mild mechanical age related low back pain with no evidence of radiculopathy. The work did not produce a ratable injury or permanent impairment rating. Hensley could return to work.
The ALJ found a work injury and then awarded PTD, noting that Hensley was not likely to find and continue to perform sustained employment. In the finding the ALJ referenced the hearing loss, and ordered benefits to continue until Hensley qualified for old age Social Security benefits.
Procedural History: Hensley and Pine Branch appeal from an award finding Hensley PTD. Hensley challenges the constitutionality of the age limitation imposed by KRS 342.730(4). Pine Branch argues the lack of sufficient findings concerning whether Hensley sustained  a work-relate injury, and erred in determining the commencement date of his income benefits, and, that it may not be held liable for any additional combined occupational effect resulting from hearing loss.
Issues: 1.) Is the age limitation as set forth in KRS 342.730(4) constitutional?
2.) Was the opinion of Dr. Burke detailed enough so as to explain how heavy equipment operation causes cumulative trauma injury?
3.) Did the ALJ violate KRS 342.7305 which provides that hearing loss shall not be considered in determining whether a worker totally disabled.
4.) Did the ALJ err in finding the onset of benefits was the date Hensley informed the employer he could no longer work instead of the date the physician informed him of the date of his cumulative trauma?
Holding: 1.) No
2.) Yes
3.) No
4.) No
Reasoning: 1.) This has already been ruled upon in Parker v. Webster County Coal. Hensley is entitled to a lifetime award of permanent total disability, subject to the limitations in KRS 342.730 (4) as that section provided prior to its amendment in 1996.
2.) Dr. Burke noted heavy equipment operation exposed Hensley to constant excessive vertical jolting, side-to-side motion, and that his poorly padded seat contributed to the damage to his spine. Further, Dr. Burke stated the duration and number of hours of exposure were not comparable to any activity in the regular day-to-day world or most of the working world.
3.) There was sufficient evidence upon which the ALJ could reasonably conclude Hensley is not capable of performing work on a regular and sustained basis in a competitive economy due to the effects of his low back injury. Dr. Burke’s testimony supported Hensley’s own testimony. The WCB was unable to conclude the ALJ’s brief and single reference to Hensley’s hearing loss constituted “consideration” within the meaning of KRS 342.730 (1) (a).
4.) The ALJ enjoys the discretion to rely on Hensley’s testimony to determine his disability commenced on the date he ceased working. The manifestation date for purposes of notice does not necessarily correspond with the onset of disability.
Disposition: Affirming in Part, Reversing in Part, and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Bernard Foltz v. McDaniel Concrete; WCB No. 201562133; Alvey; Entered 3/9/2018.
Facts: Foltz, who was 64, worked as a heavy equipment operator when he sustained a left shoulder injury (non-dominant). He had worked several years for McDaniel, and prior to that had been self-employed.
Dr. Islam performed a left arthroscopic extensive debridement, sub-acromial decompression, and a left sub-pectoral biceps tenodesis on 11/20/2015. He assigned a 4% impairment rating and restricted Foltz from lifting with his left arm.
Dr. David Crawford diagnosed left shoulder biceps tendonitis/biceps instability and left shoulder strain. He assessed 4% and restricted Foltz to no lifting greater than 20 pounds and no lifting above shoulder level with the left shoulder.
Foltz RTW, missing only when there was no work available, and then drawing unemployment. He retired and receives Social Security. After his RTW following surgery, and until retirement, Foltz worked without restrictions. The employer was not aware of any restrictions that had been given to him.
When retiring, Foltz offered to work about 60 hours per month, part time. This was a predetermined amount that would not affect his social security.
In seeking PTD, Foltz noted his 11th grade education, his age, no other specialized or vocational training except his CDL license, and his struggles in school with reading, writing, and arithmetic. He denied that he could perform any type of work as he was unable to use his left arm.
The report of VE Dr. Ralph Crystal was filed 6 days after expiration of proof time. Dr. Crystal noted in his report that based on education and past work experience, Foltz was capable of performing a wide range of jobs that could be performed within the restrictions assigned to Foltz.
The ALJ adopted the 4% ratings, found Foltz could not perform his pre-injury duties, and enhanced his award by 3.8, finding that Foltz was not PTD.
In so finding, the ALJ was impressed by Foltz’s presence and demeanor, and did not believe age was a factor. Neither doctor had found Foltz to be permanently disabled, nor was there a need for ongoing treatment. Notably, Foltz had indicated a willingness work 60 hours per month, without any indication that he had to work with restrictions. As the ALJ noted, Foltz had offered to work limited hours so as not to affect his social security, not due to shoulder limitations.
Procedural History: Foltz appeals from an award of TTD, PPD, and medical benefits for a work-related shoulder injury, arguing the ALJ erred in limiting his benefits under KRS 342.730 (4), in light of Parker v. Webster County, by allowing the late filing of a vocational report of Dr. Ralph Crystal, and because the ALJ ignored the uncontroverted testimony concerning his academic abilities, educational level, physical ability and work skills in finding that he is not permanently totally disabled.
Issues: 1.) Did the ALJ abuse her discretion by allowing the untimely report of VE Dr. Crystal?
2.) Did the ALJ perform an adequate analysis concerning PTD?
Holding: 1.) No
2.) Yes
Reasoning: 1.) Even though Foltz argued that the ALJ ignored his testimony, and based her decision not to award PTD based on Dr. Crystal’s report, any such error is harmless because the ALJ did not rely upon Dr. Crystal’s analysis in her opinion. The ALJ has broad discretion with regard to evidence. This did not reach “abuse of discretion” status.
2.) The ALJ did an in depth analysis concerning all the factors set forth above. The ALJ noted his age, his ability to own his own business, lack of restrictions, the doctors not stating he was disabled, a minimal rating, and his offer to RTW for limited hours, not due to limitations, but due to social security.
What is especially interesting about this case is the Claimant’s age (64) and education (11th grade), and still not a finding of PTD.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author: Caruso Logistics v. James M. Turner; WCB No. 201697209; Stivers; Entered 3/9/2018.
Facts: Turner alleged injuries to his right shoulder right side of neck and right upper extremity in a work-related incident. The claim was bifurcated on the issue of RSD (CRPS), and whether he was entitled to additional medical treatment and TTD.
In an Interlocutory Order, the ALJ noted that the physicians all found only some of the factors listed in the Guides to confirm the diagnosis of CRPS, but not the required 8. The ALJ did however find the Claimant credible, noted a Kentucky Supreme Court case that stated the criteria were only a diagnostic recommendation, and ordered the UME (see Tokico v. Kelly, 281 S.W.3d 771 (Ky. 2009)).
Following the exam, the Evaluator, Dr. Craig Roberts diagnosed a CRPS Type 1 and a right shoulder rotator cuff tear. He assessed a 36% rating.
The ALJ relied upon Roberts’ report, and noted it was in conformity with other physicians who had also diagnosed CRPS. Caruso claimed that the referral was improper, relying on T. J. Maxx v. Blagg, 274 S.W. 3d 436 (Ky. 2008). However, the ALJ distinguished the T. J. Maxx case which found such a referral was improper because it was made AFTER the case was taken under submission, and not, as here, when an Interlocutory Order, under any circumstance, was going to be entered.
The important distinguishing issue here is that the Supreme Court in TJ Maxx held that a post hearing UE was improper since no regulation anticipates that additional proof will be taken after a claim has been heard, briefed and taken under submission. Here, as stated above, the record remained open for the submission of additional evidence and the final BRC and hearing had not occurred when the UME was ordered. Under any circumstances, an Interlocutory order was going to be entered. 
Procedural History: Caruso appeals from an award of TTD, PPD, and medical benefits for a work-related right upper extremity injury. Caruso argues that the CALJ abused his discretion when he ordered a University Medical Examination, and the 36% WPI assessed by UME Dr. Craig Roberts is “legally invalid” and cannot be relied upon to support an award of PPD benefits.
Issues: 1.) Was a referral to a UME proper when it was made prior to the entry of an Interlocutory Order, and when none of the treating doctors, all of whom had diagnosed CRPS, but none of whom had found at least 8 of the 11 factors listed in the Guides?
2.) Was the 36% rating of Dr. Roberts “legally invalid”?
Holding: 1.) Yes.
2.) No
Reasoning: 1.) Here, as opposed to the T. J. Maxx case, the record had remained open for the submission of additional evidence and the final BRC and hearing had not occurred. An Interlocutory Order is neither final nor appealable since it does not operate to terminate the action or finally decide all issues. An ALJ may reverse a dispositive interlocutory factual finding on the merits of the case in the event of new evidence, fraud, or mistake. This is also supported by an unreported case of Deidre Street v. Goody’s Family Clothing, No. 2010-SC-000578-WC (2011).
2.) The ALJ has the authority to pick and choose whom and what to believe from among the medical testimony in the record. The Guides provide objective standards for the “estimating” of permanent impairment ratings by the physicians. The CALJ could appropriately assume Roberts’ expertise in utilizing the Guides. He is not required to look behind an impairment rating or sift through the Guides. There was no obvious misapplication of the Guides, and, notably, NO PHYSICIAN QUESTIONED THE ACCURACY OF ROBERTS’ RATING based on the Guides.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: D & L Mining v. Jimmy Hensley; No. 2016-CA-001166-WC; Nickell; Rendered March 30, 2018; To Be Published.
Facts: Hensley spent his entire 32 year work career as a heavy equipment operator. He worked for D & L for a period of 5 weeks before filing his hearing loss claim. He last worked for D & L December 18, 2014.
In 2013, prior to working with D & L Hensley underwent an audiogram in anticipation of filing a hearing loss workers compensation claim against a previous employer. That report (12/5/2013) indicated a diagnosis of moderate to severe binaural sensorineural hearing loss, and recommended hearing aids. Hensley admitted to the testing, but his unrefuted testimony was that he denied receiving a copy of the report or having any knowledge of the audiogram results.
Dr. Barbara Eisenmenger performed a university medical evaluation at the request of the DWC. She diagnosed a pattern of hearing loss compatible with long-term exposure to hazardous occupational noise, with no pre-existing active impairment. She assigned a 17% WPI, and recommended hearing aids and wearing protection devices when exposed to loud noises. She was unaware of the 2013 audiogram.
Dr. Lisa Koch performed an IME, and included results of both Hensley’s audiograms. She opined that he had an 18% WPI based on the 2013 audiogram, and no additional hearing loss due to his 2014 employment.
The ALJ entered an award based on the 17%, and found Hensley unable to return to work because wearing medically-recommended hearing protection would create safety issues for himself and others.
Procedural History: D & L appeals from a WCB decision affirming the opinion, order, and award of the ALJ finding Hensley suffered a 17% WPI resulting in an award  of PPD for hearing loss and was entitled to the three times multiplier.
Issues: 1.) Did the ALJ err in awarding Hensley PPD benefits when he had the same level of hearing loss prior to his employment with D & L?
2.) Did the ALJ err in finding Hensley could not return to the same type of work and enhancing the PPD benefits by the three multiplier?
Holding: 1.) No
2) No
Reasoning: 1.) KRS 342.7305(4) establishes a rebuttable presumption of work-related causation of hearing loss and liability. It applies upon proof of: (1) a pattern of hearing loss compatible with that caused by hazardous noise exposure, and (2) an employee’s demonstration of repetitive exposure to hazardous noise in the workplace. If established and unrebutted liability is exclusively assigned to the employer with whom the employee was last injuriously exposed to hazardous noise.
The medical records clearly established a pattern of hearing loss consistent with long term repetitive exposure to hazardous workplace noise. Hensley is not required to prove his last employment caused a measureable hearing loss, not does it require proof of a minimum period of exposure.
D & L offered no proof to overcome the statutory rebuttable presumption that he was not exposed while working at D & L, or, that he could have worn ear protection there.
Further, KRS 342.7305 (4) imposes liability exclusively on the employer with whom the claimant was last injuriously exposed to hazardous noise, preventing apportionment to prior employers.
2.) There was no evidence that Hensley returned to work after leaving D & L. Also, Dr. Eisenmenger stated that Hensley’s work restrictions should include wearing hearing protection devices when working around hazardous workplace noise. Hensley testified, however, and unrebutted, he was unable to wear protective hearing devices while operating equipment at D & L Mining or in similar work because doing so created an unreasonable risk of harm.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller
COA Panel: Combs, Dixon, and Nickell

