IMPORTANT NOTICE

NOT TO BE PUBLISHED OPINION

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RENDERED: DECEMBER 15, 2022

NOT TO BE PUBLISHED

Supreme Court of Kentucky

2022-SC-0016-WC

ELLIS POPCORN CO. C/O

MATRIX COMPANIES, TPA

APPELLANT

ON APPEAL FROM COURT OF APPEALS

NO. 2021-CA-1043

WORKERS’ COMPENSATION BOARD

NO. WC-91-04106

V.

ROBERT STOGNER; DR. ROBERT 

HAYDEN; DR. STEPHEN COMPTON; DR. 

JOHN RUXER/ORTHOPAEDIC INSTITUTE 

OF WESTERN KENTUCKY;

HONORABLE JOHN MCCRACKEN, 

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

APPELLEES

MEMORANDUM OPINION OF THE COURT

AFFIRMING

This appeal comes to us from Ellis Popcorn Company’s medical fee 

dispute challenging the Appellee, Robert Stogner’s, treatment to injuries of the 

left knee, left hip, left ankle, and right shoulder. The Administrative Law Judge

found these ailments to be a direct and natural consequence of a head trauma 

injury Stogner sustained on December 26, 1990, when he fell off a ladder. This 

finding was predicated on Stogner’s testimony and a 2017 medical report filed 

in a prior medical fee dispute related to Stogner’s 1990 injury. Ellis argues 

medical reports prior to June 2020 cannot be used by the ALJ to find 
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causation nor can Stogner’s own testimony. Instead, Ellis argues, Stogner 

needed to supply a medical opinion attributing his June 16, 2020, fall to his 

1990 injury. On appeal, the Board affirmed the ALJ. The Court of Appeals

subsequently affirmed the Board. Upon review, we affirm the Court of Appeals. 

I. Facts

Per the ALJ’s finding of facts, Stogner suffered a head injury on 

December 26, 1990, when he slipped and fell from a ladder, falling headfirst 

into a concrete floor, “and sustained a closed head injury with significant loss 

of function, including vision and hearing problems, as well as injuries to his 

low back.” Stogner related that since 1990 he has fallen hundreds of times and 

he is a high risk for falls.

As a result of his 1990 injury, Stogner was diagnosed with ataxia (the 

loss of muscle coordination), experienced seizures, and had to wear a brace on 

his left leg as well as walk with a cane. In 2017, because of two falls, he was 

diagnosed with a disc protrusion. He saw Dr. Zerga for an examination. Dr. 

Zerga concluded the disc protrusion was linked to the 1990 injury, and 

commented further on Mr. Stogner’s medical history, noting 

several issues in this gentleman. He had . . . significant brain 

trauma . . . He now has a mechanical movable brace [on his left 

leg] and has spasticity in both limbs . . . 400 to 500 falls. He 

blames it on his brace. He says sometimes his brace will 

malfunction and it will cause him to fall. He also has seizures. By 

his wife’s description they are complex partial seizures sometimes 

with secondary generalization. 

Dr. Zerga further opined that “his neurological deficits have caused frequent 

falls.” This report, along with statements by Stogner, formed the foundation for 
3

the ALJ’s ruling below. Stogner testified that he fell on June 16, 2020, as a 

result of his knee brace malfunctioning, i.e., it apparently locks in place 

sometimes and prevents Stogner from either bending or extending his leg 

correctly to maintain balance.

To the contrary, Ellis elicited the opinion of Dr. Avrom Gart. He 

performed a medical records peer review on August 5, 2020, but did not 

personally evaluate Stogner. Dr. Gart concluded the 1990 injury did not cause 

the left knee, left hip, left ankle, and right shoulder complaints but instead 

were the result of a fall on June 16, 2020, which was caused by Stogner’s 

development of knee osteoarthritis. The ALJ found Dr. Gart unpersuasive and 

his failure to evaluate Stogner in person as a reason to reject his opinion. The 

Board noted further, 

Dr. Gart failed to consider that Ellis has had to pay for several 

injuries caused by falls. The medical history proves he is a high fall 

risk because injuries sustained in the fall at work compromised 

the functioning of his left leg/knee. The original injury caused 

nerve damage in the left leg and knee and impaired balance due to 

ataxia related to the brain injury. 

...

