RENDERED: JANUARY 22, 2021; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2020

- CA

- 0660

- WC

CHARLES DAVID MCGEORGE APPELLANT

v. PETITION FOR REVIEW OF A DECISION

OF THE WORKERS ’ COMPENSATION BOARD

ACTION NO. WC

- 13

- 87035

WAL

- MART; CHRIS DAVIS; AND WORKERS ’ COMPENSATION BOARD APPELLEES
AND N O. 2020

- CA

- 0715

- W C
WAL

- MART CROSS

- APPELLANT

v. CROSS

- PETITION FOR REVIEW OF A DECISION

OF THE WORKERS ’ COMPENSATION BOARD

ACTION NO. WC

- 13

- 87035

CHARLES DAVID MCGEORGE; CHRIS DAVIS; AND WORKERS ’ COMPENSATION BOARD CROSS

- APPELLEES- 2

- OPINION AFFIRMING
**   **  **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES. DIXON, JUDGE: Charles David McGeorge petitions , and Wal

- Mart cross

petitions , for review of the Workers’ Compensation Board (Board) opinion entered April 17, 2020, affirming the opinion, award , and order on reopening , and order denying reconsideration, entered October 14, 2019, and November 1 3 , 2019, respectively, by the Administrative Law Judge (ALJ). Following review of the record, briefs , and law, we affirm

.

FACTS AND PROCEDUR AL BACKGROUN D
O n April 13, 2013 , McGeorge injured his lumbar spine at L5

- S1 while working for Wal

- Mart as an order filler . He pursued a workers’ compensation
claim , and an award of temporary total disability (TTD) , permanent partial disability (PPD) , and medical benefits was entered on June 30, 2014, based on an 8% impairment rating

. The ALJ determined McGeorge was unable to return to the type of work he performed on the date of injury but did not find him to be permanently , totally disabled

.

On June 13 , 201 6 , McGeorge moved to reopen his claim , alleging a worsening of his condition and “that his occupational disability has significantly increased and that he is now permanently and totally disabled from any gainful- 3

-

employment.” ROA 1 573. On August 24, 2018, fo llowing a hearing, the ALJ entered an interlocutory opinion and order finding the spinal fusion surgery at L5

- S1 proposed by Dr. Amr O. El

- Nagger to be compensable and award ing McGeorge TTD benefits “from the date of the surgery through the date the Plaint iff reaches [maximum medical improvement] or returns to work.” ROA 1224. McGeorge underwent the surgery on November 16, 2018. Pre

- surgery , McGeorge had back pain with weakness and tingling in his legs and feet ; p ost

- surgery, McGeorge’s right

- sided sympt oms resolved , but he still has back pain and occasional tingling and numbness in his left leg and foot.

A final hearing was held on August 21, 2019. On October 14, 2019, the ALJ entered an opinion, award , and order finding McGeorge sustained an increase of impairment rating of 12%, for a total of 20%. The ALJ further found
that McGeorge is not permanently, totally disabled. Both Wal

- Mart and McGeorge petitioned the ALJ for reconsideration of this order. Wal

- Mart asserted the ALJ erred in awarding incre ased benefits from the date of reopening instead of the date of surgery , while McGeorge claimed the ALJ erred in not finding him permanently, totally disabled. On November 13, 2019, the ALJ entered an order denying the parties’ requests for reconsideratio n. McGeorge appealed to the
Board , and Wal

- Mart cross

- appealed , using the same arguments presented to the

1 Record on appeal.- 4

-

ALJ in their respective petitions for reconsideration . On April 17, 2020, the Board entered its opinion affirming the ALJ. This petition and cross

- petition followed. STANDARD OF REVIEW The appropriate standard of review for workers’ compensation claims
was summarized in Bowerman v. Black Equi p ment Co

. , 297 S.W.3d 858, 866

- 67 (Ky. App. 2009). Appellate review of any workers’ compensation

decision is limited to correction of the ALJ when the ALJ has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustic e. Western Baptist Hosp. v. Kelly , 827 S.W.2d 685, 687

- 88 (Ky. 1992). Our standard of review differs in regard to appeals of an ALJ’s decision concerning a question of law or a mixed question of law and fact vis

