IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINIOl\,I IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION 

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

DECISION IN THE FILED DOCUMENT AND A COPY OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: FEBRUARY 16, 2017 

NOT TO BE PUBLISHED 

~uptttttt filnurf nf ~tnfurku 

2016-SC-000072-WC 

RIVER VIEW COAL, LLC 

V. 

ON APPEAL FROM COURT OF APPEALS 

CASE NO. 2015-CA-000821-WC 

WORKERS' COMPENSATION BOARD 

NO. 13-WC-92232 

ANGELA WHITLOCK; 

HON. WILLIAM J. RUDLOFF, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

APPELLANT 

APPELLEES 

An Administrative Law Judge (AW) found Angela Whitlock to be 

permanently totally disabled as a result of work-related physical injuries. The 

Workers' Compensation Board (the Board) and the Court of Appeals affirmed 

the AW's finding of permanent total disability. River View Coal, LLC (River 

View) argues on appeal to this Court that the AW's finding of total disability 

was not supported by substantial evidence. Whitlock argues that this matter is 

not final and appealable because the Board vacated the AW's award of 

temporary total disability and medical expense benefits and remanded for 

additional findings on those issues and for findings on an alleged psychological 

claim. For the following reasons, we hold that the AW's opinion is final and 

appealable, and we affirm the Court of Appeals. 
I. BACKGROUND. 

Whitlock completed the 8th grade, earned her GED, and received 

certification as an early childhood education instructional aide. She has 

worked as an instructional aide with Head Start and in several Kentucky 

county school systems and as an underground coal miner for River View. 

While employed at River View, Whitlock suffered injuries to her left leg 

(February 3, 2012); to her nose (May 9, 2012 and December 18, 2012); to her 

right hip and leg (May 18, 2012); and to her low back (March 4, 2013). On 

April 3, 2014, Whitlock filed an Application for Resolution of Injury Claim 

alleging that she suffered the preceding physical injuries as well as a workrelated psychological injury. River View timely filed a Notice of Claim Denial 

and the parties proceeded to take proof, which we summarize below. 

A. Whitlock's testimony. 

Whitlock testified that her jobs as an instructional aide required her to 

assist teachers with instruction, to lift children, and to clean classrooms. Her 

job for River View as a "pinner" required her to work underground lifting and 

maneuvering heavy items while often working in a bent, stooped, or kneeling 

position. 

Whitlock testified that she had not missed any significant amount of 

work as a result of her 2012 injuries. However, after her March 4, 2013 lowback injury, Whitlock missed approximately two months of work, returning to 

work in a different job category and working until July 11, 2013. After last 

working for River View, Whitlock collected short-term disability and 

2 
unemployment benefits. When her short-term disability benefits stopped, 

Whitlock began working part-time as a cook, waitress, and cashier at her 

sister's restaurant. According to Whitlock, she had no set schedule but worked 

approximately 10 to 15 hours per week. In lieu of paying Whitlock any wages, 

the sister helped pay Whitlock's bills. Whitlock admitted that she continued to 

receive unemployment benefits while working at the restaurant and that she 

had not reported this work activity to the Unemployment Compensation 

Commission. 

In terms of her physical condition, Whitlock testified that she had 

continuous low-back pain with radiation of pain into both legs and occasional 

bilateral leg numbness/tingling. 1 According to Whitlock, her low back and 

lower extremity symptoms disrupt her sleep and increase with activity, which 

makes it difficult for her to maintain her house and yard. Based on her 

physical limitations, Whitlock does not believe that she could return to work as 

a coal miner or to any of her other pre-injury jobs. She also testified that she 

could not perform restaurant work on any regular or sustained basis. 

B. Medical proof. 

Whitlock filed medical records from her treating physicians - Drs. 

Wallace, Canlas, and Oropilla- and an independent medical evaluation report 

1 We note that Whitlock also complained of right shoulder and arm pain. 

However, she did not allege a specific injury to her shoulder or arm and the AW did 

not base his opinion on Whitlock's shoulder and arm complaints. Therefore, we do not 

consider those complaints in this opinion. 

3 
from Dr. Charles Barlow.2 Dr. Wallace, Whitlock's family physician, treated 

Whitlock following the back injury, noted improvement in Whitlock's 

symptoms, and released Whitlock to return to work on April 25, 2013. 