Case Name, Citation, Author: James A. Wilkerson v. Kimball International, Inc.; WCB No. 201285251; Rechter; Entered 3/9/2018.
Facts: Following a lifting incident which occurred on April 4, 2012, Wilkerson was diagnosed by Dr. Robert Byrd with a low back strain, with no complaints of knee pain. An MRI revealed a mild disc bulging at L3-4, with no evidence of nerve root compression, and no additional prominence in the bulge when compared to a 2006 MRI.
A referral to a neurosurgeon resulted in a diagnosis of a S1 radiculopathy with no objective evidence. Later, Wilkerson claimed to experience a distinct pop in his knee while performing squats at home as part of his physical therapy. He was then seen by Dr. Charles Milem who diagnose a medial meniscus tear and performed a medial meniscectomy. He RTW without restrictions, but still complaining of low back pain.
Eventually, after a non-operative treatment program, he was referred to Dr. David Rouben who diagnosed disc disease of the L5-S1 segment and performed decompression and fusion surgery.
Dr. John Johnson performed a revision of the fusion surgery, and stated he did not think the original surgery was reasonable, necessary, or work-related. Dr. Thomas Loeb performed an IME, and found a 5% for a low back strain, but found no objective parameters to support any type of invasive procedure. He also opined the left knee injury was not work-related.
Dr. Robert Jacob performed an IME. He diagnosed a strain with no impairment. There were no indications for fusion surgery. The knee injury is not work-related.
Dr. James Farrage did an IME. The surgery was related to work. He assigned 32%, which was 23% for the back and 20% for the knee. 10% for the knee was pre-existing.
Noting the surgery by Rouben was done unbeknownst to the WC carrier, and after UR denial, and that no other doctor thought surgery was necessary, the ALJ did not find the surgery reasonable or necessary, and in fact, it had worsened Wilkerson’s pain.
Procedural History: Wilkerson appeals from an award of TTD, PPD, and medical benefits for a low back strain injury but finding his knee condition and lumbar back surgeries not causally related to the work injury.
Issues: 1.) Were the findings regarding the knee condition clearly erroneous, arbitrary, or characterized by an abuse of discretion?
2.) Did the evidence compel a finding that the back surgery was work-related, reasonable, and necessary?
Holding: 1.) No
2.) No
Reasoning: 1.) First, Wilkerson failed to file a petition for reconsideration, thereby accepting the factual findings. The initial treatment records reveal no complaints regarding the knee, and Dr. Loeb thought the knee injury was a spontaneous injury related to his prior knee surgery. Importantly, the ALJ found Wilkerson was not credible concerning the occurrence of his knee condition.
2.) Again, no petition for reconsideration was filed. Wilkerson cannot now argue that given his limited education and ongoing difficulties that he believed it was necessary for him to undergo the surgery recommended by Rouben. No additional findings for this issue, nor the findings concerning the other physicians was ever requested. The evidence from the other physicians could be relied upon by the ALJ.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Jeff Miller v. Tema Isenmann, Inc; 2016-SC-001544; Wright; Rendered 3/22/2018; TO BE PUBLISHED
Facts: We brought you this once before. Briefly, Miller worked for TEMA as a purchasing agent. Though not involved in production, his door opened into the plant, and his job duties required him to enter the production floor daily to check inventory.
MOCA, scientifically proven to cause cancer in animals and highly suspected of being a human carcinogen was used in the plant, albeit, on a somewhat limited basis. Prior to the implementation of a closed system, MOCA was added to a production process manually via an older open-air machine. TEMA monitored workers for MOCA exposure by testing production workers, but not office personnel for exposure every three months. There was disagreement over how many workers tested positive, but the SCt said it didn’t matter-it was undisputed that some number of employees tested positive for MOCA exposure.
Shortly after retirement, Miller was diagnosed with bladder cancer.
The ALJ entered an award. After the first appeal, the WCB ordered a university evaluation to be performed. After ordering the evaluation, the ALJ was informed there were no university evaluators available, and the evaluation was not possible.
The ALJ then ordered the parties to agree on an evaluator, and they couldn’t; so he ordered them to submit a list of three names each. Miller did, although none were oncologists. The ALJ chose Dr. David Jackson who then stated he had no opinion as to the cause of Miller’s cancer. Again, the ALJ entered an award, and again the WCB reversed. This time it held that the Commissioner was required to choose a physician to perform the evaluation. The Commissioner responded that no doctor agreed to participate.
The ALJ again entered an award, and, again, TEMA appealed. This time the WCB affirmed, the WCB rejecting TEMA’s argument that evidence did not support the ALJ’s decision.
TEMA appealed to the COA and the COA reversed and remanded for the ALJ to enter an order requiring the Commissioner to produce a university evaluation, or to find an independent and qualified medical expert either by recommendation of the University of Louisville or the University of Kentucky or by independent search for a qualified university medical evaluator from outside those two universities. This decision is brought to the Supreme Court on appeal by Miller.
Procedural History: In this workplace carcinogen case, the WCB reversed the ALJ award twice. On the third appeal of the ALJ award, the WCB affirmed the award, however, the COA reversed. This appeal followed.
Here, the Supreme Court reversed the COA, and reinstated the ALJ’s Opinion and Award.
Issues: 1.) Was there substantial evidence to uphold the ALJ’s finding that Miller was exposed to MOCA at the TEMA production facility and that this exposure resulted in an occupational disease?
2.) Is an ALJ mandated to refer a claimant for a University Medical Evaluation in an occupational disease case? Is the ALJ mandated to utilize such an evaluation in deciding each case?
Holding: 1.) Yes
2.) No, to each.
Reasoning: 1.) The statute requires only that the exposure could independently cause the disease-not that it did in fact cause the disease. The testimony from both Miller and the plant manager revealed that MOCA exposure was not just a potential reality for employees. Some employees did in fact test positive for actual exposure to MOCA during Miller’s employment. This amounted to objective proof that during Miller’s tenure there existed conditions through which workers were exposed to MOCA.
Dr. Rinehart, Miller’s treating oncologist stated that he had diagnosed Miller with bladder cancer, and there is a greater than 50 percent chance that long-term exposure to MOCA was the cause of that cancer. He was the only physician to render an opinion in the case who was an oncologist.
2.) The Court did an excellent job of construing the statute in question, KRS 342.315 (1), concerning University Evaluations.
The plain reading of the text makes clear that the ALJ has the discretion to order a university evaluation. The legislature mandates that the commissioner contract with these two medical schools to provide ALJs with a source of unbiased medical opinions. Nowhere in the statue does it mandate that the ALJ must utilize such an evaluation in deciding each case-much less that the ALJ must do so when the evaluation is unavailable.
The ALJ is within his discretion to rule for the other party as long as he specifies his reasons for doing so and such ruling is supported by substantial evidence. The fact that presumption can be overcome and is not dispositive of the case clearly demonstrates that a claim can be decided on evidence that contradicts a university evaluation.
With regards to the regulations, KAR 25:010 (11) states that a claim shall be referred, not that the claim is barred if the universities are unable to provide an evaluation.
Disposition: Reversing
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author:  Herman Napier v. Enterprise Mining Company et al; No. 2014-CA-001473-WC; Nickell; Rendered 3/23/2018: TO BE PUBLISHED
Facts: It is not necessary to repeat and evaluate all of the medical evidence in these three cases. Suffice it to say, in 2 of the cases, a 4% WPI was assigned as a result of hearing loss, and 5% in the other. In each case, the symptoms and resulting limitations/restrictions were set forth, all similar in nature, and in one, Dr. Brose testified that the treatment limitations, limitations, and occupational restrictions would have been the same regardless of whether he had qualified for a 5% or an 8% impairment rating. Hearing restrictions significantly limits or precludes working in underground and surface mining operations, road construction, manufacturing, and other hazardous jobs due to the necessity for communication and attentiveness to workplace dangers.
None of the three Claimants were working on the dates of the awards. Napier had retired, and had two other injury claims pending. Hatfield had continued working until he was laid off. Feltner had retired due to restrictions from other injuries.
All of the Claimants were blocked from receiving awards of PPD income benefits because their ratings were below 8%, and, are further prevented from filing a civil action seeking damages to compensate for lost earning capacity due to the exclusive remedy provision of KRS 342.690(1), and are therefore left with no remedy.
Procedural History: These three consolidated appeals arise from similar facts and procedural histories. They present a common equal protection challenge to KRS 342.7305 (2), which authorizes compensation for benefits shall not be payable where the binaural hearing impairment converted to impairment of the whole person results in impairment of less than eight percent (8%) pursuant to the AMA Guides.
Issues: Does KRS 342.7305(2) violate equal protection guarantees established in the Fourteenth Amendment to the United States Constitution and Sections 1,2, and 3 of the Kentucky Constitution?
Holding: Yes.
Reasoning: The analysis to challenge the constitutional equal protection is three pronged. First, does the statute establish differing treatment for hearing loss claimants with less than an 8% rating than is provided for other traumatic injury and hearing loss claimants; second, whether hearing loss claimants with less than a 8% rating are in all relevant respects the same as other traumatic injury and hearing loss claimants; third, whether any differing treatment of similarly situated claimants is rationally related to achieving a legitimate state interest.
In these respects, the Court held:
(1) “…we hold by imposing an impairment rating threshold of 8% or greater for income benefits, KRS 342.7305(2) treats hearing loss claimants differently from all other traumatically injured claimants authorized to receive PPD income benefits by satisfying the minimal impairment rating threshold required by KRS 342.730 (1) (b). Further, we hold KRS 342.7305(2) treats hearing loss claimants with an impairment rating of less than 8% differently than all other hearing loss claimants qualifying for impairment ratings of 8% or higher, effectively depriving the former of any relief while granting the latter fair compensation under KRS 342.7305 (1) (b) and (c) commensurate with all other traumatically injured claimants.”
2.) “We hold claimants suffering traumatic ear injuries resulting in hearing loss severe enough to qualify for assignment of an impairment rating under the AMA Guides are in all relevant and consequential respects similarly situated to all other claimants suffering traumatic injuries to other body parts, organ systems and organ functions resulting in symptoms severe enough for an assignment of an impairment rating under the AMA Guides. Further, among the two subclasses of hearing loss claimants, lay and medical proof evince the same or similar functional losses, diminution of daily activities, physical and social limitations, medical treatment modalities and occupational restrictions regardless of the degree of impairment.”
In short, as the Court noted “hearing loss is hearing loss is hearing loss.” 
3.) “…the heightened impairment threshold enacted in KRS 342.705(2) is founded on a “purely artificial, arbitrary, illusory or fictitious” distinction bearing no “proper relation to the purpose of the statute,” and results in an “unreasonable” and “unjust” classification. By denying PPD income benefits to those failing to reach its heightened impairment rating threshold, the statute improperly affords governmentally sanctioned separate and unequal treatment to a subclass of hearing loss claimants vis-à-vis all other traumatically injured hearing loss claimants who are granted fair compensation under KRS 342.730 (1) (b) and )c).”
Disposition: Vacating and Remanding
ALJ: Hon. Grant Roark
COA Panel: Kramer, Chief Judge, Clayton, and Nickell.

Case Name, Citation, Author: Ray Pickett v. Ford Motor Company; WCB No. 201501910; Stivers; Entered 2/16/2018.
Facts: Facts pertinent to the issues in this case are limited.
The ALJ entered an award to Pickett for injuries sustained. This award was subject to a limitation in the duration of benefits awarded to Pickett because of his age under KRS 342.730 (4). Parker v. Webster County Coal, declaring that portion of the statute limiting benefits unconstitutional, had been decided by the Supreme Court, but the decision had not yet become final.
Further, the ALJ denied TTD benefits for a period of time that Pickett had returned to work performing menial tasks. These included cleaning the lunchroom, sorting nuts, and wiping items down. This position was not a union bid job, and it was not a position normally filled by any employee. During this time he had not yet reached MMI. In the decision, the ALJ simply noted that he was not persuaded that extraordinary circumstances existed justifying the payment of TTD benefits while Pickett was working.
Procedural History: Pickett appeals from an award of PPD benefits which limited the duration of his award due to age, and for the ALJ’s failure to award TTD benefits while working light duty. 
Ford appeals claiming the ALJ erred by rendering an award of PPD before Parker v. Webster Coal became final.
Issues: 1.) Is Parker v. Webster County to be applied in this case, and do the tier down provisions of the 1994 version of the statute apply?
2.) Did the ALJ make sufficient findings with regard to the denial of TTD benefits during the period of time that Pickett was performing menial tasks on light duty?
Holding: 1.) Yes
2.) No
Reasoning: 1.) Income benefits are to be calculated pursuant to the tier-down formula set forth in KRS 342.730 (4). The case is to be remanded for a calculation consistent with this opinion.
2.) The ALJ must provide more than a glimpse into his analytical process. This analysis must include a four-prong discussion which addresses:
a. whether the employee has reached MMI;
b. whether the employee has been released to “customary employment” as defined by Trane and the cases preceding it;
c. whether the employee has actually returned to customary employment;
d. and, if so, whether “extraordinary circumstances” warrant the payment of TTD benefits in addition to the workers’ regular wages.
Disposition: Vacating and Remanding
ALJ: Hon. Roland Case

