# IMPORTANT NOTICE NOT·To BE PUBLISHED OPINION

' I 

### THIS OPINIONIS DESIGNATED "NOTTO BE PUBLISHED." PURSUANT TOTHE RULES OF CIVILPROCEDURE PROMULGATED BY THE SUPREME COURT, CR76.28(4)(C), THIS OPINIONISNOTTO BE PUBLISHED AND SHALLNOT BE CITED ORUSED AS BINDING PRECEDENT INANY OTHER CASE INANY COURT OFTHIS STATE; HOWEVER,
_ UNPUBLISHED KENTUCKYAPPELLATE DECISIONS, RENDERED AFTERJANUARY 1, 2003, MAY BE CITED FOR CONSIDERATIONBY THE COURTIFTHERE IS NO PUBLISHED OPINIONTHATWOULD ADEQUATELYADDRESS THEISSUE BEFORE THE COURT. OPINIONS CITED FORCONSIDERATION
·BY THE COURT SHALL BE SET OUTAS AN UNPUBLISHED

DECISIONIN THEFILEDDOCUMENTAND A COPY OFTHE ENTIRE DECISION SHALLBE TENDERED ALONG WITHTHE DOCUMENT TOTHE COURTAND ALLPARTIES TO THE ACTION.RENDERED: DECEMBER 13, 2017

. NOT TO BE PUBLISHED

# jupmn~**~Inurf** 

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2017-SC-000237-WC

ROBIN D. WILSQN



### v. ON APPEAL FROM COURT OFAPPEALS CASE NO. 2015-CA-000477 WORKERS' COMPENSATION NO. 11-WC-67145
DERBY CITY SIGN & ELECTRIC, INC.; HONORABLE JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT REVERSING APPELLANT.

APPELLEES

Appellant, Robin Wilson, appeals from a ruling ofthe CourtofAppeals 1 thatreversed the decision ofthe Administrative LawJudge (AW) and the Workers' Compensation Board (Board) awardingworkers' compensation benefits and medical expenses to Appellant as a result ofa work-related

.' accident that injured his left ankle. Upon review, we reverse the Court of Appeals and reinstate the Opinion ofthe Board.

I Although Judge Acree wrote the opinion expressinghis rationale for reversing the Board, neither ofthe otherjudges on thepaneljoined. Judge Taylor concurred onlyin the resultwithout a separate opinion; Judge D. Lambert dissented without an opinion.

### I. FACTUAL AND PROCEDURAL BACKGROUND Wilson worked for Derby City Sign & Electric, Inc. installing and servicing commercial signs. Hisjob required heavy lifting and climbing extension ladders to work on the sigD.s. In August 2011,.Wilson had been experiencingpain in his left foot, but there is no indication that his·ability to

/ work was affected by this condition. He was examined by Dr. William Brown who diagnosed the problem as plantarfasciitis, a bone spur on the side ofhis foot, and heel pain syndrome. Dr. Brown recommended surgery to remove the bone spur, butWilson declined.because the condition was troubling only when he shifted gears on his motorcycle. Dr. Brown advised Wilson to return for follow-up treatment in

. . three weeks, butWilson did not do so. Oddly, in the notes recorded for this

. . visit, Dr. Brown erroneously refers to Wilson as a female. Following this

.examination, Wilson continued to work withoutrestrictions. Three months later, on November 14, 2011, Wilson descended a ladder while working on a sign. As he stepped offthe ladder, his left foot landed on a root and his ankle "rolled" or, as the AW described it, "twisted." Wilson felt a sharp pain that he described as "totally different" from the previous pain in his foot. At least momentarily, he was unable to walk. He crawled to his truck and after waiting a few minutes, he was able to retrieve tools, load his equipment, and return to the shop where he reported the incident to his supervisor. TheAW noted that surveillance video from the shop's security

2cameras, "though mostly inconclusive, appears to showWilson having difficulty walking, if**anything.~** Three days later, on November 17, 2011, Wilson went

