# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANTTO THE RULES OF CIVIL PROCEDURE PROMULGATED BYTHE SUPREME COURT, CR 76.28(4)(C), THIS OPINIOl\,I IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BYTHE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENTAND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENTTO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: FEBRUARY 16, 2017 NOT TO BE PUBLISHED 

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RIVER VIEW COAL, LLC



### V. ON APPEAL FROM COURT OFAPPEALS 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

AnAdministrative LawJudge (AW) found AngelaWhitlock to be permanently totally disabled as a result ofwork-related physical injuries. The Workers' Compensation Board (the Board) and the Court ofAppeals affirmed theAW's finding ofpermanenttotal disability. River View Coal, LLC (River View) argues on appeal to this Court that theAW's finding oftotal disability
was not supported by substantial evidence. Whitlock argues thatthis matter is not final and appealable because the Board vacated theAW'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 ofAppeals.

### 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 anApplication for Resolution ofInjury Claim alleging that she suffered the precedingphysical injuries as well as a workrelated psychological injury. River View timely filed a Notice ofClaim Denial and the parties proceeded to take proof, which we summarize below. 

### A. Whitlock's testimony. Whitlock testified that herjobs 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 workunderground lifting and maneuvering heavy items while often working in a bent, stooped, orkneeling position. Whitlock testified that she had not missed any significant amount of work as a result ofher 2012 injuries. However, after her March 4, 2013 lowbackinjury, Whitlockmissed approximately two months ofwork, returning to work in a differentjob category and workinguntilJuly 11, 2013. After last working for River View, Whitlock collected short-term disability and
2unemploymentbenefits. When her short-term disability benefits stopped, Whitlock began workingpart-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 perweek. In lieu ofpayingWhitlock anywages, the sisterhelped payWhitlock'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 ofherphysical condition, Whitlock testified that she had continuous low-back pain with radiation ofpain into both legs and occasional bilateralleg 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 herhouse andyard. Based on her physical limitations, Whitlock does not believe that she could return to work as
a coal miner or to any ofherotherpre-injuryjobs. She also testified that she could not perform restaurantwork on any regular or sustained basis. 

### B. Medical proof. Whitlock filed medical records from her treatingphysicians

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

1 We note thatWhitlock also complained ofright shoulder and armpain. However, she did not allege a specificinjuryto her shoulder or arm and the AW did not base his opinion onWhitlock's shoulder and arm complaints. Therefore, we do not consider those complaintsin this opinion. 3from Dr. Charles Barlow.2 Dr. Wallace, Whitlock's family physician, treated Whitlock following the backinjury, noted improvementin Whitlock's symptoms, and released Whitlockto return to work onApril 25, 2013. However, Whitlock continued to complain ofbackpain, 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 oftrigger point and SIjointinjections and, when Whitlock failed to improve, Dr. Canlas referred her to Dr. Oropilla, a pain managementphysician. Dr. Oropilla performed several steroid injections, which provided only temporary reliefof Whitlock's symptoms. None ofthese physicians specifically addressed whether Whitlock has any permanentimpairmentrating orpermanentrestrictions. Dr. Barlowexamined Whitlock onJune 11, 2014. Whitlock complained to Dr. Barlowoflow-back pain with radiation into bothlegs, right worse than left. Dr. Barlow's examination revealed full range ofmotion, no loss of sensation, no reflex deficits, and complaints ofpain with straightleg raising. Dr. Barlowreviewed Whitlock's medical records and noted MRI findings of bulging discs at L2-3 and L3-4 with an annulartear and nominal protrusion at L4-5 butno nerve root compression. Based on his examination and review of the medical records, Dr. Barlowmade pertinent diagnoses ofright hip pain, degenerative lumbar disc disease with a bulging disc, and bilateral radiculopathy. He assigned Whitlock a 6% impairmentratingfor her low-back

