RENDERED: NOVEMBER 13, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0699-WC

BLUEGRASS OAKWOOD, INC. APPELLANT

PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

CLAIM NOS. WC-16-78248, WC-17-64748, WC-18-00506,

WC-18-00510, AND WC-18-00511

ROBIN STUBBS; HONORABLE

GRANT ROARK, ADMINISTRATIVE

LAW JUDGE; AND WORKERS’

COMPENSATION BOARD APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; JONES AND LAMBERT, JUDGES.

JONES, JUDGE: Bluegrass Oakwood, Inc., has petitioned this Court for review of 

the decision of the Workers’ Compensation Board (the Board), which affirmed in 

part and remanded the decision of the Administrative Law Judge (ALJ) awarding 
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benefits to Robin Stubbs. At issue is whether Stubbs had any pre-existing active 

impairment. Having reviewed the record in conjunction with all applicable legal 

authority, we affirm. 

I. BACKGROUND

Stubbs was born in 1960. She began working as a rehabilitation 

counselor for Bluegrass Oakwood in 2006. Bluegrass Oakwood serves 

intellectually and developmentally challenged individuals. During the course of 

her employment, Stubbs sustained several injuries for which she filed workers’

compensation claims. She alleged an injury on June 16, 2016, to her neck, left 

arm, left shoulder, and back during a physical altercation with a patient. (Claim 

No. 2016-78248). Her second injury date was May 2, 2017, when she was struck 

on the left shoulder and left arm while she and other staff members were changing 

a patient (Claim No. 2017-64748). Stubbs’s third injury date was July 11, 2017, 

when a patient she was transporting fell off a sidewalk and pulled her off with her, 

causing Stubbs to injure her left shoulder, arm, and elbow (Claim No. 2018-

00506). Her fourth injury date was September 18, 2017, when she injured her left 

shoulder and back when lifting a client onto a bicycle (Claim No. 2018-00510). 

Her fifth injury date was October 13, 2016, when she was struck in the face by a 

resident (Claim No. 2018-00511). The five claims were all filed in March 2018 

and were later consolidated for all purposes. Bluegrass Oakwood denied her 
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claims for various reasons, including the amount of compensation she was owed, 

how the injury arose, and notice. Stubbs last worked for Bluegrass Oakwood in 

September 2017. 

Medical proof was filed, and the ALJ held a Benefit Review 

Conference (BRC) in August 2018. At that time, contested issues included 

whether Stubbs had any pre-existing disability or impairment, as well as causation. 

A final hearing was held in September 2018, after which the parties filed briefs 

supporting their respective positions. 

The ALJ entered an opinion, order, and award on November 16, 2018. 

The ALJ summarized the evidence from (1) Stubbs’s deposition; (2) the medical 

reports/records of her treating physician Dr. Jeffrey Golden; (3) Dr. John 

Vaughan’s independent medical examination (IME) report; (4) Dr. Michael Best’s

IME report; (5) Dr. Ellen Ballard’s IME report; (6) Dr. Stephen Autry’s IME 

report; (7) records from Dr. Travis Hunt and Dr. Wallace Huff, who saw Stubbs in 

2017 for evaluation of her cervical spine complaints; (8) records from Dr. Ronald 

Dubin, who treated Stubbs following a motor vehicle accident in January 2012;

and (9) records from Dr. Magdy El-Kalliny, who treated Stubbs for cervical spine 

complaints in 2012. The ALJ did not summarize or mention records from Dr. 

Bryan Nelson, a chiropractor who treated Stubbs from 2001 through 2015 for neck 

pain, thoracic spine/left shoulder pain, and low-back pain following a motor 
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vehicle accident in August 2001 and a second motor vehicle accident in January 

2012. 