### to Dr. Brown's clinic for treatment. He was examined there by Dr. Christopher Hubbard. Dr. Hubbard ordered an MRI ofWilson's left foot and ankle. As a result ofthis examination, Dr. Hubbard diagnosed Wilson's injury as a peroneus longus tendon tear in the left**ankl~** requiring a surgical repair. On January·.25, 2012, he performed the surgery needed to repair the tendon. Significantly, Dr. Brown's examination in August did not disclose the existenc!iofa torn tendon, ·and there was no evidence that he anticipated the developm_ent ofa torn tendon. Dr. Hubbard's original notes from the November 17 examination of Wilson became a source ofcontroversy because they are strikingly similar to the notes made by Dr. Brown the precedingAugust. For example, both sets of notes record: "Condition.has existed for one month." Both sets state: "Onset
was gradual." Both sets state: "Patientindicates irritation from direct pre·ssure and prolonged walking and standing aggravate the condition." Both say: "Severity ofcondition is progressively worsening." Dr. Hubbard's notes repeat the statement found'-in Dr. Brown's notes: "Patient denies a previous history of trauma. The patient has had no previous treatment for this condition." Most telling, however, is the fact that Dr. Hubbard's notes also repeat Dr. Brown's clearly erroneous references to Wilson as a "female patient," referring to him throughout as "she." 3The anomaly ofDr. Hubbard's original notes gives rise to Derby City's argument thatWilson's tom ankle tendon was not the result ofthe November occurrence, 1 stepping offthe ladder, but·was instead "aworsening continuum of pain that began in July 2011," one month before theAugust diagnosis of plantar fasciitis, bone spur, and heel pain syndrome. The anomaly also cast doubt in the mind ofthe AW about the**~ccuracy** ofthe November 17 notes. She concluded that "the 

### initialrecord from**Dr~** Hubbard is not found to be conclusive" on the issue ofwhat caused the torn tendon. (Emphasis added.) Derby City points out that Dr. Hubbard's original notes make no reference to Wilson's claim ofa workplace injury due to stepping offa ladder three days prior; however, in February 2012, and:well before this action commenced, Dr. Hubbard amendedhis original notes to reflect thatWilson did, in fact, reportthe ladder incident during the November 2011 examination. Wilson's reparative surgery inJanuary 2012 was followed by a six-week
course ofphysical therapy
..Dr. Hubbard released Wilson to return to work without restrictions on June 14, 2012. Wilson's private health insurancepaid the medical expenses associated with his treatment up until his return to work and Wilson directly paid other necessary out-of-pocket costs ofhis medical treatment. Soon after returning to work at Derby City, Wilson was laid off. He found anotherjob at Glass Sign Company, where he**wor~ed** without any medical restrictions for about five months. He next worked at Louisville Signs without

4i medical restrictions for about three months before taking ajob with another sign company doing the same kind ofwork butwith less lifting and climbing. After he returned to workfollowing surgery, Wilson continued to have pain and swelling in his left foot which worsened when he was more active. Specifically, the**activ~ties** associated with his work-crouching, climbing ladders, and lifting heavy materials-· became more difficult and more uncomfortable. On October 18, 2013,**~enty-three** months after the incident involving the ladder, Wilson filed a workers' compensation claim asserting that ' he had suffered a work-related injuryto his "left foot/ankle" on November 14, 2011. Derby City denied Wilson's claim. After considering the evidence, which included testimony and reports from several medical witnesses, and deciphering the inconsistencies ofDr. Hubbard's original notes from November 17, 2011, the AW .made the following ' . . findings with respect to the issue ofmedical causation ofWilson's torn tendon: Wilson is a believable witness. He had seen Dr. Brown, Dr. Hubbard's partner, for a foot condition prior to the work injury but worked unrestricted with 

### no significant complaints until he twisted the ankle onNovember 14, 2011. The surveillance video, though mostlyinconclusive, appears to showWilson having difficulty walking, ifanything. The initial treatment record from Dr. Hubbard on [November] 17, 2011 notes a gradual onsetbut also refers to Wilsori as a female all through the record. For this reason, the initial record from Dr. Hubbard is not found to be conclusive on·this issue.


### Additionally, Dr. Hubbard's lateroffice notes state the condition is 

### work related. Dr. Loeb's report has been reviewed buthis-opinion on the causation is not adopted herein. The opinion ofDr. Farrage on work-relatedness/causation is not found to be any more helpful than that ofDr. Loeb on the issue. 

### It is 

### the review of the records of 5

### Dr. Hubbard along withthe testimony ofWilson whichhave been persuasive on the issue of causation. · (Emphasis added.) TheALJ plainly considered the conflicting medical opinions
on whetherWilson's torn tendon and its surgical repair resulted (rom a
I workplace injury ofNovember 14, 2011, or instead, was the worsening

, . .

manifestation ofthe preexisting foot pain he had in August. In the final analysis, the-ALJ agreed with Wilson and awarded**benefit~** accordingly. Derby City petitioned.for a reconsideration ofthat opinion, arguing that theALJ's findings on causation were not supported by substantial evidence. The petition·was denied. Derby City next soughtreview by the Board, further arguing that the record lacked substantial medical evidence to support Wilson's claim that the work-related ladder incident caused the torn ankle**~** tendon. The Board concluded "[i]n this instance, itwas not so unreasonable for theAW to infer from the totality ofthe circumstances evidenced by the lay and medical testimony thatWilson's left ankle condition was caused by his / work accident." Derby City theh appealed to the Court ofAppeals. The Court ofAppeals reversed the Board's decision in a plurality opinion lacking a single rationale

.supported by a majority ofthe appellate paneL Wilson appealed the case to this Court.
II. STANDARD OF REVIEW "An award or order.of**th~** administrative lawjudge
... shall be _conclusive and binding as to all questions of_fact
...."**~S** 342.285(1).
6Accordingly, as the statutorily-assigned fact-finder, the AW "has the sole authority to determine the quality, character, and substance ofthe evidence." 