Case Name, Citation, Author: Marcus Miller v. Letcher Fire and Rescue; WCB No. 201681441; Alvey (Rechter dissents); Entered 2/9/2018.
Facts: Miller sustained a left upper extremity injury lowering a patient on a cot to transfer him to a wheelchair. After treatment Dr. Kennedy assessed a 33% rating with restrictions. Dr. Daniel Primm, on behalf of Letcher Fire evaluated Miller and found no sign of permanency, but did find signs of symptom magnification. He assigned no impairment and no restrictions.
The ALJ determined Miller sustained a work-related left lateral epicondylitis injury to the left elbow, and found that Dr. Primm had explained that Dr. Kennedy had not properly utilized the AMA Guides in reaching his impairment.
The ALJ declined Miller’s request for trigger point injections, dismissed his claim with prejudice, however, he made no determination regarding medical benefits except to state Miller needed no medical at this time.
Procedural History: Miller appeals from a decision finding left elbow epicondylitis due to a work-related accident, but awarding no PPD benefits.
Issues: 1.) Was there substantial evidence to support the ALJ decision?
2.) Does the statute require proof of an impairment rating in order to receive the right to future medical benefits?
Holding: 1.) Yes
2.) No
Reasoning: 1.) Simply put, this was within the province of the ALJ and he more than adequately explained his decision and reasoning.
2.) The WCB, sua sponte, has the right to reach issues, even if not preserved, on appeal. On remand the ALJ must make a determination regarding whether Miller is entitled to medical benefits, including his entitlement of future medical benefits.
Disposition: Affirming in Part, Vacating in Part, and Remanding
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Landmark Media Publishing LLC d/b/a Standard Publishing Company v. Mark Branham, et al; 2017-SC-000209-WC; Memorandum Opinion; Rendered 2/15/2018. Not To Be Published.
Facts: This is the third time we have brought you this case, with the same results. It appears the SCT has now laid this to rest.
The facts are simple, and we will abbreviate them. 
This was a hernia case. Dr. Warren Bilkey found the injury and treatment to be work-related. Dr. Ellen Ballard originally agreed with him in her first report, then, in a second report, changed her mind, without explanation.
The ALJ relied on Bilkey, and, Ballard’s first report, ignoring the second one. The ALJ stated that he “was simply unable to find any basis for her (Ballard) change of opinion and will therefore go with her initial finding and opinion…”
Procedural History: Landmark appeals from an award of medical expenses to Branham. This award was unanimously affirmed by the WCB, and, in turn, the COA unanimously affirmed the WCB. The unanimous affirmation by the Supreme Court completes the trifecta with a perfect 14-0 slate, including the ALJ.
Issues: Did the ALJ abuse his discretion in ignoring the second opinion of Dr. Ballard, which was a change of heart from the first opinion?
Holding: No
Reasoning: The Supreme Court was short and succinct: “And although the second IME doctor, Dr. Ballard, subsequently changed her mind, Standard has failed to provide any additional evidence in the record supporting Dr. Ballard’s second opinion.” The ALJ properly considered Branham’s own testimony concerning his injury and symptoms.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: Hawkeye Construction v. Thomas Miller; WCB No. 201583347; Stivers; Entered 2/16/2018.
Facts: The fact situation in this regard, as noted by the WCB, is unusual. The facts and procedural history in this case are somewhat confusing, and the WCB goes through much greater detail than necessary in order to arrive at its decision, but it has to make a reviewable record.
The crux of this case is the assignment of the impairment rating, and was it pursuant to the Guides.
Dr. Muffly set forth the results of Miller’s examination which included ROM measurements for both legs including those for the left foot, right ankle, knees, and hips. He also noted the spine was tender. He then assessed a 12% impairment rating pursuant to the Guides with detailed findings of measurements and reference to tables.
Dr. Gregory Snyder then performed an IME, also with measurements and references to the tables. His rating was much higher, 8% WPI for the right leg, and 14% for the left leg, for a combined 21%.
He explained that the ratings should have been more similar, and noted what he thought was Miller’s consistency of effort for his testing. Snider also noted that Dr. Muffly’s office performs accurate and adequate measurements. He did state however that Dr. Muffly’s office had not correctly combined the lower extremity ratings as well as the lumbar spine. The correct rating assigned by Dr. Muffly should have been 14%. The ALJ then adopted this rating for his award of PPD.
Procedural History: Hawkeye appeals from an award of PPD (enhanced by 3), TTD, and medical benefits. The appeal also concerned the award of 12% interest on back due benefits.
Issues: Was the impairment rating calculated by Dr. Snider, using Dr. Muffly’s measurements instead of his own, assessed pursuant to AMA Guides?
Holding: Yes
Reasoning: Although rarely seen, nothing prohibits a doctor from concluding his ROM measurements were not accurate and then calculating an impairment rating based on another doctor’s ROM measurements. Here, using the Guides, Snider recalculated Muffly’s impairment rating based on Muffly’s measurements. The 14% rating was calculated pursuant to the Guides, and was thus substantial evidence. Significantly, Hawkeye did not contend the 14% calculated by Dr. Snyder was not in accordance with the Guides.
The case was remanded on the calculation of interest as it was not in conformity with the law.
Disposition: Affirmed in Part, Vacated in Part, Remanded
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Ricky Gill v. Special Metals; WCB No. 201684522; Stivers; Entered 2/23/2018.
Facts: The facts of this case are relatively simple, and only a few are pertinent. Gill’s date of birth is March 19, 1954. The ALJ awarded benefits in the form of TTD, PPD, and medicals. KRS 342.730 (4), providing for an early termination of benefits at retirement age under the SSA was applied.
Procedural History: Gill appeals from an award of TTD, PPD, and medical benefits for his left knee injury, arguing that because of the Parker case, this case needed to be remanded to the ALJ for an amended award of benefits, and, that because the issue of constitutionality of the benefits was raised in a timely petition for reconsideration he is entitled to have the limitation on the duration of his benefits removed.
Special Metals argues that the issue of constitutionality was not preserved, and that Gill failed to comply with KRD 418.075 by serving the Attorney General of his intent to raise the issue of constitutionality. Also, the ruling in Parker is not retroactive.
Issues: 1.) Was the issue of constitutionality of KRS 342.730 (4) properly before the WCB?
Holding: 1.) Yes
Reasoning: 1.) A the time of the BRC there was nothing which held that the statute was unconstitutional. 11 days after the ALJ’s award, the Supreme Court ruled that section unconstitutional. Gill then filed his petition pointing out the limitation on benefits was unconstitutional. He was not required to notify the AG since the section was already declared unconstitutional.
Further, the award was not final as Gill had filed the Notice of Appeal, and the WCB had jurisdiction to address the effect of Parker.
The ALJ was directed to enter an award in accordance with the tier down version of KRS 342.730 (4) enacted in 1994. Interest was to be paid at the new rates mandated by statute.
Disposition: Vacating in Part and Remanding
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author: Ann Taylor, Inc. v. James McDowell; No. 2016-CA-001265-WC; Thompson; Rendered 1/26/2018; Not To Be Published.
Facts: McDowell alleges injury loading a semi-trailer, consistently reporting that he hit his right elbow on the conveyor belt while trying to avoid falling boxes. His testimony was inconsistent regarding how his shoulder was injured.
Essentially, McDowell reported his elbow injury, with pain up to the shoulder to his supervisor and HR, and was sent for treatment to BaptistWorx.  He did not remember reporting specific pain in the shoulder, but was told it was stiff.
When seen by Dr. Frank Bonnarens, he told the doctor about pain up to the shoulder, but nothing more. After PT, he started having more problems with the shoulder, especially as the elbow improved. After 4 weeks of PT, he told Bonnarens, and was later diagnosed with a torn rotator cuff and had surgery. Until this had occurred, the medical records do not reflect any history of a shoulder injury.
Originally Bonnarens indicated the shoulder was not related to work, but later a clarified patient history caused him to change his mind. Bonnarens testified that the right shoulder surgery was related to his work history, but not consistent with a reconstruction of the accident.
Dr. Craig Roberts performed an IME and related the shoulder to the work injury.
Procedural History: Ann Taylor appeals from a WCB Opinion reversing in part, vacating in part, and remanding the ALJ opinion dismissing McDowell’s claim for a right shoulder injury on the basis that he did not give adequate notice of this injury to Ann Taylor and McDowell did not prove his work-related accident was the proximate cause of the injury.
Issues: Did the Claimant give adequate notice of his shoulder injury to the employer when the doctor first suspected the torn rotator cuff a month after the injury?
Holding: Yes
Reasoning: This delay was reasonable because McDowell had no reason to believe he had injured his shoulder until he was experiencing more serious symptoms. This is when Dr. Bonnarens first suspected the torn rotator cuff.
Further, the ALJ did not provide a sufficient explanation of the basis for his decision to enable adequate review.
When the WCB vacated and remanded for the ALJ to make factual findings as to causation, it did not constrain the ALJ from exercising independent judgment as fact-finder. On remand, the ALJ will have to write a new opinion and decide anew.
Disposition: Affirmed
ALJ: Hon. Steven Bolton
COA Panel: Maze, Taylor, and Thompson

Case Name, Citation, Author: Christopher Gregory v. A & G Tree Service; No. 2015-CA-000721-WC and No. 2015-CA-000839-WC; Nickell; Rendered 2/16/2018; TO BE PUBLISHED.
Facts: Gregory was injured in a MVA when a company truck he was riding in, driven by a supervisor, was involved in the MVA. Gregory alleges the supervisor had used marijuana 30 minutes before the accident, and he was driving too fast, and erratically.
The WCB found Dr. Warren Bilkey had assigned a 4% impairment for the right shoulder, but stated Gregory was not at MMI for the injury, as defined under the Guides, and Dr. Eiferman’s 6% for the right eye was not valid because the doctor failed to state the rating was based on the Guides. Further the driver’s actions could not be imputed to the employer because the employer had no reason to believe he would drive that way.
Procedural History: This appeal and cross-appeal come from a WCB decision affirming in part, vacating in part, and remanding an ALJ decision. The WCB vacated the finding that Gregory had a 45% PPD because the ALJ insufficiently set forth the facts relied on. In so doing, the WCB also vacated Dr. Warren Bilkey’s 4% for the shoulder and Dr. Eiferman’s 6% right eye impairment. The WCB affirmed the ALJ’s conclusion Gregory was not entitled to a “safety violation” benefit enhancement.
Gregory argues the WCB erred by vacating the 4% and 6% and by affirming the denial of the enhancement benefit. A & G claims the ALJ made sufficient finding to support the 45% award and the WCB erred in vacating the award.
Issues: 1.) Did the WCB correctly vacate and remand the 4% rating for the shoulder?
2.) Did the WCB properly vacate the 6% rating for the right eye?
3.) Did the WCB err in affirming the denial of the safety enhancement?
Should the finding of PPD be reinstated?
Holding: 1.) Yes
2.) Yes
3.) No
4.) No
Reasoning: 1.) The report clearly stated Gregory was not at MMI for the shoulder.
2.) The Doctor did not state the rating was based on the Guides. The COA saw no reason to reverse the WCB or to compel the adoption of a 15% rating for the eye by Dr. Ballard, which was adopted by Dr. Bilkey. There was no authority quoted that would have given the COA that authority, and the WCB has already ordered the ALJ to review the whole body impairment.
3.) There must be some intentional violation of a safety statute or regulation. The general duty clause of KRS 338.031 was not violated by intentionally driving in a reckless manner.
N.B. The COA here specifically did an analysis of the Supreme Court decisions in Lexington-Fayette Urban County Government v. Offutt, 11 S.W. 3d 598 (Ky. App. 2000) and Hornback v. Hardin Memorial Hospital, 411 S. W. 3d 220 (Ky. 2013).
Offutt and Hornback had an issue of one employee injuring another by disregarding safety issue. There are 4 mandatory factors set forth in these cases that must be met. Only 3 of the 4 were met here.
The four are:
A.) Is there a condition in the workplace which could cause an injury to an employee?
B.) Does the employer recognize the hazard?
C.) Is the hazard likely to cause death or serious physical harm?
D.) Is there a feasible means to eliminate or reduce the hazard?
Here, the COA found the first 3 present, but not the 4th, as A & G took reasonable precautions before allowing employees to drive company cars. As a result, a violation of KRS 338.031 could not be found.
4.) When the ALJ made the finding of PPD, and not PTD he did not state with specificity the evidence supporting his conclusion. The WCB had ruled it could not sufficiently review the claim without additional findings citing specific supporting evidence.
Disposition: Affirmed
ALJ: Hon. Douglas Gott
COA Panel: Dixon, Nickell, and Taylor

Case Name, Citation, Author: Jamie Groce v. VanMeter Contracting Inc.; 2017-SC-000225-WC; Venters; Rendered 2/15/18; TO BE PUBLISHED.
Facts: We brought you this case previously.
Briefly, Groce was severely injured when a retaining wall collapsed. As a result of an investigation, KOSHA issued 3 citations, but only one is relevant to this review. VanMeter was charged with violating a regulation entitled “General requirements for formwork”. In due course, VanMeter and KOSHA resolved the citation with a Stipulation and Settlement Agreement in which VanMeter “accepted responsibility” for all three violations, agreed they were serious, and paid a fine. That agreement contained the following language:
“[VanMeter’s] agreement as set forth hereinabove and its execution of this Settlement Agreement are not admissions by [VanMeter] of any violations of the Act or the standards or regulations promulgated there under nor admissions of [VanMeter] of the truth of any of the allegations or conclusions contained in the Citations or Complaint.”
Groce sought the 30% enhancement provided by KRS 342.165(1) because he alleged the employer failed to comply with a statute or regulation, and this included the violations asserted by KOSHA. The ALJ concluded that Groce had not presented sufficient evidence to prove the intentional violation of any safety statute or regulation. 
The WCB concluded that  the execution of the Agreement, the withdrawal of the contest of the citation, and paying a fine, was a conclusive judicial admission to the intentional violation, giving no weight to the plainly-stated disclaimer of any admissions.
Upon VanMeter’s appeal, the COA rejected the WCB’s analysis and reversed.
Procedural History: Groce sought an enhanced award alleging the accident was due at least in part to VanMeter’s violations of workplace safety. The ALJ rejected the enhancement but the WCB reversed. The COA reversed the WCB and reinstated the judgment of the ALJ. Groce now appeals.
Issues: Was the employer’s settlement of KOSHA citations dispositive of the KRS 342.165 (1) safety violation issue?
Holding: No.
Reasoning: Groce had the burden of proof in demonstrating that a safety violation had occurred so as to qualify for a safety violation benefit enhancement.
Importantly, the WCB disregarded a crucial element of the settlement agreement: the explicit provision in which KOSHA and VanMeter disclaim its effect as an admission to the alleged violation. This provision precludes the use of the agreement as a conclusive judicial admission of a safety violation.
Even without this language, the wording is not conclusive. Citing case law, the COA stated that an adjudicative determination by an administrative tribunal does not preclude litigation in another tribunal of the same or a related claim based on the same transaction if the scheme of remedies permits assertion of the second claim notwithstanding the adjudication of the first claim. This principle applies whether the issue is claim preclusion (res judicata) or issue preclusion (collateral estoppel).
Further, in this case, the ALJ expressly determined that VanMeter did not violate the safety rule in question.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author: Work4ce, Inc. v. Nicholas Plantaniotis; No. 2017-CA-000061-WC; Jones; Rendered 2/2/2018; Not To Be Published
Facts: We brought you this case last year as a WCB opinion. The COA has reversed and remanded. The medicals will not be referred to except as needed for the Court’s ruling.
Plantaniotis began working for Work4ce, a temporary employment agency, in June, 2012, and assigned to work at Toyota. In September, 2012 he began complaining of back and neck pain, attributed to his job duties. At the time, Work4ce was insured by KEMI. In July, 2014, Plantaniotis filed his claim alleging cumulative trauma injuries beginning in September, 2012.
Prior to the final hearing, Plantaniotis settled his claim with KEMI to settle any liability arising during its coverage. It was a full and final. The agreement specifically reserved his right to pursue his claim for the time period from 3/27/2013 until his employment ended in June, 2014. KESA’s coverage began 3/27/2013.
In his award, the ALJ found the opinion of Plantaniotis’ treating doctor to be persuasive, and found that he suffered a compensable injury, and, ignoring the parties’ stipulation, found that the cumulative trauma injury manifested itself on 3/26/2014, the date that Dr. Grefer diagnosed the injury as being work related. The effect of course was to place liability for the cumulative trauma injury on KESA for the entirety of the time at issue.
The WCB affirmed the ALJ’s decision. In this appeal, it should be noted that no brief was filed for Plantaniotis, and, as a result, the COA elected to accept Work4ce’s statement of the facts and issues as correct.
Procedural History: Work4ce, as insured by KESA, appeals from an opinion of the WCB affirming the ALJ’s finding as to the date of injury, which differed from the date of injury the parties stipulated to throughout the proceedings. The COA reverses and remands, relying on a recent Supreme Court case, Hale v. CDR Operations, 474 S. W. 3d 129 (Ky. 2015) which held that the ALJ was bound by the parties’ stipulation of fact as to the date of injury. 
Issues: If an ALJ disagrees with a stipulation, is it nonetheless binding because it is a fact agreed upon by the parties?
Holding: Yes
Reasoning: The record is undisputed that the parties stipulated during the BRC that the injury date was September, 2012. While the ALJ and the WCB may disagree with the stipulation, it is nonetheless binding because it is a fact agreed to by the parties.
Citing Hale, the ALJ was free to judge the credibility of witnesses and weigh conflicting evidence, the ALJ is “not free to disregard the date to which they agreed.”
Disposition: Reversing and Remanding
ALJ: Hon. Thomas Polites
COA Panel: Acree, Dixon, and Jones