2 Whitlock also filed reports from physicians who treated herfor her 2012 injuries. However, because the AW did not factor those injuries into his disability award, we do not summarize themherein. 4injury and stated that she should avoid: bending and twisting at the waist; lifting more than 40 pounds; and pushing/pullingmore than 60 pounds. Dr. Barlow did not assign Whitlock any impairmentrating orimpose any restrictions for her otherinjuries. River View filed a letter dated December 10, 2013, from Dr. Canlas, statingthatWhitlock did not "meetthe criteriafor disability" and that she should be able to "pursue some form ofpart-time orfull-time employment." RiverView also filed the independent medical report ofDr. Thomas Huhn. Whitlock complained to Dr. Huhn oflow-backpain with radiation into both legs and occasional leg numbness. Whitlock reported that her symptoms were aggravated by movement and lifting and relieved byuse ofa TENS unit and heat. Dr. Huhn's examination revealed tenderness to palpation in the low back butnormal muscle tone, strength, and sensation in the back and lower extremities. Based on his examination and review ofWhitlock's medical records, Dr. Huhn made a diagnosis ofbulging lumbar discs with no nerve root impingement, and he assigned Whitlock no impairmentrating and imposed no restrictions for any ofher otherinjuries. We note that River View also filed an independentpsychological 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.

5The AW rendered an opinion in which he summarized Whitlock's testimony and records/reports from Drs. Barlow, Canlas, Ruth, and Huhn. Based on hisreview, the AW stated that he found Dr. Barlowto be the most "persuasive and compelling," and thatWhitlock has a 6% impairmentrating. TheAW also found Whitlock's testimony regarding herpain, herlimitations, and her inability to return to any ofher pastwork to be "credible and convincing." Based on thattestimony and Dr. Barlow's report, the AW found thatWhitlock is permanentlytotally disabled. RiverView filed a petition for reconsideration askingtheAW to make additional findings, notingthat theAW 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 ofhis 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 addressedWhitlock's psychological injury claim. Therefore, the Board remanded those portions ofWhitlock's claim to the AW for additional findings offact and conclusions oflaw. River View sought

6review by the Court ofAppeals, which affirmed. We setforth additional background information as necessary below. II. STANDARD OF REVIEW. "Whetherthe Board's opinion is final and appealable is a question oflaw, and we review questions oflaw 

### de novo." Hampton v. Flav-0-RichDairies, 489 S.W.3d 230, 232 (Ky. 2016), 

### reh'g denied (June 16, 2016). However, as to the substance ofthe AW's opinion, ifthe partywith the burden ofproofis successful before theAW, the question on appeal iswhether that opinion is supported by substantial evidence. 

### Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). "Substantialevidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds ofreasonable men." Id. at 481-82. III. ANALYSIS. A. Finality. Whitlock argues, albeit summarily, that the Board's opinion is not final because itvacated and remanded, in part, this matter to theAW 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 ofa vested right or authorizes ordirects theAW to reach a different conclusion. Id. We see no difference when the Board only partiallyvacates and remands. Here, the Board vacated, in part, Whitlock's entitlementto temporary total disability and medical expense benefits, thereby divesting her ofher right to those benefits.
7Furthermore, the board authorized the AW to reach a different conclusion regardingWhitlock's entitlementto those benefits. Thus, the Board's opinion
was final and appealable. 

### B. Finding ofpermanent total disability. TheAW, as fact finder, has the sole authority tojudge the weight, credibility, substance, and inferences to be drawn from the evidence. 

### ParamountFoods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). In drawing those inferences and reaching a decision, theAW is free to choose to believe or disbelieve parts ofthe evidence from the total proof, no matterwhich party offered it. 

### Brockway v. RockwellInternational, 907 S.W.2d 166, 169 (Ky. App. 1995). While "apartymay note evidence which would have supported a conclusion contraryto the AW's decision, such evidence is not an adequate basis for reversal on appeal." 

### IraA. 

### Watson Dept. St~re v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). Thus, a party seekingto reverse anAW's finding in favor of
an injured employee must establish that the decision was "so unreasonable under the evidence that it mustbe viewed as erroneous as a matter oflaw." 

