IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

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

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

CASE IN ANY COURT OF THIS STATE; HOWEVER, 

UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

BEFORE THECOURT. OPINIONS CITED FOR CONSIDERATION 

BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

DECISION IN THE FILED DOCUMENT AND A COPY. OF THE 

ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: DECEMBER 17, 2015 

NOT TO BE PUBLISHED 

,Suprrutt Court of 7,firTtiftlavr LI 

2015-SC-000137-WC 

(D)AT 

JEFF PACE APPELLANT 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2014-CA-000798-WC 

WORKERS' COMPENSATION NO. 01-69052 

KENTUCKY DARBY COAL CO., INC.; 

HONORABLE GRANT S. ROARK, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

Appellant, Jeff Pace, appeals a Court of Appeals decision which affirmed 

the Workers' Compensation Board's ("Board") opinion that affirmed the finding 

he reached maximum medical improvement ("MMI") by January 2006. Pace 

argues that the Administrative Law Judge ("ALJ") erred by finding he reached 

MMI by January 2006 because there was no evidence he was able to return to 

work by that time. For the below stated reasons, we affirm the Court of 

Appeals. 

Pace was injured on November 9, 2001, when a rock fell on him while 

operating a continuous miner machine on behalf of his employer, Kentucky 

Darby Coal Co., Inc. ("Darby"). The fallen rock caused multiple fractures in 
Pace's pelvis and back. Darby paid Pace temporary total disability ("TTD") 

benefits from November 15, 2001, through May 9, 2011. 

Darby filed an application for an adjustment of injury claim on August 

10, 2011. Darby admitted that Pace was injured while working for them, but 

alleged he was not totally disabled during the time he received TTD benefits. 

Darby presented evidence indicating Pace was working off and on from 2006 

through 2011 while receiving TTD benefits. As such, Darby alleged Pace 

committed fraud. 

The report of Dr. Martin Fritzhand was submitted as part of the 

proceeding. Dr. Fritzhand performed a thorough review of Pace's medical 

condition and records while preparing his report. However, Dr. Fritzhand did 

not specifically state why he believed Pace reached MMI as of January 2006. 

The ALJ, after a review of the evidence, made the following findings: 

[t]he parties also dispute the point at which [Pace] reached MMI. 

[Pace] maintains he still has not reached MMI and is entitled to 

additional TTD. However, the [ALJ] is persuaded by the opinion of 

Dr. [Martin] Fritzhand that [Pace] reached MMI as of January, 

2006. In reaching this conclusion, the [ALJ] is also persuaded by 

the application [Pace] submitted to Black Mountain Coal in which 

[Pace] indicated he had returned to work from 2006 through 2010, 

which is consistent with Dr. Fritzhand's determination of MMI. 

Accordingly, it is determined [Pace] reached MMI as of January 1, 

2006. 

The ALJ also made a finding that Pace worked in 2006. 

Based on the finding that Pace reached MMI as of January 1, 2006, the 

ALJ awarded him partial permanent disability ("PPD") benefits to run for 520 

weeks from that date. But, the ALJ also awarded Darby a credit against the 

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past-due PPD benefits for the overpayment of TTD benefits which occurred 

after January 1, 2006. 

Pace filed a petition for reconsideration challenging the date the ALJ 

found he reached MMI. The ALJ issued an order on petition for 

reconsideration which reopened proof on the limited issue of whether Pace was 

employed in 2006. Pace appealed this. order to the Board, but the Board 

dismissed the appeal as interlocutory and remanded the matter to the ALJ. On 

remand, Pace submitted additional evidence to the ALJ. 

The ALJ issued a second order on petition for reconsideration in which 

he changed his mind and found that Pace did not return to work in 2006. 

However, he also found nothing in the newly submitted evidence to change his 

previous finding that Pace reached MMI as of January 2006. In making this 

finding, the ALJ again relied on Dr. Fritzhand's opinion. Therefore, the ALJ 

again found that Darby was entitled to a credit against the past-due PPD 

benefits for the TTD benefits paid to Pace after January 1, 2006. Pace 

appealed to the Board who affirmed. The Court of Appeals also affirmed, and 

this appeal followed. 

The Board's review in this matter was limited to determining whether the 

evidence is sufficient to support the ALJ's findings, or if the evidence compels a 

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky.' 1992). 

Further, the function of the Court of Appeals is to "correct the Board only 

where the Court perceives the Board has overlooked or misconstrued 

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

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evidence so flagrant as to cause gross injustice." Id. at 687-88. Finally, review 

by this Court "is to address new or novel questions of statutory construction, 

or to reconsider precedent when such appears necessary, or to review a 

question of constitutional magnitude." Id. The AI,J, as fact-finder, has the sole 

discretion to judge the credibility of testimony and weight of evidence. 

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). 

Additionally, where the party who bears the burden of proof is successful 

before the ALJ, the question on appeal is whether the decision is supported by 

substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. 

App. 1984). Substantial evidence is defined as evidence of relevant 

consequence, having the fitness to induce conviction in the minds of 

reasonable people. Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 

1971). 

Pace argues that the ALJ erred by finding that he reached MMI by 

January 2006. He contends that since he did not return to work in 2006 he 

had not reached MMI and therefore Darby should not receive a credit for TTD 

benefits paid after January 2006. However, the ALJ in his second order on 

petition for reconsideration stated that he based his conclusion on the date 

Pace reached MMI on the opinion of Dr. Fritzhand and not on Pace's work 

history. While Pace contends that Dr. Fritzhancl's opinion is insufficient 

because he did not state why he found Pace reached MMI as of January 2006, 

we note that the doctor's failure to provide his reasoning does not mandate 

rejection of his opinion. See Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). 

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It is clear that Dr. Fritzhand thoroughly reviewed Pace's medical history in 

preparing his report. Additionally, while Dr. Fritzhand's report indicates that he 

thought Pace returned to work in 2006, there is no indication that the doctor 

relied on that in determining the date Pace reached MMI. The ALJ's finding 

that Pace reached MMI as of January 2006 is supported by substantial 

evidence and shall not be disturbed on appeal. 

There are two requirements for a worker to receive TTD benefits: 1) that 

the worker must not have reached MMI; and 2) that the worker must not have 

reached a level of improvement that would permit a return to employment. 

KRS 342.0011(11)(a); Double L Construction, Inc. v. Mitchell, 182 S.W.3d 509, 

513-14 (Ky. 2005). Thus, since Pace reached MMI on January 1, 2006, he was 

not eligible for TTD benefits after that date, and the ALJ correctly awarded 

Darby a credit. 

For the above stated reasons, we affirm the decision of the Court of 

Appeals. 

Minton, C.J.; Abramson, Cunningham, Keller, Noble, and Venters, JJ., 

sitting. All concur. Wright, J., not sitting. 

COUNSEL FOR APPELLANT, 

JEFF PACE: 

Johnnie L. Turner 

COUNSEL FOR APPELLEE, 

KENTUCKY DARBY COAL CO., INC.: 

James William Herald, III 

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