It is not clear from Dr. Gart’s report that he had an accurate 

history regarding the number of falls caused by conditions related 

to the original work injury. Dr. Gart only lists Dr. Compton’s 

medical records from June 17, 2020 as records he reviewed. He 

indicated he had a peer discussion with Dr. Compton. Dr. Gart did 

not discuss the cause of the osteoarthritis, other than stating the 

1990 incident was not the cause. He did not discuss whether 

hundreds of falls caused by the effects of the work-related injury 

would have caused or contributed to the osteoarthritis. He did not 

address how the buckling of the knee in 2020 would have a 

different cause than the buckling of the knee in 2017 that was 

determined to be the result of the 1990 injury. 
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The Board determined the ALJ was within his authority to reject Dr. Gart’s 

opinion and accept Dr. Zerga’s. It further determined that consideration of Dr. 

Zerga’s medical opinion was within the ALJ’s authority even though Stogner 

had never designated it as evidence. 

Before the Court of Appeals, Ellis abandoned the argument that Dr. 

Zerga’s report was improperly considered as evidence due to a lack of 

designation. Consequently, that argument is not before this Court either and 

we presume Dr. Zerga’s report was properly considered as an evidentiary 

matter. Instead, Ellis argues Dr. Zerga’s report does not constitute substantial 

evidence because it was rendered in 2017. In other words, “the ALJ erred by 

relying on the 2017 IME report of Dr. Zerga to conclude that a fall that 

occurred in 2020 was causally related to the neurologic effects of the plaintiff’s 

underlying work injury.” Ellis also argues that a 2017 report cannot constitute 

substantial evidence for a 2020 fall because Dr. Zerga obviously would have 

not had an adequate medical history of Stogner between the 2017 evaluation 

and the 2020 fall, thus should be disallowed under Cepero v. Fabricated Metals 

Corp., 132 S.W.3d 839 (Ky. 2004). Finally, Ellis argues that Kingery v. 

Sumitomo Electric, 481 S.W.3d 492 (Ky. 2015) controls because it held ALJ’s

are not free to ignore uncontradicted medical testimony regarding causation 

except in limited circumstances not present in Stogner’s case.

II. Standard of Review

The ALJ, as the finder of fact, and not the reviewing court, has the 

sole authority to determine the quality, character, and substance 

of the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 

S.W.2d 418 (1985). Where, as here, the medical evidence is 
5

conflicting, the question of which evidence to believe is the 

exclusive province of the ALJ. Pruitt v. Bugg Brothers, Ky., 547 

S.W.2d 123 (1977).

Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). But “ALJs are not 

permitted to rely on lay testimony, personal experience, and inference to make 

findings that directly conflict with the medical evidence, except in limited 

situations, such as matters involving observable causation.” Kingery v. 

Sumitomo Electric Wiring, 481 S.W.3d 492, 496 (Ky. 2015). On appeal, this 

Court addresses itself to “new or novel questions of statutory construction, or 

to reconsider precedent when such appears necessary, or to review a question 

of constitutional magnitude.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 

688 (Ky. 1992). We do not engage in reassessment of facts, inferences 

therefrom, or the reweighing of evidence. Id. at 687. In medical fee disputes, 

the employer bears the burden of showing the contested medical treatment is 

unreasonable or unnecessary. Richey v. Perry Arnold Inc., 391 S.W.3d 705, 712 

(Ky. 2012). 

III. Analysis

Ellis’ arguments are unavailing as neither of the cases it cites for 

compelling reversal in fact demand such an outcome here. In Kingery, the 

claimant suffered a mild strain to her shoulder and neck after one month of 

work. 481 S.W.3d at 494. Twenty-one years later, Sumitomo challenged 

continued payments for several prescription painkillers. Kingery submitted “no 

medical evidence to rebut Dr. Randolph's opinions” that the prescriptions were 

not related to her prior work injury. Id. at 495. Moreover, Kingery’s argument
6

that she was unable to work due to the injury was contrary to the ALJ’s 

original opinion and order that found “the work-related injury did not prevent 

her from returning to her employment with Sumitomo (or any other 

employment for that matter).” Id. at 496. Because Kingery never reopened her 

original case as a result of her allegedly worsening condition, she was bound by 

the original findings. Id. at 497-98. In contradistinction, Stogner was found to 

have suffered a traumatic brain injury by the ALJ in 1993. He was adjudged 

100% occupationally disabled and “cannot perform meaningful employment.” 

The medical evidence recorded by the original ALJ noted he suffered from 

“ataxia and unsteady gait such that he cannot walk without a cane.” He was 

also prescribed “Dilantin for seizures[.]” Thus, Dr. Zerga’s report in 2017 is 

consistent with the original findings of the ALJ in Stogner’s case. 