Case Name, Citation, Author:  Marilyn Stone v. McDonald’s; WCB No. 201477263; Stivers; Entered 12/22/2017.
Facts: Stone alleges an injury to her right shoulder on 5/2/2104 when she caught a falling bucket of pickles.
Prior to her work at McDonald’s, Stone had been a nurse for 25 years. In her last position she had worked as a case manager, which was about 50% administrative. At McDonalds she worked as a prep cook, preparing foods in the morning to be served throughout the day.
Dr. Robert Moore performed rotator cuff surgery on 8/14/2014. In his report he listed significant restrictions for this woman who was age 57 on the date of injury, and age 60 on the date of the opinion. He assigned an U/E rating of 19%, which converted to 11% WPI.
Interestingly, no medical evidence was cited on behalf of the employer, apparently content with going with Dr. Moore’s rating and restrictions.
Procedural History: Stone appeals an award of TTD, PPD, and Medical benefits. Stone asserts the evidence compels a finding that she is permanently and totally disabled.
Issues: Did the evidence compel a finding that Stone was totally and permanently disabled?
Holding: No
Reasoning: The ALJ set forth a complete analysis on the issue of PTD, noting that while Stone was age 60, she had advanced education as a licensed practical nurse, in which during the latter part of her career she had worked as a case manager. Dr. Moore’s restrictions were not so extensive as to prevent work, and, significantly, he did not opine that she was permanently disabled. The ALJ set forth the basic facts upon which his conclusion was drawn so the parties were reasonably apprised of the basis of his decision.
Disposition: Affirmed
ALJ: Hon. John Coleman

Case Name, Citation, Author: Gwendolyn Pendergraft v. Corbin City Schools; WCB No. 201260107; Alvey; Entered 12/21/2017.
Facts: Pendergraft was kicked in the back of her right knee while walking down the hall at school. She had previously undergone a total right knee replacement as well as a low back surgery. She also suffers from MS. She originally focused on her right knee problem, unaware of her back problem.
While off work for the injuries she received no TTD benefits. She subsequently was awarded disability retirement benefits from the school system.
Pendergraft filed the report of Dr. David Muffley, who diagnosed right knee strain and acute lumbar strain. He assessed 5% to the knee and 3% to the lumbar spine, and determined she could not return to her prior job.
Pendergraft also submitted reports or records of treating physicians Drs. Turner, Jackson, Brooks, and Mountain Neurology, none of which addressed an impairment rating.
Corbin submitted Dr. Daniel Primm who saw no permanent injury due to the incident, but assigned an additional 3% based on subjective knee complaints coming after the injury.
Corbin also filed Dr. Brooks, as well as other treating medical records, which did not address the rating or work-relatedness.
Corbin filed Dr. Steven Wunder who found no permanent injury due to the incident.
The ALJ relied on Drs. Wunder and Primm and found no permanent injury, but more importantly found even no temporary injury.
Procedural History: Pendergraft appeals from an order denying her claim for both temporary and permanent injuries to her low back and right knee. Pendergraft appealed, arguing a contrary result was compelled.
Issues: Was a contrary result compelled when the ALJ dismissed Pendergraft’s claim for both temporary and permanent injury?
Holding: No as to permanent benefits, but yes as to temporary benefits resulting in the remand.
Reasoning: Pendergraft essentially asked the WCB to reweigh the evidence and substitute its opinion, which the WCB refused to do. The ALJ could rely on whoever’s reports he wanted. Relying on the charge of why the ALJ did not rely on Dr. Wunder more, as well as others, those arguments went to the weight of the evidence only. A contrary result was compelled however on the temporary benefits. Clearly an event had occurred, and Dr. Primm noted she had sustained lumbar and knee strains. Other doctors noted the findings of bruising and effusion. On remand the ALJ was directed to determine if Pendergraft was entitled to TTD benefits and medical benefits for the temporary injury. No result was directed.
Disposition: Affirming in Part, Reversing in Part, and Remanding.
ALJ: Hon. Jonathan R. Weatherby

Case Name, Citation, Author: Limb Walker Tree Service v. Donald Ovens; WCB No. 201578695; Stivers; Entered 12/2/2017.
Facts: This 18 page opinion was replete with a complete review of all of the medical evidence which was not germane to the main issues.
In short, the ALJ ordered PPD benefits beginning on 7/1/2015, with interest at the rate of 12% on all due and unpaid installments through June 28, 2017, and 6% on all unpaid and due installments on or after June 29, 2017. 
The ALJ further denied future acupuncture treatment since it was not requested or ordered by Ovens’ treating physician. Ovens had continued receiving the acupuncture treatments on his own without any doctor having ordered additional treatments.
Procedural History: Limb Walker appeals from an award for cervical, lumbar, and thoracic injuries, and for TTD, PPD, and medicals. Limb Walker contends that the award of all past due installments of PPD bearing interest at the rate of 12% from the date of injury through June 28, 2017, is error.
Ovens challenges the determination of the ALJ that he is not entitled to acupuncture treatment.
Issues: 1.) Should interest on any and all past due payments of PPD have been at the rate of 6%?
2.) Did the ALJ err by denying future acupuncture treatment for Ovens’ injuries?
Holding: 1.) No
2.) No
Reasoning: 1.) Limb Walker’s question was whether interest on past due benefits was to be calculated from the date of the injury, the date the claim was filed, or the date the judgment was entered. Citing the Supreme Court decision in Sweasy v. Wal-Mart Stores Inc., 295 S.W. 3d 835, (Ky. 2009) the compensable period for PPD begins on the date that impairment and disability arise, without regard to the date of MMI, the rating or the duration. Ovens’ disability began the date of injury, thus he is entitled to 12% through 6/28/2017, and 6% beginning on 6/29/2017. There was no indication the amendment was to have retroactive effect.
2.) There was nothing in the record to contradict the finding of the ALJ. While Dr. Bilkey noted that acupuncture could be worthwhile, he admitted the providers should supply a reassessment with respect to the goals for treatment. There was substantial evidence in the record to support the ALJ.
Interestingly, the WCB, sua sponte, vacated a portion of the ALJ’s decision which in effect suspended PPD payments for one day. It was an unintentional error, as the parties had stipulated TTD was paid through 2/8/2016. The order suspended them for one day. The remand was simply to correct the order.
Disposition: Affirming in Both Appeals, Vacating in Part, and Remanding
ALJ: Hon. Monica Rice-Smith

Case Name, Citation, Author: TG Kentucky v. Sheila Lane, Triple M Equipment, and Uninsured Employers’ Fund; WCB No. 201402240; Alvey; Entered 1/19/2018.
Facts: This case was bifurcated on the issues of up-the-ladder employment and whether Lane was an independent contractor. Medicals are not relevant here. Lane worked as a commercial cleaner for Triple M since 2014. Triple M was uninsured.
Triple M’s owner, Murphy, secured the jobs for Triple M. All jobs that Lane worked at were for TG, a factory manufacturing automotive parts for Toyota. Lane worked cleaning equipment, usually on weekends when the plant was shut down. Lane was ordered to clean paint from the smoke stacks with a hand scraper. She fell from an 18 foot ladder which had already been set up for her. She had not done this job before.
Lane had signed a form, not introduced, that she was a subcontractor. She was also given a Form 1099. TG was Triple M’s only client. Both TG and Triple M provided supplies.
Lane was asked to clean the louvers so they would open and close correctly, which they did not do due to paint buildup of many years.
TG hired several different contractors to perform various cleaning tasks, including cleaning fans, deep cleaning the paint line, and performing oven work. A representative testified that outside contractors were hired to perform maintenance work since “there is only a finite amount of time we can shut down the equipment. So you must accomplish many tasks at one time, and we simply do not have enough manpower to tackle them all at once.” 
The ALJ found that Lane was an employee of Triple M at the time of the injury, and the relationship of Triple M and TG was subcontractor and contractor, and, the task of cleaning the louvers was an essential part of the operation of TG and TG was hired to do this on an emergency basis in order to keep the business in operation.
Procedural History: TG appeals from the Interlocutory order, and the Opinion and Award finding that Lane was employed by Triple M Services and that TG is responsible for the payment of benefits as an up-the-ladder employer.
Issues: Was the type of work performed at the time of Lane’s injury a regular and recurrent part of the work of the trade, business, occupation, or profession of TG?
Holding: Yes
Reasoning: The WCB references Daniels v. Louisville Gas & Electric Company Co., 933 S.W. 2d 821 (Ky. App. 1996) and General Electric Corporation v. Cain, 236 S.W. 3d 579 (Ky. 2007) which provide how to analyze addressing work which is “regular or recurrent”.
The facts of this case fit within the example in Cain. Six contractors were working the day before the injury, cleaning fans, paint lines, etc. On the date of injury, 4 were present. The day before the accident the louvers would not close. Contractors performed many cleaning jobs on the paint lines and ovens. TG regularly retained these contractors to do maintenance and cleaning in the painting department. Maintaining, cleaning, and repairing various equipment used in the painting department of TG was work that is customary, usual, or normal and was repeated with a degree of regularity.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Carnell Sims v. Hill Transportation Services, Inc.; WCB No. 201691806; Alvey; Entered 1/19/2018.
Facts: Sims was an over the road truck driver, earning $1425.00 per week, who injured his left knee and low back when he slipped and fell. He did not RTW with Hill after the injury. He worked for his next employer, at unknown wages, until he quit because it was too physical. He then worked for KES Harris Trucking, driving a truck, but earning $16.00 per hour. He states he can no longer perform physical labor due to his injuries.
Dr. Thomas Bender assessed a 5% rating to the lumbar region, and a 1% to the left knee, for a combined 6%. He may require a surgery to the left knee. He believed that Sims could return to the type of employment he had at the time of the injury.
Hill filed Dr. Gerard Papp who thought Sims’ problems were the result of pre-existing deteriorating conditions in both the knee and back.  He assigned a 0%, and any injury was temporary, with no significant exacerbation. He could do his usual and customary job.
At the BRC the parties listed issues, which did not include a medical bill from Dayton Outpatient Center in the amount of $420.00, which was then submitted to the employer prior to the hearing.
The ALJ adopted the ratings from Dr. Bender, but did not apply a multiplier, finding that Sims had not returned to work earning same or greater wages, and, both doctors had released him to RTW without restrictions.
The ALJ also declined to hold the employer responsible for the medical bill as it was not preserved as an issue at the BRC.
Procedural History: Sims appeals from an award of TTD, PPD, and medical benefits for left knee and low back injuries sustained on 2/19/2016, arguing he was entitled to either the 2 or 3 multiplier, and, that the employer should be responsible for a medical bill submitted after the BRC, but before the hearing.
Issues: 1.) Did the ALJ correctly determine that the Claimant was not entitled to enhancement of his award?
2.) Did the ALJ err in finding that the employer was not responsible for the outstanding medical bill?
Holding: 1.) Yes
2.) No
Reasoning: 1.) None of the physicians specifically stated that Sime could not return to the work he was performing at the time of the injury. Some even declined to assign any restrictions. The restrictions that he was assigned did not preclude such employment.
Since at no time did Sims ever return to employment at same or greater wages following the injury, by statute, he was not entitled to the “2” multiplier.
2.) The issue of unpaid or contested medical bill was not preserved as a contested issue at the BRC. 803 KAR 25:010 sec. 13 (12) provides, “Only contested issues shall be the subject of further proceedings.” Therefore the issue of the contested medical bill was not preserved as an issue for appeal.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: Sapphire Coal Company v. Kevin Wurschmidt; WCB No. 201502100; Rechter; Entered 2/2/2108
Facts: Income benefits were awarded and the ALJ ordered interest at the rate of 12% to be paid at the rate of 12% on past due benefits thru 6/28/2017, and 6% thereafter.
Procedural History: Sapphire appeals from an award of workers’ pneumoconiosis, arguing the judge erred in awarding interest on back due benefits owed thru 6/28/2017 at the rate of 12%
Issues: Was interest due at the rate of 12% on back due benefits thru 6/28/2017?
Holding: Yes
Reasoning: The WCB was consistent in its holdings that interest on back due income benefits thru 6/28/2017 is to be paid at the rate of 12%
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: Louisville & Jefferson County Metropolitan Sewer District v. Gary Trowel; WCB No. 201700484; Alvey; Entered 1/19/2018
Facts: MSD filed this Notice of Appeal 37 days after the ALJ decision became final in this knee replacement injury case.
Procedural History: MSD filed this Notice of Appeal 37 days after the ALJ decision.
Issues: Did the WCB have any jurisdiction to decide this case when the Notice of Appeal was filed 37 days after the ALJ award, and no petition for reconsideration was filed?
Holding: No
Reasoning: The WCB lacks jurisdiction to hear a case when the appeal is not timely filed. Additionally, MSD did not respond to a Motion to Dismiss filed by Trowel.
Disposition: Dismissing
ALJ: Hon. Richard E. Neal

Case Name, Citation, Author: Noemis De La Cruz Gonzalez (Deceased) & Maria Esther Palencia (Admin.) v. DAJA Express Lines, LLC., Uninsured Employers Fund; WCB No. 201602382; Rechter; Entered 1/26/2018
Facts: DAJA is a trucking company that contracts with commercially licensed drivers to transport general freight. DAJA negotiated a price for the loads, and then present the negotiated price to the drivers, who were not obligated to accept the load, without any repercussion.
Drivers owned their own trucks and insured them, were free to choose their own route, and paid their own expenses. The drivers were given a 1099.
The ALJ did a detailed analysis under Ratliff v. Redmon and Chambers v. Wooten’s IGA Foodliner, and then dismissed the claim.
Procedural History: Plaintiffs appeal this dismissal wherein the ALJ found that Gonzalez was not an employee of DAJA at the time he was fatally injured in a motor vehicle accident.
Issues: Did the ALJ correctly cite the Ratliff and Chambers cases as the applicable legal guidelines, and draw the proper conclusions thereunder?
Holding: Yes.
Reasoning: There was sufficient evidence to support the ALJ’s decision. This was in the discretion of the ALJ. While there were factors that would have weighed in favor of Gonzalez, it was the ALJ’s discretion, and the WCB was not going to reweigh the evidence.
The Estate argued that an unpublished COA opinion should have controlled (KC Trans. V. Thompson), but the WCB distinguished that case from the facts at hand.
Lastly the Estate argued over the weight given the testimony of the employer, given that Gonzalez was deceased and could not testify. This was not a factor as Alvarez did not testify as to any conversations he had with the decedent Gonzalez.
Disposition: Affirmed
ALJ: Hon. Richard Neal