However, Whitlock continued to complain of back pain, and Dr. Wallace 

referred her to Dr. Canlas, a physical medicine and rehabilitation specialist, on 

June 3, 2013. It appears that Dr. Canlas performed a series of trigger point 

and SI joint injections and, when Whitlock failed to improve, Dr. Canlas 

referred her to Dr. Oropilla, a pain management physician. Dr. Oropilla 

performed several steroid injections, which provided only temporary relief of 

Whitlock's symptoms. None of these physicians specifically addressed whether 

Whitlock has any permanent impairment rating or permanent restrictions. 

Dr. Barlow examined Whitlock on June 11, 2014. Whitlock complained 

to Dr. Barlow of low-back pain with radiation into both legs, right worse than 

left. Dr. Barlow's examination revealed full range of motion, no loss of 

sensation, no reflex deficits, and complaints of pain with straight leg raising. 

Dr. Barlow reviewed Whitlock's medical records and noted MRI findings of 

bulging discs at L2-3 and L3-4 with an annular tear and nominal protrusion at 

L4-5 but no nerve root compression. Based on his examination and review of 

the medical records, Dr. Barlow made pertinent diagnoses of right hip pain, 

degenerative lumbar disc disease with a bulging disc, and bilateral 

radiculopathy. He assigned Whitlock a 6% impairment rating for her low-back 

2 Whitlock also filed reports from physicians who treated her for her 2012 

injuries. However, because the AW did not factor those injuries into his disability 

award, we do not summarize them herein. 

4 
injury and stated that she should avoid: bending and twisting at the waist; 

lifting more than 40 pounds; and pushing/pulling more than 60 pounds. Dr. 

Barlow did not assign Whitlock any impairment rating or impose any 

restrictions for her other injuries. 

River View filed a letter dated December 10, 2013, from Dr. Canlas, 

stating that Whitlock did not "meet the criteria for disability" and that she 

should be able to "pursue some form of part-time or full-time employment." 

River View also filed the independent medical report of Dr. Thomas Huhn. 

Whitlock complained to Dr. Huhn of low-back pain with radiation into both 

legs and occasional leg numbness. Whitlock reported that her symptoms were 

aggravated by movement and lifting and relieved by use of a TENS unit and 

heat. Dr. Huhn's examination revealed tenderness to palpation in the low back 

but normal muscle tone, strength, and sensation in the back and lower 

extremities. Based on his examination and review of Whitlock's medical 

records, Dr. Huhn made a diagnosis of bulging lumbar discs with no nerve root 

impingement, and he assigned Whitlock no impairment rating and imposed no 

restrictions for any of her other injuries. 

We note that River View also filed an independent psychological 

evaluation report from Dr. Ruth. However, the AW did ·not address Whitlock's 

psychological claim, and the Board remanded this matter to the AW with 

instructions to do so. Therefore, we do not further address Whitlock's alleged 

psychological injury. 

5 
The AW rendered an opinion in which he summarized Whitlock's 

testimony and records/reports from Drs. Barlow, Canlas, Ruth, and Huhn. 

Based on his review, the AW stated that he found Dr. Barlow to be the most 

"persuasive and compelling," and that Whitlock has a 6% impairment rating. 

The AW also found Whitlock's testimony regarding her pain, her limitations, 

and her inability to return to any of her past work to be "credible and 

convincing." Based on that testimony and Dr. Barlow's report, the AW found 

that Whitlock is permanently totally disabled. 

River View filed a petition for reconsideration asking the AW to make 

additional findings, noting that the AW had not mentioned evidence favorable 

to its position. Although the AW believed that River View was impermissibly 

re-arguing the merits in its petition, he issued a second opinion and order. In 

that opinion and order, the AW reiterated much of his original opinion and 

order and reached the same conclusion. 

River View appealed to the Board, which affirmed the AW's finding of 

permanent total disability. However, the Board found that the AW's award of 

medical benefits was not sufficiently specific. The Board also noted that, 

without any explanation, the AW awarded temporary total disability benefits 

for a period after Whitlock had returned to work for River View. Finally, the 

Board noted that the AW had not addressed Whitlock's psychological injury 

claim. Therefore, the Board remanded those portions of Whitlock's claim to the 

AW for additional findings of fact and conclusions of law. River View sought 

6 
review by the Court of Appeals, which affirmed. We set forth additional 

background information as necessary below. 

II. STANDARD OF REVIEW. 

"Whether the Board's opinion is final and appealable is a question of law, 

and we review questions of law de novo." Hampton v. Flav-0-Rich Dairies, 489 

S.W.3d 230, 232 (Ky. 2016), reh'g denied (June 16, 2016). However, as to the 

substance of the AW's opinion, if the party with the burden of proof is 

successful before the AW, the question on appeal is whether that opinion is 

supported by substantial evidence. Whittaker v. Rowland, 998 S.W.2d 479, 

481 (Ky. 1999). "Substantial evidence has been defined as some evidence of 

substance and relevant consequence, having the fitness to induce conviction in 

the minds of reasonable men." Id. at 481-82. 