- à

- vis an ALJ’s decision regarding a questi on of fact. The first instance concerns questions of law or mixed questions of law and fact. As a reviewing court, we are bound neither by an ALJ’s decisions on questions of law or an ALJ’s interpretation and application of the law to the facts. In either case, our standard of review is de novo

. Carroll v. Meredith , 59 S.W.3d 484, 489 (Ky. App. 2001); Cinelli v. Ward , 997 S.W.2d 474, 476 (Ky. App. 1998). De novo review allows appellate courts greater latitude in reviewing an ALJ’s decision. [ Purchase Transp

. Serv s . v. Estate of Wilson , 39 S.W.3d 816, 817

- 18 (K y. 2001); Uninsured Emp s. ’ Fund v. Garland , 805 S.W.2d 116, 117 (Ky. 1991) ]

. The second instance concerns questions of fact. [Kentucky Revised Statutes ( KRS )] 342.285 designates the ALJ as finder of fact, an d has been construed to mean that the factfinder has the sole discretion to determine the- 5

- quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from the evidence. Paramount Foods, Inc. v. Burkhardt , 695 S.W.2d 418, 419 (Ky. 1985); [ McCloud v. Beth

- Elkhorn Corp

. , 514 S.W.2d 46, 47 (Ky. 1974) ] . Moreover, an ALJ has sole discretion to decide whom and what to believe, and may reject any testimony and believe or disbelieve various parts of the evidence, regar dless of whether it comes from the same witness or the same adversary party’s total proof. Caudill v. Maloney’s Discount Stores , 560 S.W.2d 15, 16 (Ky. 1977). KRS 342.285 also establishes a “clearly erroneous” standard of review for appeals concerning fa ctual findings rendered by an ALJ, and is determined based on reasonableness. Special Fund v. Francis , 708 S.W.2d 641, 643 (Ky. 1986). Although an ALJ must recite sufficient facts to permit meaningful appellate review, KRS 342.285 provides that an ALJ’s decision is “conclusive and binding as to all questions of fact,” and that the Board “shall not substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact[.]” Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short, appellate courts may not second

- guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. [ Medley v. Bd

. of Educ

. , Shelby County , 168 S.W.3d 398, 406 (Ky. App. 2004) ]

. Discretion is abused only when an ALJ’s decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing , 45 S.W.3d 449, 454 (Ky. App. 2001).

. . . . Generally, “arbitrariness” arises when an ALJ renders a dec ision on less than substantial evidence, fails to afford procedural due process to an affected party, or exceeds her statutory authority. [ K & P Grocery, Inc. v.- 6

- Commonwealth, Cabinet for Health Serv s . , 103 S.W.3d 701, 703 (Ky. App. 2002) ]

. Substantial evidence is “ that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person.” Bowling v. Nat

. Res

. & Envtl

. Prot

. Cabinet , 891 S.W.2d 406, 409 (Ky. App. 1994). Our stan dard of review requires us to show considerable
deference to the ALJ and the Board.

PERMANENT TOTAL DISABILITY On appeal , McGeorge contends the ALJ failed to define “ permanent total disability ” and “ work [

. ]” These terms are defined by the Act. 2 “‘Permanent total disability’ means the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as a result of an injury[.]” KRS 342.0011(11)(c). “‘Work’

m eans providing services to another in return for remuneration on a regular and sustained basis in a competitive economy[.]” KRS 342.0011(34).

Wal

- Mart claims the ALJ failed to comply with the law as set forth in City of Ashland v. Stumbo , 461 S.W.3d 392 (Ky. 2015). In that case, the C ourt held: an ALJ is required to undertake a five

- step analysis in

order to determine whether a claimant is totally disabled. Initially, the ALJ must determine if the claimant suffered