Case Name, Citation, Author:  Uninsured Employers Fund v. Jose Acahua, et al; 2016-SC-000252-WC; Memorandum Opinion; Entered 9/27/2017; TO BE PUBLISHED.
Facts: Silva-Lamas filed his claim alleging Acahua as his employer. Through a series of events, it was eventually determined that Lopez was the employer. A new application was filed, and Lopez was sent a copy of the application by first-class mail. That mailing was returned stamped “undeliverable.” It was determined that both Acahua and Lopez were uninsured.
Because it appeared that Lopez never received notice of the claim, the UEF contested the DWC’s jurisdiction to proceed against him, and, by extension, against the UEF.
UEF argues that pursuant to KRS 342.135, the Commissioner was required to serve notice of Silva-Lamas’ claim by registered mail. By failing to do so, the ALJ was deprived of jurisdiction over Lopez, and by extension, over the UEF.
Procedural History: An ALJ found that Isaias Silva-Lamas was PTD while in the employ of Luis Lopez, an uninsured employer. That was not disputed. UEF contests whether Lopez was properly notified of Silva-Lamas’ claim. The ALJ, WCB, and COA all held that notice was given.
Issues: 1.) Was it necessary for the employer, and by extension, UEF, to be given notice of the filing of the claim by registered mail?
Holding: 1.) No
Reasoning: 1.) Looking at KRS 342.135 as a whole, it is clear that the General Assembly intended to provide two methods for notices to be given or served. The first is by registered mail, the second is pursuant to whatever method the civil rules deem adequate. The statute does not make notice by registered mail mandatory.
The Commissioner’s mailing of notice of the claim to Lopez complied with the service requirements of the Civil Rules for three reasons.
1. When the notice was mailed, Lopez was not in default, and the notice did not contain new or additional claims of relief.
2.  CR 5.02 provides no modifier to “mailing”, any method of mailing, including first class, is acceptable.
3. Taking UEF’s argument that all mailings must be registered to its logical conclusion, requiring all “notices”, of whatsoever nature to be registered would put a substantial financial drain on injured workers and the system because the minimum charge now is $12.20.
Disposition: Affirmed
ALJ: Hon. Thomas G. Polites

Case Name, Citation, Author: SCH Realty v. Todd Hardin; WCB No. 201688748; Alvey; Entered 11/22/2017.
Facts: Hardin fell on steps and alleged injuries to cervical and lumbar back. Only the cervical is in issue here, as the lumbar was dismissed, without appeal by Hardin, and will not be discussed further.
Hardin filed records from Dr. Paul McKee, including CT-scan on date of injury which revealed mild–to–moderate multilevel degenerative and hypertrophic changes primarily from C4-5 to C6-7. Records revealed continuing treatment for both cervical and lumbar which McKee found to be all stemming from the fall at work.
SCH submitted the report of Dr. Robert Sexton who assessed 12%, half to the cervical, and the remainder to the lumbar. All 12% was due to pre-existing, active conditions.
The ALJ noted the pre-existing cervical condition, but also noted there was no treatment, no proof that it was “active”, and that Sexton’s testimony that it was active was not persuasive.
Relying on Sexton, the ALJ awarded 6%, with no multiplier, and found work-relatedness based upon the “totality of the circumstances.” He also found that Dr. Sexton’s rationale that the cervical was active prior to the injury was “flawed” since there was a lack of evidence of active cervical problems prior to the date of the accident.
Procedural History: SCH Realty appeals from an award of PPD, and medical benefits for a cervical injury sustained on 4/4/2016 when he fell down stairs at work while carrying printer. A lumbar claim was dismissed, with no appeal.  SCH argues the ALJ erred finding a compensable cervical injury, and awarding a 6% PPD.
Issues: Did the ALJ err in determining Hardin sustained a work-related cervical condition?
Holding: No
Reasoning: While causation usually requires proof from a medical expert, an ALJ may properly infer causation, or a lack thereof, from the totality of the circumstances, as evidenced by the lay and expert testimony of record. The ALJ clearly outlined the basis for his determination Hardin sustained a cervical injury.
SCH was unable to sustain its burden of establishing a pre-existing active condition, as there was no evidence of record to support Dr. Sexton’s assessment.
Disposition: Affirmed
ALJ: Hon. Richard Neal

Case Name, Citation, Author: Landstar Systems, Inc. v. Cheryl Spencer; WCB No. 201501759; Stivers; Entered 9/1/2017.
Facts: Spencer alleged an injury to her back and neck while attempting to secure a tarp on 11/5/2013. She was paid TTD from 4/8/2014 thru 12/4/2014, which was later determined to not be TTD but disability that Spencer had paid for.
In 2008 Spencer and her husband signed a contract to work as truck drivers. Her and her husband owned their truck. They paid all expenses, and determined the route to take. They carried ammo and explosives, which meant their truck had to be rolling at all times. They received a 1099 at the end of the year. The checks from Landmark were made out to her husband. At the time she and her husband signed their contract they were given a card with Gallagher Bassett on it, and told to call that number in the event of an injury.
She and her husband were not required to take any load. Their truck did contain Landstar’s door signs and a unit number on the truck. An Independent ontract Operating Agreement was signed by the parties that set forth Spencer’s responsibilities. The Agreement specifically set forth that Spencer and her Husband were independent contractors.
The ALJ set forth the nine factors in Ratliff v. Redmon, as refined by Chambers v. Wooten’s IGA Foodliner to focus primarily on 4 factors. The ALJ felt the right to control the details of the work is the predominate factor, and noted the law favored the employer-employee relationship. The main factors appeared to be that Landstar chose the loads, chose the pickup and delivery of the loads, and Spencer could not deliver for another carrier without the prior written consent of Landstar.
Procedural History: Landstar appeals from an award of TTD, PPD (enhanced by 3), and medical benefits. The sole issue relates to the business relationship of the parties at the time of injury.
Issues: Did the ALJ err in finding that an employer- employee relationship existed rather than finding that Spencer was an Independent Contractor?
Holding: No.
Reasoning: In a contract of hire, the name adopted by the parties to describe their relationship is ordinarily of very little importance as against factual rights and duties they assume.
The WCB referred and cited specifically an unpublished SC case as being on all fours, Hicks v. Eck Miller Transportation, No. 2003-SC-0272-WC.
Here, the ALJ clearly found that Landstar controlled the delivery schedule and, and that Landstar only offered one route at a time. Also, Spencer could haul for others only after receiving Landstar’s written consent.
Finally, the ALJ noted that Spencer did in fact believe she was an employee of Landstar and the content of the documents was not explained to her. The ALJ chose this testimony in her discretion, and the WCB did not have authority to infringe on that determination.
This 34 page opinion should be read in toto as it is a good discussion and summary on the law of independent contractor versus employer-employee relationship.
Disposition: Affirmed
ALJ: Hon. Tanya Pullin

Case Name, Citation, Author: Robin D. Wilson v. Derby City Sign and Electric Inc.; 2017-SC-000237-WC; Memorandum Opinion; Rendered 12/13/2017; Not To Be Published.
Facts: Wilson installed and serviced commercial signs which involved heavy lifting and climbing ladders. In August, 2011, he experienced foot pain, which the doctors diagnosed as spurring, and recommended surgery which Wilson did not undergo. He RTW, and on 11/14/2011, while stepping off a ladder, his ankle rolled or twisted, providing a pain not experienced before. He was unable to walk.
Three days later, he returned to the doctor’s office, where he was diagnosed with a peroneous longus tendon tear which required a surgical repair. Previous examination had not revealed the existence of a torn tendon, nor was one anticipated.
Otherwise, there was a great deal of confusion over the treating doctor’s office notes, including striking similarities about history, diagnosis, etc. The history of an injury was corrected later by the doctor. After RTW at Derby, he was laid off, however, Wilson found 2 subsequent similar jobs, and unfortunately, pain and swelling in his left foot worsened.
The ALJ found Wilson to be a credible witness, and relied upon the medical notes and records to be persuasive in making his award. After the WCB affirmed, Derby appealed to the COA, which the SC notes “reversed the Board’s decision in a plurality opinion lacking a single rationale supported by a majority of the appellate panel.”
Procedural History: Wilson appeals from a COA ruling that reversed the decision of the ALJ and WCB awarding benefits to Wilson as a result of a work-related accident that injured his left ankle.
Issues: Was there substantial evidence to support the ALJ’s finding of causation?
Holding: Yes
Reasoning: The Obvious import of the medical evidence, as found by the ALJ, is that a torn tendon is the kind of injury that can, and frequently does result when someone rolls their ankle. A torn tendon could reasonably be determined to not have occurred or associated with a bone spur or heel pain. There was no evidence that the conditions diagnosed in August were evidence to be so compelling so as to find in Derby’s favor.
Even a lay person the least bit familiar with his own limbs and life’s experiences can readily conceptualize how a twisted ankle can cause the kind of injury Wilson experienced.
Disposition: Reversing
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Tammy Phillips and Johnnie Turner v. Aisin Automotive Casting; WCB No. 201371389; Stivers; Entered 12/1/2017.
Facts: Phillips alleged that on 8/9/2013 she sustained injuries to her left wrist, right foot, and back while in the employ of Aisin.
She submitted the IME of Dr. David Muffly who diagnosed left distal radius fracture with residual post-traumatic loss of motion. He also found a stress fracture of the right 3rd metatarsal, with full recovery, which he did not think was work-related. He assigned 7% to the UE, again reiterated he did not believe the foot was work-related, but deferred that opinion to the treating physician.
Aisin introduced the IME of Dr. Michael Best. He felt the low back was all prior active, and assigned 0%. He assigned 4% to the wrist, and would assign 1% to the foot, however, did not think it was work-related. There were no restrictions. Essentially, the mechanics of the injury, falling on her wrist, could not have caused a stress fracture.
The ALJ awarded a 7% disability, without enhancement, TTD as paid, and medicals, dismissing the foot, low back, and denying vocational rehab.
Procedural History: Phillips appeals from an award of TTD, PPD, and medical benefits for a left wrist injury, wherein her claim for a foot injury was dismissed, and her request for vocational rehabilitation benefits was denied.
Issues: Was the reliance on the testimony of Dr. Best to deny work-relatedness for the foot injury substantial evidence? Did the ALJ properly deny Phillips’ claim for vocational rehabilitation benefits?
Holding: Yes, and Yes
Reasoning: In his deposition, Dr. Best unequivocally opined, that more likely than not, Phillips did not sustain a work-related stress fracture. This was more than ample substantial evidence.
The use of the word “may” in KRS 342.710(3) indicates the issue of vocational rehabilitation is entirely within the discretion of the ALJ. The ALJ clearly outlined his reasons for denying the rehab, not the least of which was the determination that Phillips remained capable of returning to the type of work she performed at the time of injury.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author: Ryan Houston v. Greenup County Fiscal Court; WCB No. 201263966; Stivers; Entered 11/22/2017.
Facts: A form 110 was approved on 11/25/2014 for an injury that occurred on 10/31/2012 for “right ankle sprain, left foot fracture, and left knee muscle tear. A 6% impairment assessed by Dr. David Jenkinson was adopted.
On May 18, 2016 Houston filed a motion to reopen asserting injuries to his knees, low back, and other psychological injuries. He asserted a worsening of his injuries, and that his psychiatrist now considered him totally disabled from his injuries.
In a special answer Greenup asserted entitlement to a credit for payment of unemployment benefits, a credit for overpayment of voluntary income benefits, and unreasonable failure to commit to or follow competent medical aid or advice.
In a motion to dismiss, Greenup contended the claim for psychiatric must be dismissed because Houston knew about it but did not present it at the time of the original claim. Also, there was no objective evidence of a causal connection between his complaints and the work-related injury.
Shortly after the settlement Houston sought treatment for sleeping problems, nightmares, and panic attacks. After seeing treatment, the carrier sent a nurse to accompany him on visits. It was agreed he needed, and was provided, both inpatient and outpatient care with Dr. Khodeir. During this period both knees were operated on by Dr. Love.
The BRC order listed issues including statute of limitations and notice for the psychological condition, as well as change in condition.
The ALJ was unpersuaded there was a change in condition, and with regards to new conditions, that notice was not timely given, and the claims were not presented with the allowable statute of limitations. The MTR was dismissed.
Procedural History: Houston appeals from an ALJ order dismissing his claims asserted on reopening, in particular, the finding that Houston failed to give notice as soon as practicable of his claims.
The WCB reversed the ALJ’s holding that Houston failed to provide notice, and then vacated the remaining findings of fact and the dismissal of Houston’s claim, and remanded.
Issues: 1.) Was Houston’s failure to immediately report all body parts affected as a result of the accident equate to a failure to give notice?
2.) Did the ALJ adequately address the issue of whether there had been an increase in impairment for the injuries listed in the original claim?
Holding: 1.) No
2.) No
Reasoning: 1.) The ALJ’s finding that Houston failed to provide notice of “these claims” is erroneous as a matter of law. The statute does not require notice of claims. KRS 342.185 (1) only requires notice of an accident be given to the employer as soon as practicable. A worker is not obligated to give notice of a latent harm until the worker becomes aware of it.
If an employer receives notice of a work-related accident and what appears to be minor harm, it is excusable for the worker to fail to give notice of another more serious harm of which the worker is unaware.
In summary, if a worker gives notice of a work-related accident, and a harm resulting from the accident does not become apparent until sometime thereafter, further notice is not required until the harm develops into a compensable state.
Notice given to an employer by an employee of a work-related physical injury carries with it notice of all conditions which may reasonably be anticipated to result from the injury.
Further, when the ALJ indicated that “these claims” were not asserted within the statute of limitations, he failed to identify which claims to which he was referring, nor did he provide sufficient findings of fact providing the evidence upon which he was relying. The ALJ must enter findings of fact addressing whether Houston had a known psychiatric claim at the time the claim was settled in 2014.
2.) The ALJ did not cite to the evidence upon which he relied in making his statement that there had not been an increase, nor did he identify the “injuries actually listed in the original claim”. Nor did he address at all the compensability of dental treatment and Viagra which had been identified as issues.
On its own, the WCB addressed the failure of both of the parties to file a petition for reconsideration, and its effect on resolving purely factual questions, reiterating that a decision involving purely factual questions cannot be reversed if substantial evidence exists in the record.
However, determination of whether notice was timely-given is a mixed question of law and fact. On questions of law, or mixed questions of law and fact, the WCB’s standard of review is de novo.
Disposition: Reversed in Part, Vacated in Part, Remanded
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Fannie L. Cruse v. Henderson County Board of Education; 2015-SC-000506-WC; Memorandum Opinion; Not To Be Published; Rendered 12/14/2017.
Facts: The facts here are relatively simple and limited. Cruse was 71 on the date of injury, and, the ALJ, in her Award, limited the award of income benefits to Cruse to 104 weeks under KRS 342.730(4) because of her age. Importantly, Cruse had challenged the constitutionality of the statute limiting her benefits, beginning with her appeal from the ALJ decision to the WCB, and then to the COA.
On the other issue decided, whether Cruse was entitled to either PTD, or enhanced benefits, the SC easily affirmed the previous rulings because NO PHYSICIAN, including the treating ones, had assigned ANY WORK RESTRICTIONS to Cruse.
Procedural History: Cruse appeals to the Supreme Court after the WCB and COA affirmed a decision of the ALJ which limited Cruse’s indemnity benefits to two years for this Claimant who was 71 years old on the date of the accident.
Issues: Was Cruse, age 71 on the date of injury, limited to 104 weeks income  benefits under KRS 342.730 (4), as amended?
Holding: No
Reasoning: Cruse had challenged this particular statute at the ALJ, WCB, and COA levels. Because the constitutional issue was raised by Cruse, and this decision was pending when the SC rendered Parker v. Webster County Coal, LLC, Parker applies to this case. The ruling in Parker, of course, found unconstitutional KRS 342.730 (4) insofar as it limited income benefits to 104 weeks for individuals who had attained the age at which they were entitled to social security retirement benefits.
Disposition: Affirming in Part, Reversing in Part, and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author: Waymon Buckley v. Kenny Wayne Thomas D/B/A Thomas Trucking, C & J Mulch; WCB No. 201600484; Rechter; Entered 12/15/2015.
Facts: Buckley was a truck driver for Thomas when he fell from a truck to the ground, hitting his head and lower back. The case itself involved psychological and head injuries, as well as “up the ladder” issues, which the WCB did not discuss, as they were not germane to the issues on appeal.
Early treatment and testing revealed an “acute disc herniation”, with radiculopathy. Dr. Gregory Langford then diagnosed right paracentral disc protrusion at L5-S1, and he performed a right L5-S1 hemi laminectomy on 1/20/2016. Symptoms did not improve, and, after referral to Dr. John Colby, Buckley was diagnosed with post-concussive syndrome, failed back syndrome, and insomnia.
Dr. Charles Barlow performed an IME, and diagnosed status post disc excision, and possible herniation on the left at L5-S1 level. He declined to give a rating, and indicated Buckley could have RTW at his normal position after surgery, however, he developed peripheral neuropathies and could no longer perform his pre-injury work.
Dr. Thomas O’Brien performed an IME and diagnosed a lumbar contusion and mild concussion, with a dependency on opiates, and surgery was not necessary. He assigned 0% for a lumbar strain, but acknowledge 10% was proper for the micro discectomy.
The ALJ relied on Dr. O’Brien, and awarded 0%. Buckley, importantly requested additional findings on reconsideration, specifically a more detailed discussion of his treatment from the date of injury thru date of surgery, which was denied.
Procedural History: Buckley appeals from an award arguing that the ALJ failed to provide sufficient findings of fact and discussion to permit meaningful review.
Issues: Did the ALJ provide sufficient findings of fact and discussion to permit meaningful review?
Holding: No
Reasoning: While Dr. O’Brien’s decision constituted substantial evidence, the parties are entitled to findings sufficient to inform them of the basis for the ALJ's decision and to allow for meaningful review.
Aside from a summary of treatment at a primary care clinic 4 months after the injury, the ALJ failed to engage in a summary or a discussion of Buckley’s treatment from the date of the injury through surgery.
In finding a pre-existing condition, the ALJ is obligated to determine the nature of the condition, and whether it was active and impairment ratable prior to the work accident.
Buckley was also entitled to understand how the ALJ considered Dr. O’Brien’s opinion in the context of his treatment immediately following the injury.
Disposition: Vacating and Remanding
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author: Signature Healthcare East v. Kristen Mott; WCB No. 201601817; Stivers; Entered 11/9/2017.
Facts: Mott, an LPN, alleges a 7/4/2015 injury to the low back lifting a patient. Following the injury she worked light duty work until her last day of work, 5/8/2016, and, that for a period of time she earned equal or greater wages.
She then went to work for a different employer, earning more, and in a less strenuous position, and within the 25 pound restriction, with no repetitive bending and twisting, assigned by Dr. Rouben. At the time of the hearing she had yet a different job she was able to perform, but for less money. She did not believe she could return to the job at Signature.
Mott presented medical bills for payment for the first time at the hearing, not at the BRC, even though they were known to her then. The BRC order did, in fact, list unpaid medical expenses as an issue.
The ALJ ordered the employer to pay of these unlisted medical bills, despite objection by Signature because Mott had not complied with 803 KAR 25:010 sec. 13 (9) (a) to produce known unpaid bills at the BRC.
Procedural History: Signature appeals from an award sustaining a finding work-related back injury, and awarding TTD, PPD, and medical benefits. On appeal, Signature challenges the ALJ’s decision that it is responsible for the payment of medical bills which were generated prior to the BRC, but not presented at the BRC, and, that the ALJ’s analysis under Fawbush was erroneous as a matter of law.
Issues: 1.) Did the ALJ err when he ordered the employer to pay for medical expenses known by the Claimant at the BRC to be unpaid, but not presented at the BRC?
2.) Did the ALJ carry out the precise analysis required in Fawbush?
Holding: 1.) Yes
2.) No
Reasoning: 1.) The ALJ relied on the older version of the regulations in ordering payment. 803 KAR 25:010 sec. 13 (9) (a), and, the holding in Roach v. Owensboro Health Regional Hospital, in its final Court of Appeals form, are clear-failure to produce known unpaid medical bills at the BRC absent a showing of good cause may constitute a waiver to seek payment of those bills. The ALJ did not rely on the newer version of the regulation, and therefore that finding must be vacated. The ALJ must make a determination as to whether good cause existed. 
The WCB, sua sponte, also ruled that it was unclear as to why the ALJ left the record open beyond the hearing date, and the ALJ was directed to clarify the purpose for leaving the record open. Further, the ALJ, if good cause is found, must determine whether the bills are related to and reasonable and necessary treatment of Mott’s work-related injury.
2.) The records establish that at the time of the hearing Mott was earning wages in excess of her pre-injury AWW. The ALJ stated he was not persuaded of that fact, he failed to provide the basis for that statement.
Further, the ALJ only commented on the failure of Mott to be able to perform the duties of his current job.
Lastly, the ALJ failed to provide the basis for his conclusion Mott is not likely to earn the same or greater wages in the indefinite future.
Disposition: Affirmed in Part, Vacated in Part, and Remanded
ALJ: Hon. Roland Case

