IMPORTANT NOTICE 

NOT ·To BE PUBLISHED OPINION 

' I 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

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RENDERED: DECEMBER 13, 2017 

. NOT TO BE PUBLISHED 

jupmn~ ~Inurf nf ~tnfutk\! 

2017-SC-000237-WC 

ROBIN D. WILSQN 

v. 

ON APPEAL FROM COURT OF APPEALS 

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 of the Court of Appeals1 

that reversed the decision of the Administrative Law Judge (AW) and the 

Workers' Compensation Board (Board) awarding workers' compensation 

benefits and medical expenses to Appellant as a result of a work-related 

. ' accident that injured his left ankle. Upon review, we reverse the Court of 

Appeals and reinstate the Opinion of the Board. 

I Although Judge Acree wrote the opinion expressing his rationale for reversing 

the Board, neither of the other judges on the panel joined. Judge Taylor concurred 

only in the result without 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. His job required heavy lifting and climbing 

extension ladders to work on the sigD.s. In August 2011,. Wilson had been 

experiencing pain 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 plantar fasciitis, a bone spur on the side of his 

foot, and heel pain syndrome. 

Dr. Brown recommended surgery to remove the bone spur, but Wilson 

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, but Wilson 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 without restrictions. 

Three months later, on November 14, 2011, Wilson descended a ladder 

while working on a sign. As he stepped off the 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. The AW noted that surveillance video from the shop's security 

2 
cameras, "though mostly inconclusive, appears to show Wilson 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 of Wilson's left foot and ankle. As a result of this 

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!i of a torn tendon, 

·and there was no evidence that he anticipated the developm_ent of a torn 

tendon. 

Dr. Hubbard's original notes from the November 17 examination of 

Wilson became a source of controversy because they are strikingly similar to 

the notes made by Dr. Brown the preceding August. For example, both sets of 

notes record: "Condition.has existed for one month." Both sets state: "Onset 

was gradual." Both sets state: "Patient indicates irritation from direct pre·ssure 

and prolonged walking and standing aggravate the condition." Both say: 

"Severity of condition 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." 

3 
The anomaly of Dr. Hubbard's original notes gives rise to Derby City's 

argument that Wilson's tom ankle tendon was not the result of the November 

occurrence, 1stepping off the ladder, but· was instead "a worsening continuum of 

pain that began in July 2011," one month before the August diagnosis of 

plantar fasciitis, bone spur, and heel pain syndrome. The anomaly also cast 

doubt in the mind of the AW about the ~ccuracy of the November 17 notes. 

She concluded that "the initial record from Dr~ Hubbard is not found to be 

conclusive" on the issue of what caused the torn tendon. (Emphasis added.) 

Derby City points out that Dr. Hubbard's original notes make no 

reference to Wilson's claim of a workplace injury due to stepping off a ladder 

three days prior; however, in February 2012, and:well before this action 

commenced, Dr. Hubbard amended his original notes to reflect that Wilson did, 

in fact, report the ladder incident during the November 2011 examination. 

Wilson's reparative surgery in January 2012 was followed by a six-week 

course of physical therapy .. Dr. Hubbard released Wilson to return to work 

without restrictions on June 14, 2012. Wilson's private health insurance paid 

the medical expenses associated with his treatment up until his return to work 

and Wilson directly paid other necessary out-of-pocket costs of his medical 

treatment. 

Soon after returning to work at Derby City, Wilson was laid off. He found 

another job at Glass Sign Company, where he wor~ed without any medical 

restrictions for about five months. He next worked at Louisville Signs without 

4 
i 

medical restrictions for about three months before taking a job with another 

sign company doing the same kind of work but with less lifting and climbing. 

After he returned to work following 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 injury to 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 of Dr. 

Hubbard's original notes from November 17, 2011, the AW .made the following ' . . 

findings with respect to the issue of medical causation of Wilson'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 on November 14, 2011. The surveillance video, though 

mostly inconclusive, appears to show Wilson having difficulty 

walking, if anything. The initial treatment record from Dr. 

Hubbard on [November] 17, 2011 notes a gradual onset but 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 later office notes state the condition is 

work related. Dr. Loeb's report has been reviewed but his -opinion 

on the causation is not adopted herein. The opinion of Dr. Farrage 

on work-relatedness/ causation is not found to be any more helpful 

than that of Dr. Loeb on the issue. It is the review of the records of 

5 
Dr. Hubbard along with the testimony of Wilson which have been 

persuasive on the issue of causation. · 

(Emphasis added.) The ALJ plainly considered the conflicting medical opinions 

on whether Wilson's torn tendon and its surgical repair resulted (rom a 

I 

workplace injury of November 14, 2011, or instead, was the worsening , . . 

manifestation of the 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 of that opinion, arguing that 

the ALJ's findings on causation were not supported by substantial evidence. 

The petition· was denied. Derby City next sought review 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, it was not so unreasonable 

for the AW to infer from the totality of the circumstances evidenced by the lay 

and medical testimony that Wilson's left ankle condition was caused by his 

/ 

work accident." 

Derby City theh appealed to the Court of Appeals. The Court of Appeals 

reversed the Board's decision in a plurality opinion lacking a single rationale 

. supported by a majority of the appellate paneL Wilson appealed the case to 

this Court. 

II. STANDARD OF REVIEW 

"An award or order.of th~ administrative law judge ... shall be 

_conclusive and binding as to all questions of _fact .... " ~S 342.285(1). 

6 
Accordingly, as the statutorily-assigned fact-finder, the AW "has the sole 

authority to determine the quality, character, and substance of the evidence." 

Square D Company v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation omitt.ed). 

