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NOT TO BE PUBLISHED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 NO. 2020-CA-0715-WC

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 
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OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

DIXON, JUDGE: Charles David McGeorge petitions, and Wal-Mart crosspetitions, 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 13, 2019, 

respectively, by the Administrative Law Judge (ALJ). Following review of the 

record, briefs, and law, we affirm. 

FACTS AND PROCEDURAL BACKGROUND

On 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, 2016, 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 
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employment.” ROA1 573. On August 24, 2018, following 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 awarding McGeorge 

TTD benefits “from the date of the surgery through the date the Plaintiff 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; post-surgery, McGeorge’s 

right-sided symptoms 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 increased 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 reconsideration. McGeorge appealed to the 

Board, and Wal-Mart cross-appealed, using the same arguments presented to the 

 

1

 Record on appeal. 
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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 Equipment 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 injustice. 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 question 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. Servs. v. Estate of Wilson, 39 S.W.3d 

816, 817-18 (Ky. 2001); Uninsured Emps.’ 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, and has been construed to mean 

that the factfinder has the sole discretion to determine the 
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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, regardless 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 

factual 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 decision 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 Servs., 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 standard 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’ 

means 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 Court 

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). 
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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 assigned 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. 

Thus, 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 considered 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 preexisting 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 activity; 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 evaluating 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. 
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The first step for finding permanent 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, various doctors offered 

opinions concerning McGeorge’s impairment rating. McGeorge claims 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 least 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 he relied upon Dr. Travis’s impairment assessment instead 
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of Dr. Gilbert’s. The fourth step requires the ALJ to determine the claimant is

unable to perform any type of work. Here, no medical testimony was presented 

finding McGeorge unable to return to sedentary work. Dr. Travis opined 

McGeorge could return to medium work, and Dr. Gilbert communicated 

McGeorge could return to sedentary work. McGeorge relies solely on his own laywitness testimony, which the ALJ did not find credible, in his attempt to establish 

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 REOPENING

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, pursuant to the AMA Guides, McGeorge

only had a herniated disc with a 12% impairment rating on the date of reopening 

 

3

 LINDA COCCHIARELLA & GUNNAR B. J. ANDERSON, AMERICAN MEDICAL ASSOCIATION,

GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (5th ed. 2000). 
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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. WalMart [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 worsening 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

utilized 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.3d 91]

(Ky. 2008). We therefore affirm the ALJ’s determination 

of increased benefits from the date the motion to reopen 

was filed.

ROA 1557. 
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Wal-Mart contends the Board’s interpretation of Sweasy and Bartee is

incorrect. However, even if Wal-Mart’s contention is correct, neither 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 Trucking 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 that 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 demonstrate 

 

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. Bartee

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. 
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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. 

Campbell, 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, the 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.
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BRIEF FOR APPELLANT/CROSSAPPELLEE:

McKinnley Morgan

London, Kentucky 

BRIEF FOR APPELLEE/CROSSAPPELLANT WAL-MART:

Brandon L. Rosen

Huntington, West Virginia