### SquareD Company v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation omitt.ed). Similarly, the "AW, as fact-finder, has the sole authority tojudge the weight

·and inferences to be drawn from the record." 

### Miller v. EastKentucky

Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997) (citation omitted). The AW "mayreject any testimony and believe or disbelieve various parts ofthe
. evidence, regardless ofwhether it comes from the same witness or the same adversary party's.total proof." 

### Magic Coal Company v. Fox, 19 S.W.3d 88, 96**(~y.** 2000) (citing 

### Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, _16 (Ky. 1977)); 

### Halls Hardwood Floor Company v. Stapleto'!-, 16 S.W.3d 327, 329-(Ky. App. 2000). Mere evidence contrary to theAW's decision is not adequate to require reversal on appeal. 

### Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999) (citation omitted). A decision ofthe Workers' Compensation Board shall be reversed on appeal only when "the Board has overlooked ormisconstrued·controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." 

### Western BaptistHospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
III. ANALYSIS Wilson argues that the Court ofAppeals erred in reversing the Board because substantial evidence in the record supports the AW's conclusion that

7the torn tendon in·his left ankle resulted from his work-related misstep.from the ladder in November 2011. ·Forthe reasons explained below, ,we agree. TheAW declared Wilson to be a credible witness and she believed his testimony that he.twisted his left ankle stepping offa ladder atwork and felt pain in his left "foot/ankle" area that was "totally different" from the previous discomfort diagnosed earlierby Dr. Brown. Findings oftheAW supported by substantial evidence are conclusive upon ourreview. KRS 342.285. Derby City does not challenge the finding thatWilson twisted, orrolled, his ankle upon stepping offthe ladderwhile at work. Derby City argues that the medical evidence did not support the AW's finding that the ladder incident caused the torn tendon. Derby City contends that the torn tendon was a· manifestation ofthe preexistingfoot conditions ofplantarfasciitis, a bone spur andheel pain syndrome, for which Dr. Brown recommended surgery to remove the bone spur. Evidence in the record, however, established that: (1) inAugust 2011,

. ' Wilson was diagnosed by Dr. Brown as havingplantarfasciitis, a bone spur, and heel pain syndrome afflicting his left foot; (2) on November 14, 2011, Wilson twisted his left ankle stepping onto the ground from a ladder at work; (3) as reflected in Dr. Hubbard's amended notes, three days laterWilson told Dr. Hubbard about the workplace ankle injury; (4) Dr. Hubbard diagnosed Wilson's condition after the ladder incident as a torn tendon in his left ankle, a condition not observed or diagnosed by Dr. Brown when he sawWilson the previousAugust; (5) the surgical intervention confirmed Dr. Hubbard's \' 8diagnosis ofa left peroneus longus tendon tear; (6) ·Dr. Hubbard opined within
a reasonable degree ofmedical probability the ladderincident ofNovember 2011 "could" have caused.the torn tendon, and he further affirnied that such injury is frequently caused by an accidental twistingfor rolling ofthe foot similar to the event experienced byWilson; however, Dr. Hubbard also opined that the torn tendon "could" have been the "natural progression" ofthe preexisting symptoms Wilson experienced inAugust 2011, anc:i that was what t Dr. Hubbard "felt" he was dealing with at the November 17 examination. As the claimant, Wilson had the burden ofproofas to .every element of his workers' compensation claim, including causation. 

### Magic Coal Company, 19 S.W.3d at 96 (citations omitted). Medical causation must "be proved to a reasonable med_ical probability with expert medical testimony." 

### Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004). Moreover, in assessing medical probability, "it is the quality and substance of

## a: physician's testimony, not the use ofparticular 'magic words,'that determines whether it rises to the

. . level ofreasonable medical probability, i.e., to the level necessary to prove a particular medical fact." Id. (citation omitted)
.. "[W]here medical testimony is concerned, and that testimony is conflicting
... the question ofwho to believe is one exclusively for the [AW]." 

### Pruitt v. BuggBrothers, 547 S.W.2d 123, 124. (Ky. 1977); 

### accordBrown-Forman Corp., 127 S.W.3d. at 621. "Although a party may n_ote evidence which would have supported a conclusion contrary to the AW's decision, such evidence is not an adequate basis for reversal on appeal."