The ALJ first analyzed the issue of causation, concluding that 

Stubbs’s cervical and shoulder injuries were work-related and compensable (but

that she failed to establish that she had suffered a permanent lumbar injury):

As threshold issues, [Bluegrass Oakwood] maintains that, 

despite [Stubbs’s] multiple alleged dates of injury, 

[Stubbs has not suffered] any new, permanent injuries to 

her neck, back or left shoulder beyond those problems 

which were pre-existing and active prior to any of the 

injuries alleged herein. It therefore argues [Stubbs] has 

no compensable permanent injuries and is not entitled to 

permanent income benefits or payment of medical 

expenses. In support of this position, [Bluegrass 

Oakwood] relies on opinions from its experts, Dr. 

Ballard, Dr. Vaughan, and Dr. Best, each of them 

concluded [Stubbs’s] cervical problems were pre-existing 

prior to her alleged work injuries and that none of the 

work incidents caused any structural change. They also 

concluded [Stubbs] suffered no lumbar injury. For her 

part, [Stubbs] relies on her expert, Dr. Autry, who 

acknowledged [Stubbs’s] prior cervical treatment from a 

2012 motor vehicle accident, but concluded she had 

neck, back, and left shoulder injuries due to the work 

injuries she described.

Having reviewed the evidence of record, the 

Administrative Law Judge is plainly aware of the fact 

that [Stubbs] had prior cervical and lumbar complaints, 

and even some left shoulder complaints, prior to any of 

the work injuries alleged herein. But the question is 

whether any portion of her current cervical, left shoulder, 

or lumbar issues are new and caused by any of the work 

injuries alleged. Ultimately, the ALJ is persuaded 

[Stubbs] has suffered some new cervical and left 
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shoulder injuries as a result of the June 15, 2016 work 

injury. Despite prior treatment and even a 2012 motor 

vehicle accident, [Stubbs] was always able to return to 

work and perform the full duties associated with her 

position. After June 15, 2016, her neck and left 

arm/shoulder conditions never significantly abated. All 

physicians agree [Stubbs] has significant cervical 

degenerative disc disease but the ALJ is persuaded by Dr. 

Autry’s opinion that [Stubbs’s] work injury caused a 

permanent aggravation of her cervical spondylosis and 

accompanying radiculopathy. His opinion is simply 

found more persuasive and more in keeping with 

[Stubbs’s] ability to continue working and performing the 

full range of her duties before she was struck by a 

resident at work on June 15, 2016. It is therefore 

determined [Stubbs’s] cervical condition is work-related 

and compensable.

Similarly, the ALJ is persuaded by Dr. Autry’s opinion 

that [Stubbs] has rotator cuff tendinosis and impingement 

as a result of her work injury. In reaching this 

conclusion, it is noted that Dr. Huff, to whom [Stubbs]

was referred by the insurance carrier, indicated 

[Stubbs’s] diagnostic testing and examination indicated 

cervical impingement after her work injury with 

persistent weakness in the left upper extremity 

hyperreflexia. His findings seem to support Dr. Autry. 

Conversely, the defendant’s experts offer contradictory 

conclusions which undermine their collective credibility. 

For example, Dr. Vaughan indicated [that while Stubbs]

had genuine pain into her left upper extremity, he 

believed it was referred pain from her cervical condition 

and not due to any shoulder injury. However, Dr. Best 

indicated [Stubbs’s] shoulder complaints were due to a 

left rotator cuff tear diagnosed in 2012 after [a] motor 

vehicle accident and that [Stubbs] suffered only shoulder 

and neck contusions in the work incidents, which 

resolved without any permanency. In addition, Dr. 

Ballard’s initial report indicates she never even examined 

[Stubbs’s] neck, yet she still concluded in a subsequent 
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report, after reviewing additional records, that [Stubbs]

only had pre-existing cervical and bilateral shoulder 

problems. Based on Dr. Autry’s more persuasive opinion 

in this instance, it is determined [Stubbs] also suffered a 

compensable shoulder injury.