### Id. We analyze River View's argument that theAW's finding ofp·ermanent total disability is not supported by substantial evidence with the preceding standards in mind. KRS 342.0011(1l)(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 ofwork as a result of an injury
...." Work is defined as "providing services to another in return 8for remuneration on a regular and sustained basis in a competitive economy." KRS 342.0011(34). To determine if an employee meets the preceding criteria,
anAW mustmake
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 offactors such as the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact. It also includes a consideration ofthe 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" butis not required to rely on the opinions ofthe medical experts. Id. at 52. The AW may also considerthe employee's testimonywhich "is competentevidence of [her] physical condition and of [her] ability to performvarious activities both before and after beinginjured." Id. The AW found thatWhitlock suffered a work-related injury and, relying
on Dr. Barlow's opinion, that she has a 6% permanentimpairment rating. The AW took thatimpairmentrating 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 anywork
on a sustained basis. Thatis all he was required to do and, although we might have reached a different conclusion, we cannot say that theAW's conclusion
was erroneous as a matteroflaw.
9Although the preceding disposes ofthis appeal, for the sake of completeness, we next address each ofRiver View's specific arguments. First, River View argues thatWhitlock's employment at her sister's restaurant indicates that she was abl~ to perform work as defined by the statute and negates any entitlementto a total disability award. IfWhitlock had been performing thatwork on a regular and sustained basis, RiverView would have
a point. However, Whitlock testified that: she had no regular schedule and onlyworked when she needed help paying a bill orwhen her sister needed help; she could leave work whenever she felt the need; she onlyworked a few hours on the days she worked; and she could not perform thatwork on a fulltime orregularbasis. The AW, as he was entitled to do, believedWhitlock and found that she could not perform anywork, as defined by the statute, which included the restaurantjob. Furthermore, we note that "aworker 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 oflaw, negate Whitlock's entitlementto a permanent total disability award. Second, RiverView argues that theAW erred as a matter oflaw because Whitlock was 40 years ofage at the time ofthe low-back injury and has certification as an instructional aide, which would enable her to perform work
as defined by the Act. Certainly, theAW could have taken those factors into consideration and cotn.e to that conclusion. However, he was not compelled to 10do so. We note that the totally disabled claimantin Hamiltonwas 39 years of age and had a high school education, Id. at 50, as was the totally disabled claimantin McNutt Construction/Fi.rst General Services v. Scott, 40 S.W.3d 854, 856 (Ky. 2001). Thus, while age and education are significantfactors that an AW must considerthey are not dispositive, and this argument is not persuasive. Third, River View argues thatWhitlock's "medicalrestrictions" do not prevent her from performingher pastwork. As theAW noted, Dr. Barlow restricted Whitlock from bending and twisting, lifting more than 40 pounds, and pushing/pullingmore than 60 pounds. Whitlock testified that herjob as a coal minerrequired her to lift heavy items and to work at times in a bent, stooped, orkneeling position. Dr. Barlow's restrictions would have prevented her from performing this type ofwork. As to herwork 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 ofwork. Arguably, Dr. Barlow's restrictions might not have precluded Whitlock from performingrestaurantwork; however, as noted above, theAW 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, RiverView argues that theAW's opinion is erroneous because
even Whitlock did not believe she was totally disabled. As evidence ofthis, River View notes Whitlock's testimony that she had applied for a number of 11jobs, some ofwhich arguablywould require exertionbeyond herrestrictions. This argument ignores three importantfacts. First, it is the AW's belief regarding the extent ofdisability that controls, not the claimant's. Second, although she admitted applying for thosejobs, Whitlock testified that she did not believe she could actually perform them. Third, Whitlock admitted that she had neither the trainingnor experience to perform several ofthejobs for which she applied. Thus, this argumentis not persuasive. Finally, RiverView argues that the Court ofAppeals ignored the "fact" thatWhitlockleft herjob inJuly 2013 and did not return because ofalleged sexual harassment, not because ofherinjury. As RiverView notes, there is evidence in the record thatWhitlock had been sexuallyharassed during the time between herbackinjury and her last day ofwork. Furthermore, there is evidence in the record thatWhitlock suffered depression and anxiety because ofthe alleged sexual harassment, and she admitted the sexual harassment was part ofthe reason she did want to continue working at RiverView. However, Whitlock also testified that the primaryreason she did not continue working at RiverView was because "I hurt every day
.... My whole life has changed. I go to bed at night in pain. I sleep on a heatingpad and a stupid, big, old wedge pillow and everything else. I don't ever sleep comfortable." TheAW could have chosen to believe thatWhitlock left work at River View and did not return because ofthe 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 nothingwould have 12compelled him to pickWhitlock's secondary reason for leaving and not returning rather than herprimary one. Thus, the Court ofAppeals did not err by failing to recognize that the record contained evidence thatWhitlock stopped working at RiverView and did notreturn to work there for non-injury-related
reasons. IV. CONCLUSION. For the foregoing reasons, we affirm the Court ofAppeals. All sitting. Minton, C.J., Cunningham, Hughes, Keller, Venters and Wright, JJ., concur. VanMeter, J., dissents without opinion.

COUNSEL FOR APPELLANT: Brandy Hassman COUNSEL FORAPPELLEE: Lucius P. Hawes, Jr.

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