9

### IraA. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000) (citation omitted). The obvious import ofthe medical evidence as construed by the ALJ is that a torn tendon is the kind ofinjury that can, and frequently does, result when someone twists (or "rolls") his ankle in circumstances that include stepping**off~** ladder. Itlogically follows that the torn tendon could reasonably have been determined to be a malady not caused by or associated with the plantarfasciitis, bone spur, and heel pain syndrome diagnosed in August.

· Based upon this combination ofevidence, we.conclude that there was

substantial evidence in the record to support the ALJ's finding ofcausation - a peroneus longus tendon tear is a normal and medically foreseeably consequence ofthe event thatWilson experienced. Wilson satisfied his burden ofproofofestablishingthat the workplace incident caused his injury. In goingforward with the evidence to establish a different cause, itbecomes the burden ofthe employer to show that the injury· is the product ofa preexisting condition or other non-work-related injury. 

### Comair, Inc. v. Helton, 270 S.W.3d 909, 914 (Ky. App. 2008) (citing 

### Finley v. DBMTechnologies, 217 S.W.3d 261, 265 (Ky. App. 2007)). And while there is
no reason to doubt thatWilson had the preexisting conditions ofplantar fasciitis, a bone spur, and heel pain.syndrome condition, the evidence clearly established that those conditions, ifthey existed, were not actively impairing or impedingWilson's ability towork immediately before the ladder incident. The preexisting condition relied upon by Derby Citywas not symptomatic in·that it 10was having no disabling effect onWilson's ability to perform his work prior to

. . November 20} 1. The evidence accordingly does not compel the conclusion that the torn tendon existed before the ladder incident. When the partyhaving the burden ofproofon an issue fails to_convince theAW, the AW's decision will withstand appellate review unless that party demonstrates to the appellate courtthat the evidence in its favor was so overwhelming as to compel a differentfinding. SpecialFund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). Derby City failed to persuade the AW that

- ' Wilson's torn ankle was the result of, or a progressive manifestation of, his preexistingfoot condition. To reverse·that decision, Derby City must show that its evidence was so overwhelming as to compel a finding in its favor. Id. We are not persuaded that the evidence in Derby City's favor compelled a finding in its favor so as to overturn theAW's opinion and the Court ofAppeals erred in concluding otherwise. True enough, Dr. Hubbard tepidly opined that Wilson's preexisting ailments could have caused the torn tendon, but by the
same measure, he also opined thatWilson's misstep from the ladder and the twisting, or "rolling," ofhis ankle couldhave caused the torn tendon, and both opinions are expressed as within a reasonable degree ofmedical.probability. The AW is assigned the responsibility ofresolving the conflicting evidence based upon the totality ofthe evidence. See Square D Company, 862 S.W.2d at 309 ("Where, as here, the medical evidence is conflicting, the question ofwhich evidence to believe is the exclusive province oftheAW."). In light ofDr. Hubbard's equivocal testimony and all ofthe remaining evidence, 11includingWilson's credible description ofhis injury and the undisputed fact thathe had a tom tendon in his left ankle**aft~r** experiencing a painful tum of ( I

. . his foot stepping off_a ladder, the AW haq sufficient basis to resolve the issue inWilson's favor. Derby City rejects the foregoing analysis because "the·board is not justified in disregarding the medical evidence
. . . where the causal relationship · is not apparent to the layman
...." Mengel v. Hawaiian-Tropic Northwest and Central DistributorS, Inc., 618 S.W.2d 184, 187 (Ky. App. 1981). And Derby City contends that "the causal relationship in this case is not apparent to·the layman." First, we are satisfied that neither the AW nor the Board disregarded the medical evidence. The record clearly discloses that the AW and the Board considered all ofthe medical evidence. More importantly, a reasonable layperson the least bit familiar with his own.limbs and life's experiences can readily conceptualize how a twisted ankle can cause the kind ofinjuryWilson experienced, though he may not describe the injury in anatomically accurate**nomen~lature.** Indeed, from a layperson's perspective, stepping offa ladder onto uneven ground and twisting, or "rolling," the left ankle appears to be a J:!luch more likely and plausible explanation for a tom tendon in the left arikle than the preexist<?nt conditions ofplantar fasciitis, a bone spur, and heel pain syndrome in the left foot.

.12IV. CONCLUSION For the foregoing reasons, the opinion ofthe Court ofAppeals is reversed, and the decision.ofthe AW awarding Wilson workers' compensation benefits is reinstated. All sitting
..All concur.

COUNSEL FORAPPELLANT: Joy Buchenberger Jennings Law Offices COUNSEL FORAPPELLEE DERBY CITY SIGN & ELECTRIC, INC.: DouglasAnthony U'Sellis U'Sellis Mayer & Associates COUNSEL FORAPPELLEE HONORABLE JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE: Jane Rice Williams Rice, Hendrickson & Williams COUNSEL FORAPPELLEE WORKERS' COMPENSATION BOARD: DwightTaylor Lovan. Executive Director Office ofWorkers' Claims

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