The ALJ went on to decide that Stubbs had sustained a permanent, 

partial disability and relied on Dr. Autry’s impairment ratings to conclude that she 

had a 12% whole person impairment (an 8% cervical impairment and a 4% left 

shoulder impairment). As to whether Stubbs had any active impairment, the ALJ 

concluded:

[Bluegrass Oakwood] maintains at least 5% of [Stubbs’s]

cervical impairment rating should be carved out [as] preexisting and active based on the opinions of its experts 

and [Stubbs’s] treatment records. However, although 

[Stubbs] previously receive[d] significant treatment for 

cervical complaints, the ALJ is not persuaded her 

condition was significantly symptomatic and disabling 

immediately prior to June, 2016. The fact that she was 

able to perform the full range of duties of her job 

supports this conclusion. As such, the ALJ is persuaded 

by Dr. Autry’s opinion that no portion of [Stubbs’s]

cervical impairment rating was pre-existing and active.

Both parties petitioned the ALJ for reconsideration on matters

unrelated to this appeal, which the ALJ granted and corrected. Bluegrass 

Oakwood appealed the ALJ’s decision to the Board.

In an opinion rendered April 5, 2019, the Board affirmed the ALJ’s 

opinion in part. The Board set out Bluegrass Oakwood’s arguments related to the 

ALJ’s interpretation of Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 
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2007), related to proof for a pre-existing condition; whether it is a question for 

medical experts to decide whether a condition is symptomatic; whether the IME 

report Stubbs submitted constituted substantial evidence; and whether the ALJ’s 

finding regarding Stubbs’s condition being asymptomatic was arbitrary and 

capricious. The Board rejected Bluegrass Oakwood’s arguments, noting that the 

ALJ, as the fact-finder, had the discretion to determine that Dr. Autry’s opinions 

were credible and to rely upon those opinions. However, the Board determined 

that the ALJ only addressed the June 15, 2016, injury, not the four later injury 

claims. Therefore, it remanded the matter for the ALJ to decide those claims. This 

petition for review now follows.

Our review in this matter is premised on the Supreme Court of 

Kentucky’s statement describing this Court’s role in reviewing workers’

compensation actions. In Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 

1992), the Supreme Court directed that this Court’s function is to correct a decision 

of the Board only where we perceive that “the Board has overlooked or 

misconstrued controlling statutes or precedent, or committed an error in assessing 

the evidence so flagrant as to cause gross injustice.” Id. at 687-88.

The Supreme Court later addressed this standard in McNutt

Construction/First General Services v. Scott, 40 S.W.3d 854, 860 (Ky. 2001), 

explaining:
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KRS[1] 342.285(2) provides that when reviewing the 

decision of an ALJ, the Board shall not reweigh the 

evidence and substitute its judgment for that of the ALJ 

with regard to a question of fact. The standard of review 

with regard to a judicial appeal of an administrative 

decision is limited to determining whether the decision 

was erroneous as a matter of law. See American Beauty 

Homes v. Louisville & Jefferson County Planning & 

Zoning Commission, Ky., 379 S.W.2d 450, 457 (1964). 

Where the ALJ determines that a worker has satisfied his 

burden of proof with regard to a question of fact, the 

issue on appeal is whether substantial evidence supported 

the determination. Special Fund v. Francis, Ky., 708 

S.W.2d 641, 643 (1986). Substantial evidence has been 

defined as some evidence of substance and relevant 

consequence, having the fitness to induce conviction in 

the minds of reasonable people. Smyzer v. B.F. Goodrich 

Chemical Co., Ky., 474 S.W.2d 367 (1971). Although a 

party may note evidence which would have supported a 

different conclusion than that which the ALJ reached, 

such evidence is not an adequate basis for reversal on 

appeal. McCloud v. Beth-Elkhorn Corp., Ky., 514 

S.W.2d 46 (1974). The crux of the inquiry on appeal is 

whether the finding which was made is so unreasonable 

under the evidence that it must be viewed as erroneous as 

a matter of law. Special Fund v. Francis, supra, at 643.

In addition, the ALJ has the authority to decide the assessment of the 

credibility of witnesses and the persuasive weight of the evidence. KRS 342.285. 