2 KRS Chapter 342, known as the Workers’ Compensation Act (Act).- 7

- a work

- related injury. Here, the parties stipulated that Stumbo suffered a work

- related injury; therefore, the ALJ was not required to make that finding. Next, the ALJ must determine what, if any, impairment rating the claimant has. Here, the ALJ listed the various impairment ratings as signed to Stumbo by the physicians. However, the ALJ never found which impairment rating Stumbo actually has. Having failed to determine what impairment rating Stumbo has, the ALJ could not then determine what permanent disability rating Stumbo has. Thu s, the ALJ failed to satisfy the second and third steps of the analysis. Next, an ALJ is required to determine that the claimant is unable to perform any type of work. Here, the ALJ attempted to undertake this analysis, but, as noted by the Board and the Court of Appeals, he fell short. An ALJ cannot simply state that he or she has reviewed the evidence and concluded that a claimant lacks the capacity to perform any type of work. The ALJ must set forth, with some specificity, what factors he or she cons idered and how those factors led to the conclusion that the claimant is totally and permanently disabled. Such findings are particularly crucial in a case such as this where: part of Stumbo ’ s condition and arguably some of his restrictions are related to his pre

existing antiphospholipid syndrome; Stumbo testified he could perform sedentary work with accommodations; no physician imposed any restrictions that would foreclose Stumbo from performing sedentary work; Stumbo has performed a wide

- range of work a ctivity; and Stumbo has obtained 90 hours of college credits. Finally, an ALJ must determine that the total disability is the result of the work injury. Id. at 396

- 97. McGeorge complains that the ALJ never mentioned the factors to be considered when e valuating the claimant for permanent total disability as set forth
in Stumbo . Nonetheless, the Board acknowledged that the ALJ appropriately considered those factors even if he did not specifically cite to that case.- 8

- The first step for finding permanen t total disability discussed in Stumbo , regarding a work

- related injury, is undisputed here . The second and third steps concern impairment rating. In the case herein, v arious doctors offered opinions concerning McGeorge’s impairment rating. McGeorge cla ims there is no discussion or explanation as to why the ALJ relied on the opinions of Dr. Russell
L. Travis as opposed to those of Dr. John J. Gilbert regarding his impairment rating. This assertion is not borne out by the record. In his order, the ALJ stated:

Dr. Travis found Dr. Gilbert’s examination to be vague and did not describe which muscles were involved. An examination of the thoracic spine was not recorded and Dr. Travis found no reason to assign an impairment rating to the thoracic spine. Dr . Travis stated McGeorge’s prior impairment rating should be subtracted from his current impairment rating and this was not done by Dr. Gilbert.

. . . . I will not rely on the rating from Dr. Gilbert. First, Dr. Gilbert appears to rate McGeorge, at le ast in part, on two non - work

- related conditions, those to the thoracic spine and at L3

- 4. Second, Dr. Gilbert’s overall exam findings and conclusions are inconsistent with Dr. Travis’ findings, my own estimation of McGeorge’s credibility and Dr. El

- Nagger ’s post

- surgical findings. X

- rays and CT scans by Dr. El

- Nagger found good placement of hardware. Physical findings include a decrease in pain and symptoms.
ROA 1477 , 1480

. The ALJ discussed the proffered impairment ratings and specifically noted why h e relied upon Dr. Travis’ s impairment assessment instead- 9

-

of Dr. Gilbert’s. The fourth step require s the ALJ to determine the claimant i s unable to perform any type of work

. Here, n o medical testimony was presented finding McGeorge unable to return to sed entary work. Dr. Travis opined McGeorge could return to medium work , and Dr. Gilbert communicated McGeorge c ould return to sedentary work. McGeorge relies solely on his own lay

witness testimony, which the ALJ did not find credible , in his attempt to est ablish that he is unable to perform any type of work . The fifth and final step is inapplicable here because the ALJ did not find McGeorge to be permanently, totally disabled as defined by the Act . The Board found the ALJ’s analysis and
determination that McGeorge is not permanently , totally disabled was not flawed. The Board further determined the evidence of record did not compel a different result and the ALJ’s findings were supported by substantial evidence

— namely, the expert testimony of Dr. Travis

. We agree and, thus, affirm

.

INCREASED BENEFITS AWARDED ON REOPEN ING
On cross - petition , Wal

- Mart alleges the ALJ’s award of 20% impairment from the date of reopening is erroneous based on KRS 342.125 and the
AMA Guides

. 3 Wal

- Mart asserts that , pursua nt to the AMA Guides , McGeorge only had a herniated disc with a 12% impairment rating on the date of reopening

3 L INDA C OCCHIARELLA & G UNNAR B. J. A NDERSON , A MERICAN M EDICAL A SSOCIATION , G UIDES TO THE E VALUATION OF P ERMANENT I MPAIRMENT ( 5th ed. 2000).- 10