Case Name, Citation, Author: Phoenix Process Equipment v. Ronald Lee Jackson; WCB No. 201682331; Rechter; Entered 11/17/2017.
Facts: Jackson was a service technician which required him to regularly travel to international destinations. In June 2014 on a flight to Australia he began having leg pain, and upon return home was diagnosed with blood clots in the left leg and abdomen. Jackson had a family history of DVT and a personal history of blood clots.
Jackson treated with Dr. Christina Breit from July 3, 2014 thru July 25, 2016, who diagnosed pulmonary emboli and DVT, and, after blood work, a protein S deficiency, but she could not be certain about the cause of the Protein S deficiency.
Breit stated that the international travel was believed to be the cause of the blood clots, and if he no longer travelled, he would not require continued DVT medication. Jackson continues to travel internationally, and plans to work another 10 years.
The ALJ found an injury which caused a harmful change in the human organism and awarded medical benefits. Inter alia, Phoenix argued that benefits should be limited to any period of time in which Jackson is flying in the course of work duties, and whether there was a permanent harmful change.
Procedural History: Phoenix appeals from an award to Jackson for medical benefits for treatment of blood clots. Interestingly, Jackson filed his claim only seeking medical treatment, and not TTD or PPD.
Issues: Did the ALJ err in finding a harmful change to the human organism? Were the blood clots merely a symptom of a Protein S deficiency, which is not work-related?
Holding: No.
Reasoning: The WCB found Phoenix’s argument that a blood clot is not a harmful change in the human organism devoid of any merit and warranted no additional discussion. It is not a normally occurring innocuous condition in the human organism.
The fact that the clots resolve due to medication does not render them non compensable. A harmful change may or not be permanent. Permanency is not required.
It was unknown concerning the Protein S deficiency because of medication, and would not be known until Jackson quits taking medicine. Reasonable and necessary medical treatment cannot be determined prospectively. Phoenix may challenge that in the future.
Disposition: Affirmed
ALJ: Hon. Roland Case

Case Name, Citation, Author: Landmark Media Publishing LLC d/b/a Standard Publishing Company v. Mark Branham; WCB No. 201684336; Stivers; Entered 11/9/2017.
Facts: Branham sustained a work-related left knee injury on 2/4/2016.
Landmark introduced the report of Dr. Rick Lyons who noted 2 prior knee injuries and surgeries. He noted a 1% impairment to the knee following a second work-related injury. For this injury he assigned 4%, all related to the injury, which was all new and not related to prior injuries or impairments. He did not assign restrictions.
Branham filed Dr. Warren Bilkey who assigned 0% to the first injury, and 3% to the second injury. For this injury, he assigned a 4% rating all related to this injury, stating that the rating was for a specific injury, and there should be no apportionment for any prior active disability, as that was for a specific injury.
Procedural History:  Landmark appeals from the award of TTD, PPD, and medical benefits for his work-related left knee injury. Landmark argues that the case should be remanded for an award in compliance of KRS 342.730 (2). Landmark sought credit for a work-related previous injury to the knee.
Issues: Was there a prior active disability for which the ALJ should have given the employer credit?
Holding: No
Reasoning: Normally, the claimant’s PPD is determined by subtracting the pre-existing impairment rating from the overall impairment rating. The pre-existing active impairment must be determined from the AMA Guides.
Here, both Dr. Bilkey and Dr. Lyon assigned ratings solely to the work injury, independent of any prior injury or surgery. This was a specific injury and surgery for that injury, so there would be no apportionment. These were 2 different surgical procedures.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  J-Town Contractors v. Emery P. Martin; WCB No. 199960288; Rechter; Entered 10/13/3017
Facts: Martin filed his claim in 2002 alleging injuries to his right arm, right shoulder and neck on 8/27/1999. The neck pain appeared to be related to a knot and pain in the trapezius muscle. The claim was resolved by agreement, and right arm, right shoulder and neck were listed as affected body parts and occult instability right shoulder as the diagnosis.
A right shoulder MFD was resolved in Martin’s favor in 2012. Martin filed a MFD on 2/19/2016 seeking TTD for a shoulder surgery, which J-Town agreed to pay. On 8/1/2016J-Town filed this motion challenging causation and work-relatedness of a cervical MRI recommended by treating Dr. Mark Smith.
Martin submitted the medical records of Dr. Smith and Erin Gish P-AC of Ellis and Badenhausen, documenting treatment for the right shoulder, with no complaints as of 3/2/2016 of anything cervical. The notes do reference cervical sprain on occasion, and, a request for an MRI and TENS unit to evaluate for HNP, which were denied by the carrier.
As late as 2012 Dr. Smith, in preparing a report, had not identified any cervical pathology or symptomatology, or diagnose a cervical condition.
Dr. Peter Kirsch conducted a records review for the employer and found no objective evidence that the cervical or trapezius were work-related.
Dr. Brian Pienkos conducted an IME for the employer, found no work-relatedness, and no need for MRI.
Procedural History: J-Town appeals from the Opinion and Order in this Reopening/MFD in which the ALJ ruled that Martin was entitled to treatment for a cervical condition.
Issues: Was there any substantial evidence to support an inference that Dr. Smith believed that cervical complaints in 2016 were related to the 1999 injury?
Holding: No
Reasoning: The diagnosis of cervical strain first appears in the records on 3/30/2016. Those records contain no history of when the cervical strain occurred, and Dr. Smith had treated Martin from 2002 to 2003, and again in 2011 with no reference to a cervical diagnosis or complaints.
The only experts who addressed the work-relatedness of the cervical were Drs. Kirsch and Pienkos.
Disposition: Reversing in Part and Remanding
ALJ: Hon. Jane Rice Williams

Case Name, Citation, Author:  Robert Hale v. United Central Industrial Supply Co. Inc.; WCB No. 201601849 & 201601848; Stivers; Entered 10/20/2017
Facts: The Form 103 alleges a hearing loss claim of 10/13/2015. The Form 101 alleges cumulative trauma injuries to the neck, back, and left shoulder on 10/13/2015 due to hard and heavy labor.
A Form 108 contains the 11/22/2016 Hearing Loss Report of Drs. Raleigh Jones and Persis Ormond of the University of Kentucky Healthcare, assigning 0%.
United Central filed the IME report of Dr. Timothy Kriss who found no evidence of work-related causation for Hale’s physical complaints, and, in particular, no evidence of injury. Kriss assigned 25% DRE IV for the cervical, but it was all the aging process. He assigned 5% for a DRE II for the lumbar due to the aging process. Finding a normal Range of Motion for the shoulder, he assigned 0%.
The ALJ relied on the report of Dr. Kriss, noting that the report and records of Dr. Nadar did not explain the relationship between work and the injuries. The WCB must not have liked it either because it ignored Nadar in its summary.
The ALJ dismissed the hearing loss claim for indemnity, which the WCB affirmed, but the WCB did send the case back for the ALJ to award medical for the hearing loss because the doctors did agree that there was a work-related hearing loss, just not one arising to the level of an impairment.
Procedural History: Hale appeals from an Opinion and Order dismissing his claim for alleged work-related cumulative trauma injuries to his neck, lower back, and shoulders, and a hearing loss claim sustained while in the employ of United Central.
Issues: Was there sufficient evidence for the WCB to uphold the finding of the ALJ dismissing the claim for cumulative trauma?
Holding: Yes
Reasoning: This was simply the case where the ALJ believed Dr. Kriss and relied on his testimony, as he is allowed to do. Apparently, Dr. Nadar did not explain the causal relationship between work and the injuries.
Disposition: Affirming in Part, Reversing in Part, and Remanding
ALJ: Hon. Grant S. Roark