The ALJ, not the Board, is empowered “to determine the quality, character and 

substance of evidence.” American Greetings Corp. v. Bunch, 331 S.W.3d 600, 602 

(Ky. 2010) (footnote omitted). The ALJ is also free to reject testimony, id., and 

 

1 Kentucky Revised Statutes.
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“to believe part of the evidence and disbelieve other parts of the evidence[.]” 

Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). For these

reasons, the Board “shall not substitute its judgment for that of the administrative 

law judge as to the weight of evidence on questions of fact.” KRS 342.285(2); see 

also FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007). And “if 

the physicians in a case genuinely express medically sound, but differing, opinions 

as to the severity of a claimant’s injury, the ALJ has the discretion to choose which 

physician’s opinion to believe.” Jones v. Brasch-Barry General Contractors, 189 

S.W.3d 149, 153 (Ky. App. 2006).

Bluegrass Oakwood urges us to examine Finley in light of the facts of 

this case. It further asserts that the ALJ’s criteria in finding that Stubbs’s condition 

was asymptomatic—namely the mere fact that she was still working—is arbitrary 

and capricious. Finally, Bluegrass Oakwood argues that it submitted no fewer than 

244 pages of treatment notes from Stubbs’s chiropractor chronicling treatment to 

Stubbs’s cervical spine as early as October 2001 and as recently as December 11, 

2015, a mere twenty-seven weeks prior to the first date of injury. 

In Finley, we held that “a pre-existing condition that is both

asymptomatic and produces no impairment prior to the work-related injury 

constitutes a pre-existing dormant condition.” Finley, 217 S.W.3d at 265. “[T]he 

burden of proving the existence of a pre-existing condition falls upon the 
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employer.” Comair, Inc. v. Helton, 270 S.W.3d 909, 914 (Ky. App. 2008)

(quoting Finley, 217 S.W.3d at 265). Bluegrass Oakwood argues that the IME 

reports it submitted in combination with Stubbs’s chiropractic records conclusively 

establish that she suffered from a pre-existing, active, and impairment-ratable 

condition. The ALJ disagreed. In so doing, the ALJ relied on Dr. Autry’s opinion 

that no portion of Stubbs’s cervical impairment rating was pre-existing and active. 

The ALJ noted that he found Dr. Autry’s opinion on this issue more persuasive 

because it was consistent with the fact that Stubbs was able to perform the full 

range of duties prior to June 2016. Despite Bluegrass Oakwood’s arguments to the 

contrary, the ALJ’s reliance on Stubbs’s ability to continue working without 

restrictions was an appropriate consideration in assessing the persuasiveness of the 

differing medical opinions presented to him. See Holcim v. Swinford, 581 S.W.3d 

37, 41 (Ky. 2019) (applying Finley and affirming that condition was not 

preexisting where ALJ “considered the fact that [the claimant] had been working 

full time without any restriction as a heavy equipment operator for more than two 

decades after his cervical fusion surgery”).

Additionally, we cannot agree with Bluegrass Oakwood that the ALJ 

should have outright rejected Dr. Autry’s report as unreliable. In Cepero v. 

Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), an ALJ awarded a claimant 

benefits for an alleged work-related knee injury based upon evidence from two 
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doctors who indicated that his knee condition was related to a work injury. 

However, neither doctor had been informed that Cepero had suffered a severe knee 

injury several years prior. Id. at 842. The Board reversed the ALJ’s finding that 

the doctors’ opinions were based upon substantial evidence and therefore sufficient 

to support findings of causation. The Supreme Court of Kentucky affirmed, 

quoting the Board’s holding:

[I]n cases such as this, 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. 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). 

In Eddie’s Service Center v. Thomas, 503 S.W.3d 881 (Ky. 2016), the 

Supreme Court of Kentucky applied Cepero to hold that an ALJ has the discretion 

to reject a medical report based on a substantially inaccurate understanding of the 

facts and medical history. Id. at 887-89. Our Supreme Court held that because of 

a number of internal inconsistencies within the report, along with the doctor’s 

inaccurate understanding of the facts, the report could not constitute substantial 

evidence. Id. at 889. “Evidence is substantial if it is of ‘relevant consequence 

having the fitness to induce conviction in the minds of reasonable men.’” Id. at 
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887 (quoting Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 

1971)). 