Additionally, even if Kingery were controlling in this case, its central 

ruling would not compel reversal. Kingery holds that uncontradicted medical 

testimony is controlling upon an ALJ except in cases of “observable causation.” 

Id. at 496. Here, Stogner testified that his fall on June 16th occurred, as the 

ALJ recounted, “due to his left knee failing to ‘lock’ on the forward motion of 

his left leg and buckling, causing him to fall hard on his left side.” In other 

words, the mechanical failure of Stogner’s knee brace was the proximate cause 

of the fall, not a neurological issue such as a seizure. As such, there was a 

readily observable causation present in Stogner’s June 16th fall and Stogner’s 

own testimony is competent proof for an ALJ to attribute the fall to mechanical 

failure of a knee brace. 
7

Cepero also does not compel reversal. That case stands for the rule that 

“where it is irrefutable that a physician's history regarding work-related 

causation is corrupt due to it being substantially inaccurate or largely 

incomplete, any opinion generated by that physician on the issue of causation 

cannot constitute substantial evidence.” 132 S.W.3d at 842. But we also 

included an oft-overlooked caveat that “Medical opinion predicated upon such 

erroneous or deficient information that is completely unsupported by any other 

credible evidence can never, in our view, be reasonably probable.” Id.

(Emphasis added). As just noted, Dr. Zerga’s 2017 report is entirely consistent 

with the original opinion and order from 1993, despite Dr. Zerga explicitly 

stating he did not have access to prior records regarding the 1990 injury 

specifically. Therefore, there is no basis to hold he “irrefutably” had an 

inadequate medical history in 2017. Moreover, the 1993 original opinion and 

order is credible evidence supporting Dr. Zerga’s report.

Ellis has not cited to any statute or case law that prohibits an ALJ in a 

medical fee dispute from considering the medical testimony from the original 

case or prior medical fee disputes, or the findings of previous ALJ’s where 

available. Indeed, we would expect such records to be utilized. The ALJ below 

used Dr. Zerga’s report “as a reasonable explanation for the falls which is 

consistent with Plaintiff’s current statements.” And although Dr. Zerga did 

believe seizures had caused Stogner to fall in the past, he also recounted 

Stogner’s attribution of hundreds of falls to his knee brace, which is exactly 

what Stogner states caused the June 16th fall. Ellis reads too much into the 
8

ALJ’s orders when it states the ALJ used Dr. Zerga’s report to attribute 

causation to “neurologic effects[.]” No such finding was ever made by the ALJ in 

this particular medical fee dispute.

To put it plainly, Stogner would not wear a knee brace but for the 1990 

fall, and but for the mechanical failure of the knee brace he would not have 

fallen on June 16, 2020. Therefore, the latter is a direct and natural 

consequence of the former. This finding is supported by substantial evidence,

and we cannot say Ellis’ evidence compels a contrary finding. Special Fund v. 

Francis, 708 S.W.2d 641, 643 (Ky. 1986). Ellis’ only evidence that the fall was 

not a direct and natural consequence of the 1990 injury was Dr. Gart’s opinion 

stemming from a peer review of one other doctor’s medical reports. But as the 

Board accurately pointed out, Dr. Gart’s attribution of the fall to osteoarthritis

in the knee wholly neglects to consider that the osteoarthritis itself may be at 

least partially related to Stogner’s 1990 injury—a conclusion so obvious that 

the Board believed Dr. Gart was the one who seemingly had an inadequate 

medical history, not Dr. Zerga. In any event, Dr. Gart’s report by itself simply 

does not compel a conclusion that the June 16th fall was not a direct and 

natural consequence of Stogner’s 1990 injury. And since the ALJ’s ruling does 

not otherwise conflict with Kingery or Cepero, we affirm. 

All sitting. All concur. 
9

COUNSEL FOR APPELLANT:

Matthew J. Zanetti

Ferreri Partners, PLLC

COUNSEL FOR APPELLEE, Robert Stogner:

Jeffrey A. Roberts

ADMINISTRATIVE LAW JUDGE:

John McCracken

WORKERS’ COMPENSATION BOARD:

Michael Wayne Alvey, 

Chairman

APPELLEE:

DR. JOHN RUXER/ORTHOPAEDIC INSTITUTE OF WESTERN KENTUCKY

APPELLEE: 

DR. ROBERT HAYDEN

APPELLEE:

DR. STEPHEN COMPTON