Case Name, Citation, Author:  Marvin Daley v. Dr. Pepper Snapple Group; WCB No. 201602499; Rechter; Entered 10/20/2017
Facts: Daley was a mechanic who sustained injuries to his left knee, left shoulder, and low back on 8/17/2015. Daley treated at Hardin Memorial and Dr. Robert Berlin reporting neck and back pain. On a follow up visit, Berlin diagnosed cervical strain, with left upper extremity radiculopathy and lumbar strain. He was referred to Dr. Thad Jackson where he was treated by Erica Greenwell, PA-C. An MRI revealed disc degeneration and a bilateral chronic L5 pars defect.
Dr. Jackson, in a Form 107, diagnosed low back pain with spondylolisthesis exacerbated by the injury, and that the pars defect was brought into disabling reality by the work accident. He assessed 13% and found MMI on 8/17/2016.
Daley had undergone two cervical discectomy and fusion surgeries in 1996 and 2012, and cervical steroid injections in 2011. No prior treatment for low back.
Dr. Robert Sexton performed an IME on 6/8/2016. He diagnosed a cervical strain, lumbar strain, and left knee contusion, all work related. His MMI date was 8/17/2016.
Dr. Sexton gave a rather confusing deposition, first confirming 0% for the lumbar, and then 7% or 8%, with 5-6% due to the pars defect. He had no records concerning the injections, and was inconsistent with his findings.
The ALJ found temporary injuries to neck and knee, and relied on Sexton for the lumbar in assessing 8%, less 5% prior active, and found MMI on 2/9/2016. The ALJ selected this date because Daley had been referred to pain management on this date and was no longer actively treating the condition.
Procedural History: Daley appeals from the award wherein the ALJ determined he suffered temporary injuries to his cervical spine and left knee, and a permanent injury to the low back. Daley argues the ALJ erred in selecting a date upon which to terminate TTD, in her reliance on the medical opinion of Dr. Robert Sexton, and in finding a pre-existing, active low back condition.
Issues: Was the ALJ allowed to reject the medical proof in determining MMI in favor of independent conclusions based on the course of Daley’s treatment?
Holding: No.
Reasoning: On remand, the ALJ must identify a date of MMI that is supported by an expert medical opinion, or the date upon which Daley reached a level of improvement that would permit a return to employment.
The WCB went on to say that the ALJ’s reliance on Dr. Sexton was problematic. His report directly conflicts with his deposition, which itself was contradictory. In light of unavoidable inconsistencies in Dr. Sexton’s testimony, it was incumbent upon the ALJ to fully explain her rationale in relying on his opinion. These must be addressed on remand.
Disposition: Vacating and Remanding
ALJ: Hon. Christina D. Hajjar

Case Name, Citation, Author: Tony Couch v. James River Coal Service and Larry Hamilton v. Consol of Kentucky, Inc.; 2016-CA-001280- WC; Acree; Rendered 11/17/2017; Not to be Published.
Facts: Both Claimants filed for reopening under KRS 342.125 (5) (a) seeking increases in their awards due to alleged progression of the disease. In neither case was the Claimant able to show a worsening, nor had they worked an additional two years during which they were continuously exposed to hazards of the disease.
The WCB dismissed their claims.
Procedural History: These are 2 CWP cases were consolidated for appellate review. The solitary claim of each appellant is that KRS 342.125 (5) (a) is unconstitutional.
Issues: Does the statutory provision barring reopening of claims prior to an additional two-year period of exposure violate the Claimant’s equal protection and due process rights?
Holding: Unknown
Reasoning: The COA refused to rule on the constitutionality of the statute since there were other grounds available sufficient to rule on the case. Aside from the two year provision, the Claimants were not able to show other conditions necessary for reopening, and the COA relied on that in affirming.
The prevailing rule seems to be that the courts will avoid the question of constitutionality unless necessary to a proper determination of the merits of the case under consideration. See Preston v. Clements, Ky., 232 S.W. 2d 85 (1950)
Disposition: Affirmed
ALJ: Hon. Grant Roark and Roland Case
COA Panel: Kramer, Acree, and Stumbo

Case Name, Citation, Author:  Toyota Motor Manufacturing, Kentucky, Inc. v. Kathy Prichard; 2017-SC-000031; Memorandum Opinion of Court; Rendered 11/2/2017/ TO BE PUBLISHED.
Facts: The relevant facts are simple in this case we previously told you about.
On 11/13/2007, the ALJ approved a settlement for a 3/16/2005 work injury, and a PPD award based on a PI of 8%.
In April, 2009, Prichard filed a motion to reopen, and in September, 2011, an ALJ increased the award to 28%, indicating that Prichard could still perform sedentary work.
On August 12, 2014, based on Dr. James Bean’s report of April, 2014, Prichard moved to reopen, seeking a PTD award. Also filed was a report of Prichard’s primary physician, who concurred with Bean, and Toyota’s filing of Dr. Timir Banerjee, who maintained that Prichard’s condition should still be rated at 8%.
On May 20, 2015, the ALJ entered an award of PTD. The WCB and COA affirmed.
Procedural History: Toyota appeals the opinion of the COA which affirmed the WCB and the ALJ holding that Prichard was entitled to reopen her workplace injury claim almost 7 years after her initial award of WC benefits, but within 4 years of a subsequent order granting her additional disability benefits. On May 20, 2015 the ALJ entered an award of PTD.
Issues: Was Prichard’s 2014 Motion to reopen time-barred by the 4 year limitation period stated in KRS 342.125(3)?
Holding: No
Reasoning: The Court manifestly rejected this interpretation in Hall v. Hospitality Resources, Inc., 276 S.W. 3d 775 (Ky. 2008) The Court stated that the legislature intended to allow a four-year period for the reopening of an order granting or denying benefits. The Supreme Court then noted, in support of its position, that several legislative sessions had come and gone in the 9 years since Hall was rendered, and the legislature had not acted to amend the statute. That failure to do so is extremely persuasive evidence of true legislative intent.
Disposition: Affirmed
ALJ: Hon. William J. Rudloff

Case Name, Citation, Author:  McCoy Elkhorn Coal Corporation-Insolvent Employer; Kentucky Coal Employers Self-Insurance Fund and its Third Party Administrator Healthsmart v. Jeannie Sargent, as Widow, Administrator, et al; 2017-CA-000449; Dixon; Entered 10/13/2017; TO BE PUBLISHED.
Facts: We reviewed this at the WCB level. Farley Sargent was killed in a mining accident, for which The Mine safety and Review Commission issued citations to McCoy for violating safety regulations relating to its roof safety plan. The ALJ determined that McCoy committed intentional safety violations that caused Sargent’s death and awarded enhanced benefits pursuant to KRS 342.165 (1).
The only challenge to the award was the determination that the Fund was obligated to pay the 30% increased benefit.
Procedural History: Appellants petition for review of the WCB decision affirming an award by the ALJ of benefits to the surviving spouse and children of Farley Sargent II (Collectively Sargent). The sole issue presented is the ALJ’s determination KCESIF is responsible for payment of enhanced benefits a result of intentional safety violations by McCoy Elkhorn which caused the accident.
Issues: Was the Coal Employers Self Insurance Fund responsible for payment of enhanced benefits as a result of intentional safety violations by McCoy Elkhorn, which caused the accident?
Holding: Yes
Reasoning:  It was acknowledged that the Fund was not responsible for paying any penalties pursuant to statute, however, this is increased, or enhanced benefits, by statute, and not a penalty.
Disposition: Affirmed
ALJ: Hon. Jeanie Owen Miller
COA Panel: Acree, Dixon, and Jones

Case Name, Citation, Author:  Theresa Hall v. Commonwealth of Kentucky; WCB No. 201590249; Stivers; Entered 10/6/2017
Facts: The facts are relatively simple. Hall was walking and tripped, falling backwards and striking her tailbone forcefully on a hard surface, suffering a bone bruise of the sacrum. Thereafter she alleged pain in the back, hips, and lower extremities. The MFD was the result of seeking referral to a second orthopedic for those symptoms.
The WCB, in affirming, quoted sections of the ALJ analysis, quoting his reliance upon the evaluations of Dr. Timothy Kriss and Dr. David Shraberg, with little or no mention of the Plaintiff’s treating physicians.
Dr. Kriss explained the problems with the painful recovery from a tailbone injury, including his own experience with a same kind of injury, including the pain that often takes several months to dissipate. The long term prognosis was excellent, and he assigned a 0%. The left lumbar and sciatic pain were not present when Kriss first saw Hall, and he believed were not related to the incident.
The Commonwealth also filed the report of Dr. David Shraberg following an exam and review of records. He diagnosed long term depression, unrelated, and assigned 0%.
The ALJ, relying on the reports of Drs. Kriss and Shraberg, dismissed the case, finding that Hall had failed to meet her burden of proof.
Procedural History: Hall appeals from a dismissal of her claim for income and medical benefits, as well as a MFD resolved in favor of the employer. The claim was the result of a trip and fall with alleged injuries to back, hips, and lower extremities, as well as a worsening of Claimant’s psychological problems.
Issues: Was there substantial evidence to uphold the ALJ’s dismissal of Plaintiff’s claim?
Holding: Yes
Reasoning: The Order clearly establishes that the ALJ was persuaded by the opinions of Drs. Kriss and Shraberg. Both had opined that Hall’s impairment rating for each separate condition was 0%. The ALJ was free to rely on this evidence, and, explained fully his reasons for doing so.
Disposition: Affirmed
ALJ: Hon. Grant Roark

Case Name, Citation, Author:  Ford Motor Company (KTP) v. Ronald Coleman Jr.; 2016-SC-000689-WC; Memorandum Opinion; Rendered 11/2/2017; Not To Be Published.
Facts: After working at Ford since 1999, Coleman reported pain in the right wrist radiating into his forearm and elbow in a June 2013 visit to the Ford medical department.  He had surgery on the right wrist and elbow in November, 2013. He was given a new position with same hourly rate, but made more due to overtime.
Coleman filed his claim, with supporting records from Ford, Dr. Navin Kilambi, Dr. Tuna Ozyurekoglu, and Dr. Jules Barefoot.
Dr. Barefoot’s IME diagnosed bilateral median nerve neuropathy, status post right carpal tunnel release and right open lateral epicondyle debridement and extensor tendon debridement, persistent right elbow common extensor tendinosis, and left carpal tunnel syndrome. He assigned 6% for work-relatedness, and noted a long history of multiple injuries to the upper extremities.
Ford filed Dr. Richard Dubou who found the CTS to be work-related, but not the lateral epicondylitis, citing the “jury is still out” for work-relatedness. He assigned 2% for the CTS.
The ALJ relied on Dr. Barefoot’s evaluation on both issues, and assigned 6% and found the right elbow work-related.
Procedural History: An ALJ awarded Coleman TTD, PPD, and medical benefits for work-related right carpal tunnel syndrome and right lateral epicondylitis. The WCB and the COA affirmed. Ford maintains there is not substantial evidence to support the finding that lateral epicondylitis was work-related, and not substantial evidence to support the finding of a 6% whole person impairment.
Issues: Were the findings of the ALJ concerning the 6% and work-relatedness of the elbow supported by substantial evidence?
Holding: Yes
Reasoning: First, Dr. Barefoot had noted the “long history” of injuries, and his narrative indicated that he thought the elbow to be work-related. In reviewing Dr. Dubou’s report, the ALJ found no “definitive” rejection of the elbow as being work-related in his report.
Disposition: Affirmed
ALJ: Hon. J. Gregory Allen

Case Name, Citation, Author:  Johnny Collins v. Pine Branch Mining, LLC; No. 2016-SC-001836; Memorandum Opinion; Rendered 11/9/2017; Not To Be Published.
Facts: Collins operated heavy equipment over 21 years with Pine Branch, requiring repetitive use of his upper extremities and his left leg. He worked 50 to 58 hours per week until he quit on 7/7/2014 due to unrelated conditions. He had not missed any time from work due to his work related injuries. The 7/7/2014 date was used as his date of injury.
Collins previously filed a bilateral CTS claim in 2006, resolved by settlement. There were previous minor injuries during employment. About 7 years previous Collins began having back pain which he attributed to the jarring from the heavy equipment. Also included was knee pain and shoulder pain, but there was no associated medical treatment.
Collins filed Dr. Chad Morgan D.C., who concluded Collins’ neck and back injuries were brought into disabling reality by the cumulative trauma years during the course of Collins’ employment. Dr. Arthur Hughes, on referral from Morgan, concluded the same, and assessed a combined 30% for the right and left shoulders, bilateral CTS, low back and left knee, and 0% for the neck. He did not believe Collins could return to his former job.
Pine Branch filed Dr. Daniel Primm who diagnosed degenerative changes consistent with aging, with no evidence of any radiculopathy, and no other objective evidence of any other conditions. Collins could RTW as an operator.
Dr. Russell Travis found no evidence of low back or shoulder pain and no basis for any impairment.
The ALJ concluded Collins failed to meet his burden, and found the reports of Primm and Travis to be most persuasive. Also noted was the lack of records pertaining to back pain prior to 2015, and no complaints concerning the CTS after settlement. The claim was dismissed.
Procedural History: The ALJ entered an Oder dismissing Collins’ claim for benefits arising from cumulative trauma allegedly occurring during his employment with Pine Branch, arguing the ALJ erroneously relied on the medical reports submitted by Pine Branch, and on the lack of medical records prior to 2015 which supported his claim. The WCB affirmed the ALJ, as did the COA.
Issues: Was there any basis presented on appeal showing the ALJ committed a flagrant error in assessing the evidence?
Holding: No
Reasoning:  The ALJ is the sole authority to judge the weight to be accorded the evidence, as well as inferences to be drawn therefrom. Where the evidence is conflicting, the ALJ has the discretion to pick and choose what to believe. Furthermore, an ALJ is vested with broad authority to decide questions involving causation.
Disposition: Affirmed
ALJ: Hon. Stephanie Kinney