Similarly, the "AW, as fact-finder, has the sole authority to judge the weight 

· and inferences to be drawn from the record." Miller v. East Kentucky 

Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997) (citation omitted). The 

AW "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." 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 the AW'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 of the Workers' Compensation Board shall be reversed on 

appeal only when "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." Western Baptist Hospital v. Kelly, 827 

S.W.2d 685, 687-88 (Ky. 1992). 

III. ANALYSIS 

Wilson argues that the Court of Appeals erred in reversing the Board 

because substantial evidence in the record supports the AW's conclusion that 

7 
the torn tendon in· his left ankle resulted from his work-related misstep .from 

the ladder in November 2011. ·For the reasons explained below, ,we agree. 

The AW declared Wilson to be a credible witness and she believed his 

testimony that he. twisted his left ankle stepping off a ladder at work and felt 

pain in his left "foot/ ankle" area that was "totally different" from the previous 

discomfort diagnosed earlier by Dr. Brown. Findings of the AW supported by 

substantial evidence are conclusive upon our review. KRS 342.285. 

Derby City does not challenge the finding that Wilson twisted, or rolled, 

his ankle upon stepping off the ladder while 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 of the preexisting foot conditions of plantar fasciitis, a bone spur 

and heel pain syndrome, for which Dr. Brown recommended surgery to remove 

the bone spur. 

Evidence in the record, however, established that: (1) in August 2011, 

. ' 

Wilson was diagnosed by Dr. Brown as having plantar fasciitis, 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 later Wilson 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 saw Wilson the 

previous August; (5) the surgical intervention confirmed Dr. Hubbard's 

\ 

' 8 
diagnosis of a left peroneus longus tendon tear; (6) ·Dr. Hubbard opined within 

a reasonable degree of medical probability the ladder incident of November 

2011 "could" have caused. the torn tendon, and he further affirnied that such 

injury is frequently caused by an accidental twisting for rolling of the foot 

similar to the event experienced by Wilson; however, Dr. Hubbard also opined 

that the torn tendon "could" have been the "natural progression" of the 

preexisting symptoms Wilson experienced in August 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 of proof as 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 of particular 'magic words,' that determines whether it rises to the 

. . 

level of reasonable 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 of who to believe 

is one exclusively for the [AW]." Pruitt v. Bugg Brothers, 547 S.W.2d 123, 124. 

(Ky. 1977); accord Brown-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 
Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000) 

(citation omitted). 

The obvious import of the medical evidence as construed by the ALJ is 

that a torn tendon is the kind of injury that can, and frequently does, result 

when someone twists (or "rolls") his ankle in circumstances that include 

stepping off~ ladder. It logically follows that the torn tendon could reasonably 

have been determined to be a malady not caused by or associated with the 

plantar fasciitis, bone spur, and heel pain syndrome diagnosed in August. 

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

substantial evidence in the record to support the ALJ's finding of causation - a 

peroneus longus tendon tear is a normal and medically foreseeably 

consequence of the event that Wilson experienced. 

Wilson satisfied his burden of proof of establishing that the workplace 

incident caused his injury. In going forward with the evidence to establish a 

different cause, it becomes the burden of the employer to show that the injury· 

is the product of a preexisting condition or other non-work-related injury. 

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

DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007)). And while there is 

no reason to doubt that Wilson had the preexisting conditions of plantar 

fasciitis, a bone spur, and heel pain. syndrome condition, the evidence clearly 

established that those conditions, if they existed, were not actively impairing or 

impeding Wilson's ability to work immediately before the ladder incident. The 

preexisting condition relied upon by Derby City was not symptomatic in· that it 

10 
was having no disabling effect on Wilson'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 party having the burden of proof on an issue fails to _convince 

the AW, the AW's decision will withstand appellate review unless that party 

demonstrates to the appellate court that the evidence in its favor was so 

overwhelming as to compel a different finding. Special Fund 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 

preexisting foot 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 the AW's opinion and the Court of Appeals 

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 that Wilson's misstep from the ladder and the 

twisting, or "rolling," of his ankle could have caused the torn tendon, and both 

opinions are expressed as within a reasonable degree of medical.probability. 

The AW is assigned the responsibility of resolving the conflicting 

evidence based upon the totality of the evidence. See Square D Company, 862 

S.W.2d at 309 ("Where, as here, the medical evidence is conflicting, the 

question of which evidence to believe is the exclusive province ofthe AW."). In 

light of Dr. Hubbard's equivocal testimony and all of the remaining evidence, 

11 
including Wilson's credible description of his injury and the undisputed fact 

that he 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 

in Wilson'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 of the 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 of injury Wilson 

experienced, though he may not describe the injury in anatomically accurate 

nomen~lature. Indeed, from a layperson's perspective, stepping off a 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 of plantar fasciitis, a bone spur, and heel pain 

syndrome in the left foot. 

.12 
IV. CONCLUSION 

For the foregoing reasons, the opinion of the Court of Appeals is 

reversed, and the decision.of the AW awarding Wilson workers' compensation 

benefits is reinstated. 

All sitting .. All concur. 

COUNSEL FOR APPELLANT: 

Joy Buchenberger 

Jennings Law Offices 

COUNSEL FOR APPELLEE DERBY CITY SIGN & ELECTRIC, INC.: 

Douglas Anthony U'Sellis 

U'Sellis Mayer & Associates 

COUNSEL FOR APPELLEE HONORABLE JANE RICE WILLIAMS, 

ADMINISTRATIVE LAW JUDGE: 

Jane Rice Williams 

Rice, Hendrickson & Williams 

COUNSEL FOR APPELLEE WORKERS' COMPENSATION BOARD: 

Dwight Taylor Lovan. 

Executive Director 

Office of Workers' Claims 

13