-

and did not have a 20% impairment rating until the fusion surgery on November 16, 2018. In pertinent part, KRS 342.125(4) simply states, “any change in the amount of compensation shall be ordered only from the date of filing the motion to reopen.” The Board opined:

Based upon the plain reading of this [sic] KRS 342.125(4), we do not believe the ALJ erred as a matter of law. As the ALJ noted, the basis for the motion to reopen was the fact McGeorge’s condition had worsened, and he needed surgery. He ultimately had the surgery, and his impairment rating increased. Although it is not directly on point, we find the holding in Sweasy v. Wal

Mart [ Stores, Inc. ] , 295 S.W.3d 835 (Ky. 2009), analogous and instructive. There the Kentucky Supreme Court determined Sweasy’s entitlement to benefits vested at the time of the injury. In this instance, McGeorge’s entitlement to enhanced benefits for the wor sening of his condition vested on the date he filed the motion to reopen. The increase in impairment was a product of the underlying condition requiring surgery, not necessarily the surgery itself. While the surgery quantified the impairment rating utili zed in the calculation, it was not determinative of whether McGeorge’s condition has worsened. If that were the case, no injured worker would ever be entitled to an award of PPD benefits prior to surgery being performed, contrary to the holding in Sweasy , supra. We additionally find the increase in PPD benefits from the date the motion to reopen was filed is consistent with the holding in [ Bartee v. Univ

. Med

. Ctr

. , 244 S.W. 3 d 91 ] (Ky. 2008). We therefore affirm the ALJ’s determination of increased benef

its from the date the motion to reopen was filed.
ROA 1557.- 11

- Wal

- Mart contends the Board’s interpretation of Sweasy and Bartee is incorrect. However, e ven if Wal

- Mart’s contention is correct , n either case is directly on point when compared to the case herein , and we may affirm for any reason supported by the record. 4 In another

— more recent

— case our Supreme Court held: Workers’ compensation is a statutory creation. When a

claim is reopened, the combined effects of the impairment present at the time of the initial award and the additional impairment present at reopening entitle the injured worker to income benefits based on the whole of his disability from the date of the motion to reopen through the end of the compensable period. James T. English Truck ing v. Beeler , 375 S.W.3d 67, 71 (Ky. 2012)

. In that case, the Court ultimately held “KRS 342.730(1) entitled [the claimant] to receive from the date of his motion to reopen through the end of the compensable period a triple partial disability benefit tha t was based on all of the impairment resulting from his 2003 injury.” Id

. There, the claimant sustained a knee injury , which was later discovered to be a torn meniscus requiring surgery after the initial award. Here, McGeorge experienced a back injury which was not determined to be a herniated disc requiring surgical fusion until after the initial award. Both cases demo nstrate

4 Sweasy discussed when to initially award benefits under KRS 342.730 as opposed to when to increase benefits under KRS 342.125 on reopening and an increase in impairment. Ba rtee focused on TTD benefits with the court holding, “ the medical dispute did not encompass the TTD issue and

. . . KRS 342.125(4) prohibited a TTD award because the claimant filed her motion to reopen after the period of TTD expired. ” Bartee , 244 S.W.3d at 92.- 12

-

changes of condition arising from the work

- related injury sufficient to support reopening and awards of increased benefits based on increased impairment ratings from the date of reopening.

“ In any event, it has long been established that a worker ’ s right to benefits for a post

- award increase in disability vests when a motion to reopen is filed, without regard to when the increased disability began. ” Johnson v. Gans Furniture Indus

. , Inc ., 114 S.W.3d 850, 855 (Ky. 2003) (citing Rex Coal Co. v. Camp bell , 213 Ky. 636, 281 S.W. 1039 (1926)). Therefore, based on the plain language of KRS 342.125(4) and its interpretation by our highest court, we cannot say the ALJ erred in awarding additional benefits from the date of the motion to reopen. Likewise, t he Board did not err in affirming the ALJ’s award from that
date. CONCLUSION

For the foregoing reasons, the Opinion of the Workers’ Compensation
Board is AFFIRMED.

ALL CONCUR

.- 13

-

BRIEF FOR APPELLANT /CROSS

APPELLEE : McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE / CROSS

APPELLANT WAL

- MART : Brandon L. Rosen Huntington, West Virginia