RENDERED: MAY 27, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky
Court of Appeals

NO. 2021

- CA

- 0527

- WC

MJ GREAT CLIPS, INC. APPELLANT

v. PETITION FOR REVIEW OF A DECISION

OF THE WORKERS ’ COMPENSATION BOARD

ACTION NO. WC

- 19

- 93999

ANGELA JOHNSON; HONORABLE TONYA MICHELLE CLEMONS

, A DMINISTRATIVE L AW J UDGE ; AND WORKERS ’ COMPENSATION BOARD APPELLEES

OPINION AFFIRMING

**   **  **

BEFORE: DIXON, M C NEILL, AND K. THOMPSON, JUDGES.

M C NEILL, JUDGE: On November 20

, 2018, Appellee, Angela Johnson

(Johnson), sustained a work

- related cumulative trauma injury to her shoulder

,
while working for her employer, MJ Great Clips, Inc. (Great Clips). Johnson filed

her Form 101, Application for Resolution of Workers’ Compensation Claim, on- 2

-

March 13, 2020

. After a final hearing on the matter, the Administrative Law Judge

(ALJ) issued a sixteen

- page opinion awarding Johnson temporary total disability

(TTD), permanent partial disability (PPD), and medical benefits. Great Clips

appealed to the Workers’ Compensation Board (Board), which unanimously

affirmed the ALJ’s determination. Great Clips now appeals to this Court as a

matter of right. Having reviewed the record and the law, we affirm the Board.

STANDARD OF REVIEW

The ALJ has “the sole discretion to determine the quality, character,

weight, credibility, and substance of the evidence, and to draw reasonable

infe rences from the evidence.” Bowerman v. Black Equipment Co.

, 297 S.W.3d

858, 866 (Ky. App. 2009)

. Therefore, “ a ppellate courts may not second

- guess or

disturb discretionary decisions of an ALJ unless those decisions amount to

an abuse of discretion.” Id. at 866 (citing Medley v. Bd. of Educ., Shelby County

,

168 S.W.3d 398, 406 (Ky. App. 2004) ). “If the reviewing court concludes the rule

of law was correctly applied to facts supported by substantial evidence, the final

order of the agency must be affirmed.” Kentucky Unemployment Ins. Comm ’ n v.

Cecil

, 381 S.W.3d 238, 246 (Ky. 2012) (citing Brown Hotel Co. v. Edwards

, 365

S.W.2d 299

, 302 (Ky. 1962) ). “ Substantial evidence means evidence of substance

and relevant consequence having the fitness to induce conviction in the minds of

reasonable men.” Smyzer v. B.F. Goodrich Chem. Co.

, 474 S.W.2d 367, 369 ( Ky.- 3

-

1971) (citation omitted). “ However, a reviewing court is entitled to substitute its

judgment for that of the agency where the agency ’ s ruling is based on an ‘ incorrect

view of the law. ’ ” Fresenius Medical Care Holdings, Inc. v. Mitchell , 507 S.W.3d

15, 19 (Ky. App. 2016) (quoting Kentucky Bd. of Nursing v. Ward

, 890 S.W.2d

641, 642 (Ky. App. 1994) )

. Of particular import here, KRS 342.185(3) provides :

The right to compensation under this chapter resulting from work

- related exposure to cumulative trauma injury shall be barred unless notice of the cumulative trauma injury is given within two (2) years from the date the employee is told by a physician that the cumulative trauma injury is work

- related. An application for adjustment of claim for compensation with respect to the injury shall have been made with the department wit hin two (2) years after the employee is told by a physician that the cumulative trauma injury is work

- related. However, the right to compensation for any cumulative trauma injury shall be forever barred, unless an application for adjustment of claim is fi led with the commissioner within five (5) years after the last injurious exposure to the cumulative trauma.

With these standards in mind, we now turn to the merits of the present case.

ANALYSIS

Great Clips ’ sole argument on appeal is that it was erron eous as a

matter of law to award permanent benefits. The ALJ addressed the relevant

evidence most succinctly in its order denying Great Clips’ p etition for

r econsideration as follows:

The Opinion indicates all evidence was fully considered in determining that Plaintiff suffered a work

- related- 4

- cumulative trauma to her left shoulder as well as a rationale for reliance on the opinions of Dr. [Jeffrey] Fadel as the most credible and persuas ive with respect to dormant conditions and capacity to return to work. Further, consistent with applicable law, the Opinion identifies the date triggering notice [November 20, 2018] and clocking of the statute of limitations based on the opinion of Dr. [J ames] Bilbo.

In its opinion affirming the ALJ, the Board addressed the underlying evidence at

length, and ultimately agreed that Johnson’s cumulative trauma case was timely

filed

. We also agree that the AL J’s opinion was based on substantial evidence, i.e.

,

“ evidence of substance and relevant consequence having the fitness to induce

conviction in the minds of reasonable men.” Smyzer

, 474 S.W.2d at 369 (citation

omitted). And although Great Clips’ argument is styled as an issue of law, much

of its argument actually concerns the sufficiency of the evidence. W e hold that the

ALJ did not abuse its discretion here and certainly cannot say that the agency ’ s

ruling is based on a n “incorrect view of the law.” Mitchell , 507 S.W.3d at 19

( citation omitted ).

CONCLUSION

For the foregoing reasons, we hereby affirm the Board, affirming the

decision issued by the ALJ.

ALL CONCUR

.- 5

-

BRIEF FOR APPELLANT:

James Compton Lexington, Kentucky BRIEF FOR APPELLEE:

Haley S. Stamm Fort Mitchell, Kentucky