Finally, this Court held in GSI Commerce v. Thompson, 409 S.W.3d 

361 (Ky. App. 2012), that an ALJ was not required to disregard a medical report 

that was “not ‘unsupported by other credible evidence.’” Id. at 365. In that case, 

an employer contended that a physician’s report could not be considered because it 

did not mention a prior relevant injury; however, the doctor explained during 

deposition that he was aware of the claimant’s past injury. Id. We differentiated 

between GSI Commerce and Cepero, stating “[i]n Cepero, there was a complete 

omission of a significant and clearly relevant past injury [and] the medical opinion 

described in Cepero was completely unsupported by any other credible evidence.” 

Id. at 364 (emphasis in original). Conversely, in GSI Commerce, the physician 

making the report was aware of the prior injury and there was other evidence 

before the court corroborating the physician’s opinion. Id. at 365.

We cannot agree with Bluegrass Oakwood that the ALJ’s reliance on 

Dr. Autry’s opinion was improper in this circumstance. Dr. Autry was aware of 

Stubbs’s prior injuries and had the opportunity to examine Stubbs as well as review 

prior records. We cannot conclude that Dr. Autry’s IME was so corrupt as to make 

it incapable of being substantial evidence. 
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Finally, Bluegrass Oakwood points out that the ALJ paid little 

attention to the many chiropractic records it submitted. It is undisputed that Stubbs 

received this treatment. The ALJ acknowledged in his opinion that Stubbs had 

prior injuries and received treatment for those injuries. Moreover, the ALJ 

summarized the medical opinions/reports the parties submitted in this case. Those 

opinions considered Stubbs’s prior complaints and treatment making it 

unnecessary for the ALJ to separately summarize the chiropractic treatment 

records. 

Moreover, the chiropractic records would only substantiate what the 

ALJ had clearly accepted—Stubbs had prior injuries that caused her pain and she 

received treatment for those injuries in the years leading up to the work injury at 

issue. The determinative question is whether Stubbs was suffering from a 

pre-existing, active, impairment-ratable condition at the time of her work injury. 

Finley, 217 S.W.3d at 265 (“To be characterized as active, an underlying 

pre-existing condition must be symptomatic and impairment ratable pursuant to the 

AMA Guidelines immediately prior to the occurrence of the work-related injury.”). 

The chiropractic records would not fully answer that question because a 

chiropractor lacks the expertise to assign an impairment rating. See AMA Guides 

5th ed., Sec. 2.2. (“Impairment evaluations are performed by a licensed physician. 

The physician may use information from other sources . . . [h]owever, the 
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physician is responsible for performing a medical evaluation that addresses 

medical impairment in the body or organ system and related systems.”). 

In this circumstance, evaluating the credibility and proper weight of 

Dr. Autry’s report fell on the ALJ. The ALJ may determine whom and what to 

believe when there is conflicting evidence. Pruitt v. Bugg Brothers, 547 S.W.2d 

123, 124 (Ky. 1977). The Board is charged with making sure the ALJ’s opinion is 

based on an accurate understanding of the facts and evidence and a proper 

application of the law. It did not err in this instance in affirming the ALJ’s 

decision with respect to the June 15, 2016, injury. Moreover, we agree with the 

Board’s decision to remand for consideration of the other injury claims Stubbs 

alleged, which were omitted from the ALJ’s opinion. 

For the foregoing reasons, the opinion of the Workers’ Compensation 

Board is affirmed. 

CLAYTON, CHIEF JUDGE, CONCURS.

LAMBERT, JUDGE, DISSENTS AND DOES NOT FILE 

SEPARATE OPINION. 

BRIEF FOR APPELLANT:

Robert F. Ferreri

Lexington, Kentucky

BRIEF FOR APPELLEE ROBIN 

STUBBS:

McKinnley Morgan

London, Kentucky