III. ANALYSIS. 

A. Finality. 

Whitlock argues, albeit summarily, that the Board's opinion is not final 

because it vacated and remanded, in part, this matter to the AW for additional 

findings. As we recently held, when the Board fully vacates and remands, the 

Board's opinion is final and appealable. Hampton, 489 S.W.3d at 234. This is 

so because vacating and remanding either deprives a party of a vested right or 

authorizes or directs the AW to reach a different conclusion. Id. We see no 

difference when the Board only partially vacates and remands. Here, the Board 

vacated, in part, Whitlock's entitlement to temporary total disability and 

medical expense benefits, thereby divesting her of her right to those benefits. 

7 
Furthermore, the board authorized the AW to reach a different conclusion 

regarding Whitlock's entitlement to those benefits. Thus, the Board's opinion 

was final and appealable. 

B. Finding of permanent total disability. 

The AW, as fact finder, has the sole authority to judge the weight, 

credibility, substance, and inferences to be drawn from the evidence. 

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). In 

drawing those inferences and reaching a decision, the AW is free to choose to 

believe or disbelieve parts of the evidence from the total proof, no matter which 

party offered it. Brockway v. Rockwell International, 907 S.W.2d 166, 169 (Ky. 

App. 1995). While "a party may note evidence which would have supported a 

conclusion contrary to the AW's decision, such evidence is not an adequate 

basis for reversal on appeal." Ira A. Watson Dept. St~re v. Hamilton, 34 S.W.3d 

48, 52 (Ky. 2000). Thus, a party seeking to reverse an AW's finding in favor of 

an injured employee must establish that the decision was "so unreasonable 

under the evidence that it must be viewed as erroneous as a matter of law." Id. 

We analyze River View's argument that the AW's finding of p·ermanent total 

disability is not supported by substantial evidence with the preceding 

standards in mind. 

KRS 342.0011(1 l)(c) defines permanent total disability as "the condition. 

of an employee who, due to an injury, has a permanent disab~lity rating and 

has a complete and permanent inability to perform any type of work as a result 

of an injury .... " Work is defined as "providing services to another in return 

8 
for remuneration on a regular and sustained basis in a competitive economy." 

KRS 342.0011(34). To determine if an employee meets the preceding criteria, 

an AW must make 

an individualized determination of what the worker is and is not 

able to do after recovering from the work injury . . . . [That 

determination] necessarily includes a consideration of factors such 

as the worker's post-injury physical, emotional, intellectual, and 

vocational status and how those factors interact. It also includes a 

consideration of the likelihood that the particular worker would be 

able to find work consistently under normal employment 

conditions. A worker's ability to do so is affected by factors such 

as whether the individual will be able to work dependably and 

whether the worker's physical restrictions will interfere with 

vocational capabilities. 

Hamilton, 34 S.W.3d at 51. In assessing an employee's ability to perform work, 

the AW "must necessarily consider the [employee's] medical condition" but is 

not required to rely on the opinions of the medical experts. Id. at 52. The AW 

may also consider the employee's testimony which "is competent evidence of 

[her] physical condition and of [her] ability to perform various activities both 

before and after being injured." Id. 

The AW found that Whitlock suffered a work-related injury and, relying 

on Dr. Barlow's opinion, that she has a 6% permanent impairment rating. The 

AW took that impairment rating into consideration along with Whitlock's age, 

education, work history, the restrictions imposed by Dr. Barlow, and Whitlock's 

self-imposed restrictions and concluded that she is unable to perform any work 

on a sustained basis. That is all he was required to do and, although we might 

have reached a different conclusion, we cannot say that the AW's conclusion 

was erroneous as a matter of law. 