Case Name, Citation, Author:  Joseph Ambs v. Aleris International Inc.; WCB No. 200989758; Alvey; Entered 10/27/2017.
Facts: Ambs filed his motion to reopen on 5/26/2017 “for the purpose of conforming the award as set forth in KRS 342.730 (1) (c) (2)”. In his motion, Ambs sought an additional 127 weeks of benefits, stating that his benefits cannot be terminated upon reaching the Social Security retirement age in Kentucky anymore. The settlement agreement specifically stated that Ambs would reach age 66 on 9/2/16.
The ALJ noted that the motion was filed more than 4 years after the date of settlement, and, further, that even had the Parker case become final, it could not be applied retroactively.
The CALJ determined that Ambs had not presented a prima facie case for reopening the claim.
Procedural History: Ambs appeals from the order overruling his motion to reopen filed May 26, 2017 since it was filed after September 2, 2016, the date of the expiration of the term of benefits agreed to in his Form 110 Settlement Agreement approved on 2/11/2011.
Ambs argues if his benefits had not been limited due to his age pursuant to KRS 342.730 (4), he would have been entitled to payment for 425 weeks, rather than the 297 weeks of benefits he actually received. Ambs argues the CALJ’s ruling that Parker v. Webster County Coal is not retroactive is contrary to established law.
Issues: Did the CALJ abuse his discretion in not allowing Ambs to reopen his claim for additional weeks of benefits, and allow Ambs to retroactively effect his claim?
Holding: No
Reasoning: At no time within 4 years of the original settlement did Ambs attempt to reopen or to amend his award.
Further, KRS 342.125 (4) states that reopening shall not affect the previous order or award as to any sums already paid, and any change is only from the date of reopening forward. This phrase has already been construed to require that any motion to reopen may not have a retroactive effect.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

Case Name, Citation, Author:  Eric Turner v. Ford Motor Company; 2017-SC-000086; Memorandum Opinion; Not to Be Published; Rendered 9/28/2017
Facts: Turner suffered upper extremity injuries as a result of repetitive work activities at Ford. The ALJ awarded TTD and PPD based on a 7% rating. The sole issue on appeal concerned the award of TTD benefits by the ALJ during a period of time that Turner was working light duty and receiving full wages.
The important fact here is that this case was decided prior to the Court’s ruling in Tipton.
Procedural History: The WCB affirmed the ALJ in total, however, the COA affirmed on the PPD only, and reversed on the issue of TTD. This appeal followed.
Issues: Because the findings and conclusions of the ALJ are consistent with the requirements under Tipton, which had not yet been decided, was it error for the COA to reverse and remand on the issue of entitlement to TTD benefits?
Holding:  No
Reasoning: Tipton had not been rendered when the ALJ awarded TTD. Because the ALJ could not have considered Tipton factors, even though the summary was comparable, the matter is remanded to the ALJ for that consideration.
Disposition: Affirmed
ALJ: Hon. Tomas Polites

Case Name, Citation, Author:  Damas Ramey v. Pike County Fiscal Court; WCB No. 200797351; Rechter; Entered 7/7/2017
Facts: Ramey suffered a work injury on 1/17/2007, which was settled based on an 11% impairment rating with no enhancements on 4/24/2008.
Ramey filed a Motion to Reopen on 12/7/2011 alleging a worsening which ALJ Roark dismissed, finding no change.
A second MTR was filed on 2/19/2014 stating Ramey was no longer working due to the injury, and his worsened condition warranted the use of the “3” multiplier. On 9/18/2014 ALJ Weatherby determined Ramey had failed in his burden, and further that Ramey did not cease working as a result of his injury. That motion was dismissed, and no appeal taken.
A third MTR was filed 1/17/2017, arguing newly discovered evidence, and entitlement to the 3 multiplier, and claiming that ALJ Weatherby had failed to properly apply the law previously, and, again asserting he had ceased working and was entitled to the 3. The CALJ overruled this MTR.
Procedural History: Ramey appeals from the March 6, 2017 Order of CALJ Swisher overruling Ramey’s motion to reopen his claim, arguing ALJ Weatherby improperly considered his 2014 MTR, and continuing to argue his entitlement to the 3 multiplier.
Issues: Did the CALJ abuse his discretion when he overruled Ramey’s MTR?
Holding: No
Reasoning: The CALJ fully considered Ramey’s assertions, and concluded he did not meet his burden of proof. If Ramey wanted to challenge ALJ Weatherby’s conclusions, the proper avenue was to appeal from the 9/18/2014 order.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Lexington Fayette Urban County Government v. Harry Ashby; WCB No. 201568494 & 201493123; Stivers; Entered 9/1/2017
Facts: Ashby alleges that on 9/3/15 he injured his back while lifting. A previous Compensation claim for a slip and fall injury to the tailbone was settled by lump sum on 3/13/15.
Ashby introduced the IME report of Dr. Anthony McEldowney dated 6/9/2016. McEldowney opined the work injury was the cause of Ashby’s complaints, and diagnosed a thoracic spine sprain/strain. He assessed a 6% whole person impairment. He was not aware of Ashby’s 2/18/15 incident and injury to his mid back at Good Samaritan.
The ALJ relied upon the opinion of Dr. McEldowney and awarded the 6% impairment for the injury of 2/3/15 to the thoracic spine, indicating he believed that McEldowney had successfully isolated the thoracic injury from the lumbar injury.
Procedural History: LFUCG appeals from an award of TTD, PPD, and medical benefits maintaining the ALJ erred by relying on Dr. Anthony McEldowney’s medical opinions, arguing that he failed to take into consideration Ashby’s non-work-related accident that occurred at Good Samaritan Hospital on 2/18/15.
Issues: Did the ALJ err when he relied upon Dr. McEldowney’s opinions after McEldowney failed to acknowledge the slip and fall at Good Samaritan because he either did not know about, or because he just chose to ignore it? Does Cepero v. Fabricated Metals apply?
Holding: No
Reasoning: Cepero was distinguished as involving an egregious omission of directly relevant past medical history which the WCB did not find existed here. There was no evidence here that the slip and fall at Good Sam resulted in injuries.
Significantly, no physician of record opined Ashby had an active and impairment ratable condition of the thoracic spine at the time of this injury, only the lumbar. In addition, the ALJ was allowed to rely upon Ashby’s testimony that he did not suffer any injuries in the 2/2015 fall.
Disposition: Affirmed
ALJ: Hon. Jonathan Weatherby

Case Name, Citation, Author:  Freida Pegues v. White Castle System; WCB No. 201477163; Rechter; Entered 7/7/2017
Facts: Pegues claims an injury to her low back from lifting on June 12, 2014. She reported the accident and immediately sought medical treatment with her family physician, Dr. Sam Persad, who referred her to Dr. Gregg Malmquist. Before that exam, however, she was seen at Medical Center of Bowling Green on June 16, 2014 with complaints of hip and back pain for 3 months, and no specific trauma.
When seen by Malmquist on June 19, she reported a 4 month history of low back and leg pain, and no trauma. Testing revealed posterior changes at L5-S1. He recommended an MRI, with a referral to Dr. Mladen Djurasovic who performed a lumbar fusion in February, 2015.
White Castle filed 3 other pre-injury instances of low back pain.
Dr. Anthony McEldowney did an IME on 5/20/2016, and diagnosed a L5-S1 herniated nucleus pulposus, and opined a work injury on 6/12 which required fusion.
Dr. Thomas Loeb did an IME on 11/8/2016 and diagnosed multi-level degenerative disease, worse at L5-S1 and status post fusion surgery. He opined Pegues had a ratable and active pre-existing condition prior to the alleged work incident, and at most, that incident was a mild to moderate strain.
In the original decision dated January 27, 2017, the ALJ determined that Pegues did not suffer a work-related injury, noting her prior treatment, and her failure to report a specific incident after the event.
A petition for reconsideration was filed February 14, 2017, which the ALJ ruled as untimely, and explain he had previously acted within his discretion.
Pegues argues that because McEldowney had found a work-related permanent impairment, and Loeb a work-related temporary injury, the ALJ was compelled to find at least a temporary injury.
Procedural History: Pegues appeals from the 1/17/2017 Opinion and Order dismissing her claim for a low back injury. Her petition for reconsideration was considered untimely filed by the ALJ. She argues the ALJ improperly ignored the medical evidence which unanimously established a work-related injury.
Issues: Was it proper for the ALJ to reject both medical opinions concerning the possibility of a temporary or permanent injury?
Holding: Yes
Reasoning: Both opinions were based on a mechanism of injury as provided by Pegues. The ALJ rejected the narrative of the injury and provided evidence-based reasons for doing so. He was within his discretion to do so, and because the medicals were based on Pegues’ account of the injury, the ALJ was within his discretion to reject the medical proof.
Disposition: Affirmed
ALJ: Hon. Chris Davis

Case Name, Citation, Author:  Kelly O’Connor v. UPS Supply Chain Solutions; No. 2016-CA-001752-WC; Johnson; Not To Be Published; Rendered 7/14/2017.
Facts: O’Connor, while moving boxes weighing more than 70 pounds, felt a pop in his chest and a painful sensation, reporting the incident and going home. He returned to work 3 days later and experienced a repetition of the pain, went to see his family doctor, and received an eventual referral to Dr. Stacie Grossfeld, an orthopedist.
Grossfeld diagnosed a bulge in the cervical spine, which was attributable to the work, was found to be compensable, and not an issue.
Grossfeld also determined the LBP was due to a lumbar spine impairment, a pars defect, which is a congenital condition occurring when a spinal growth plate does not fully close. The defect was lateral and had worsened to the point that O’Connor had Grade I spondylolisthesis. She did not believe the work activity caused the LBP but the pars defect was exacerbated by morbid obesity. At some point in his life he was going to have LBP from this.
Dr. Phillip Corbett did an IME for UPS, and failed to relate the lumbar to an injury, and acknowledged there was no evidence of an active impairment prior to the work injury.
The ALJ awarded benefits for the cervical, and, relying on Dr. Grossfeld, held the lumbar condition was not caused, aggravated, or aroused into disabling reality by any work injury or by any cumulative trauma sustained at work.
Procedural History: O’Connor petitions for review of a WCB opinion that affirmed an ALJ award of benefits to O’Connor for a cervical injury, bit declining to find a work-related lumbar injury.
Issues: Was Dr. Grossfeld’s testimony that the pars defect was a congenital condition that would worsen over time, and was exacerbated by O’Connor’s obesity, substantial evidence to support her decision that the lower back was not work–related?
Holding: Yes
Reasoning: O’Connor first mentioned LBP to Dr. Grossfeld 6 months after the incident, on his third visit. If he had lifted repetitively, the symptoms might have been caused from the work injury. The ALJ has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.
Disposition: Affirmed
ALJ: Hon. Grant Roark
COA Panel: Acree, Johnson, and Taylor

Case Name, Citation, Author:  Irving Materials Inc. v Raymond Tungett; 2016-SC-000454-WC; Memorandum Opinion; Rendered 9/28/2017; Not To Be Published
Facts: The facts were disputed. On a Saturday, 5/31/2014, Tungett alleges to have hurt his back, and called his supervisor. He worked on Monday, but then took 2 days off. On Thursday, he claimed a re-injury. He went to an immediate care on 6/3/2014, but could not get treated for a work injury due to lack of paperwork, so the next day he sought treatment. He told the provider it was not work-related, so his private health paid, and continued to pay until it lapsed. From witnesses’ testimony, it appears that Tungett went to his employer and wrote down a description of what happened on 6/9/2014. That document was not in the record.
The Supervisor recalled telephone conversations with Tungett, but denies ever being told about a work injury.
The safety manager was aware of the fall from the truck, and he had been notified by the immediate care about the visit. He advised Tungett to come in, but he did not do so until 6/9. Tungett mentioned a work injury, but did not relate it to a particular event when he came in. Tungett had also applied for a position at a different company, indicating an ability to work there, unaware that the company was owned by Irving, and his application was being routed there.
The medical evidence in the case was not discussed by the Supreme Court.
The ALJ dismissed the claim, relying on the testimony of the employees whom he found to be more credible.
Procedural History: The ALJ dismissed Tungett’s claim for notice. The WCB affirmed, however, the COA, in a split decision, reversed and “remanded to the ALJ to fashion a benefit award.” The Supreme Court, in this decision, reverses the COA and reinstates the ALJ order dismissing for notice.
Issues: Was there substantial evidence to support the ALJ’s findings in dismissing the claim of Tungett for failure to give notice within a reasonable time? 
Holding: Yes
Reasoning: The COA attempted to substitute its factual findings regarding notice for that of the ALJ. All other things being considered, the employer had received information about a 5/2 injury, not a 5/31 injury that Tungett relied on when filing his Form 101.
Disposition: Reversing
ALJ: Hon. Steven Bolton
Amicus Curiae: Mary Michelle Cecil (AFL-CIO)

Case Name, Citation, Author:  Theresa Hunt v. Voith Industries; WCB No. 201486257; Rechter; Entered 7/7/2017
Facts: This case was bifurcated to determine the compensability of a shoulder surgery. ALJ Wolff ordered the surgery and payment of TTD. TTD was paid originally at the weekly rate of $402.91, and then on 2 separate occasions at $4.13 per week, and $27.25 per week. The payments for these 2 periods represent the difference between a short term disability rate and the TTD rate.
There was a reimbursement provision in the employer’s plan and the employer reimbursed Liberty Mutual directly for the STD and LTD benefits it paid.
In his decision, ALJ Gott ordered PPD benefits and “temporary total disability benefits as paid.” He noted the issue of credit for STD and LTD benefits had been waived at the hearing.
On reconsideration, the ALJ amended his award to provide Voith was responsible for TTD benefits for specific dates at the rate of $402.91 per week.
Hunt wanted the order to reflect that the credit was limited to either $4.13 or $27.25 per week, arguing it was her responsibility to repay Liberty Mutual, not Voith’s. She also wanted interest, arguing the payments were overdue.
Procedural History: Hunt appeals from an Award arguing the ALJ erred  by failing to include language specifically limiting the extent to which Voith Industries is entitled to a credit for reimbursing Liberty Mutual, a third party insurance company, for short term disability benefits.
Issues: Was the ALJ’s order allowing the employer to directly reimburse the STD and LTD carrier an assignment of benefits under KRS 342.180?
Holding: No
Reasoning: There is a distinction for assignment of benefits for a prior debt versus the reimbursement for payment of disability benefits. This was simply a transfer of the compensation received pursuant to an order.
Unpaid interest and any reduction for attorney fees were not developed pursuant to KRS 342.460 and ERISA, and was not decided.
Disposition: Affirmed
ALJ: Hon. Douglas Gott

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 shoul