9 
Although the preceding disposes of this appeal, for the sake of 

completeness, we next address each of River View's specific arguments. First, 

River View argues that Whitlock's employment at her sister's restaurant 

indicates that she was abl~ to perform work as defined by the statute and 

negates any entitlement to a total disability award. If Whitlock had been 

performing that work on a regular and sustained basis, River View would have 

a point. However, Whitlock testified that: she had no regular schedule and 

only worked when she needed help paying a bill or when her sister needed 

help; she could leave work whenever she felt the need; she only worked a few 

hours on the days she worked; and she could not perform that work on a fulltime or regular basis. The AW, as he was entitled to do, believed Whitlock and 

found that she could not perform any work, as defined by the statute, which 

included the restaurant job. Furthermore, we note that "a worker is not 

required to be homebound in order to be found to be totally occupationally 

disabled." Id. at 51. Thus, the fact that Whitlock may have performed less 

than regular work at her sister's restaurant in exchange for help paying her 

bills does not, as a matter of law, negate Whitlock's entitlement to a permanent 

total disability award. 

Second, River View argues that the AW erred as a matter of law because 

Whitlock was 40 years of age at the time of the low-back injury and has 

certification as an instructional aide, which would enable her to perform work 

as defined by the Act. Certainly, the AW could have taken those factors into 

consideration and cotn.e to that conclusion. However, he was not compelled to 

10 
do so. We note that the totally disabled claimant in Hamilton was 39 years of 

age and had a high school education, Id. at 50, as was the totally disabled 

claimant in McNutt Construction/Fi.rst General Services v. Scott, 40 S.W.3d 854, 

856 (Ky. 2001). Thus, while age and education are significant factors that an 

AW must consider they are not dispositive, and this argument is not 

persuasive. 

Third, River View argues that Whitlock's "medical restrictions" do not 

prevent her from performing her past work. As the AW noted, Dr. Barlow 

restricted Whitlock from bending and twisting, lifting more than 40 pounds, 

and pushing/pulling more than 60 pounds. Whitlock testified that her job as a 

coal miner required her to lift heavy items and to work at times in a bent, 

stooped, or kneeling position. Dr. Barlow's restrictions would have prevented 

her from performing this type of work. As to her work as an instructional aide, 

Whitlock testified that she assisted classroom teachers, which required her to 

lift children and clean classrooms. Dr. Barlow's restrictions against bending, 

twisting, and lifting more than 40 pounds would preclude this type of work. 

Arguably, Dr. Barlow's restrictions might not have precluded Whitlock from 

performing restaurant work; however, as noted above, the AW was not 

required to rely solely on the medical restrictions. He was permitted to rely on 

Whitlock's testimony, which he did. Thus, this argument is not persuasive. 

Fourth, River View argues that the AW's opinion is erroneous because 

even Whitlock did not believe she was totally disabled. As evidence of this, 

River View notes Whitlock's testimony that she had applied for a number of 

11 
jobs, some of which arguably would require exertion beyond her restrictions. 

This argument ignores three important facts. First, it is the AW's belief 

regarding the extent of disability that controls, not the claimant's. Second, 

although she admitted applying for those jobs, Whitlock testified that she did 

not believe she could actually perform them. Third, Whitlock admitted that she 

had neither the training nor experience to perform several of the jobs for which 

she applied. Thus, this argument is not persuasive. 

Finally, River View argues that the Court of Appeals ignored the "fact" 

that Whitlock left her job in July 2013 and did not return because of alleged 

sexual harassment, not because of her injury. As River View notes, there is 

evidence in the record that Whitlock had been sexually harassed during the 

time between her back injury and her last day of work. Furthermore, there is 

evidence in the record that Whitlock suffered depression and anxiety because 

of the alleged sexual harassment, and she admitted the sexual harassment was 

part of the reason she did want to continue working at River View. However, 

Whitlock also testified that the primary reason she did not continue working at 

River View was because "I hurt every day .... My whole life has changed. I go 

to bed at night in pain. I sleep on a heating pad and a stupid, big, old wedge 

pillow and everything else. I don't ever sleep comfortable." The AW could have 

chosen to believe that Whitlock left work at River View and did not return 

because of the sexual harassment; however, he would have had to ignore 

Whitlock's primary reason for doing so to make the choice. As noted above, an 

AW is free to pick and choose what evidence to believe and nothing would have 

12 
compelled him to pick Whitlock's secondary reason for leaving and not 

returning rather than her primary one. Thus, the Court of Appeals did not err 

by failing to recognize that the record contained evidence that Whitlock stopped 

working at River View and did not return to work there for non-injury-related 

reasons. 

IV. CONCLUSION. 

For the foregoing reasons, we affirm the Court of Appeals. 

All sitting. Minton, C.J., Cunningham, Hughes, Keller, Venters and 

Wright, JJ., concur. VanMeter, J., dissents without opinion. 

COUNSEL FOR APPELLANT: 

Brandy Hassman 

COUNSEL FOR APPELLEE: 

Lucius P. Hawes, Jr. 

13