RENDERED: DECEMBER 23, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1019-WC

LYONS HR APPELLANT

PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-19-01425

LAKESHA WASHINGTON;

HONORABLE BRENT DYE, ADMINISTRATIVE

LAW JUDGE; and WORKERS’

COMPENSATION BOARD APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND KRAMER, 

JUDGES.

KRAMER, JUDGE: In this workers’ compensation matter, Lakesha Washington 

was awarded temporary total disability benefits (“TTD”), permanent partial 

disability benefits (“PPD”), and medical benefits from Lyons HR for what an 
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Administrative Law Judge (“ALJ”) determined was a compensable low-back 

injury Washington sustained while working for Lyons on July 14, 2019. Lyons 

thereafter appealed to the Workers’ Compensation Board, which affirmed. Now, 

Lyons appeals to this Court.

As it did below, Lyons argues the ALJ committed reversible error by 

relying upon Washington’s medical expert, Dr. Bruce Guberman, as substantial 

evidence in support of Washington’s award because, in its view, Dr. Guberman 

was unaware of Washington’s pre-existing back issues. Lyons also argues there 

was no objective evidence of a harmful change to Washington’s low back due to 

the July 14, 2019 work event. Lyons argues the ALJ erred in adopting the 

maximum medical improvement (“MMI”) date provided by Dr. Guberman for 

Washington’s low back (i.e., December 20, 2019). Further, Lyons argues the ALJ 

erred in finding Washington lacks the physical capacity to return to her previous 

work due to her low-back injury for purposes of the “3” multiplier specified in 

Kentucky Revised Statutes (“KRS”) 342.730(1)(c)1. Upon review, we discern no 

reason to part from the Board’s rationale, set forth below, for rejecting each of 

these same arguments. Thus, we affirm. 

Regarding the procedural and factual history of this matter, we note at 

the onset that it initially involved two separate injuries on two separate dates: (1)

an alleged injury to Washington’s right knee on July 6, 2019, which the ALJ found 
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non-compensable; and (2) the injury to Washington’s low back on July 14, 2019, 

which is the focus of this appeal. Because this appeal only concerns her low-back 

injury, an extensive discussion of the medical evidence related to her alleged rightknee injury is unnecessary. With that said, the Board accurately summarized the 

relevant factual and procedural history of this matter as follows:

Washington testified by deposition on October 31, 2019 

and at the hearing held March 9, 2020. Washington, born 

in June 1991, resides in Lexington, Kentucky. In 

September 2015, a vehicle struck Washington as she was 

crossing the street. An ambulance transported her to the 

emergency room at the University of Kentucky, and she 

completed a course of physical therapy. Washington 

ultimately underwent an ACL reconstructive surgery to 

the right knee, and she missed approximately one year of 

work following the accident. Washington eventually 

returned to work without restrictions, and she testified 

her right knee had fully recovered. Washington denied 

injuring her low back in September 2015.

Washington worked for the Salvation Army at the time of 

her September 2015 accident. Thereafter, she worked at 

a Quality Inn, a beauty supply store, on an assembly line 

packing boxes, and Comfort Inn, in apartment 

maintenance for two years, and for a private property

owner. Washington began working for Lyons at the Four 

Points Sheraton in March 2019 as a housekeeper/assistant 

manager. Washington testified she had no ongoing right 

knee problems when she began working for Lyons, nor 

did she have any low back symptoms at all prior to July 

6, 2019. Washington had no restrictions at the time of 

the July 6, 2019 or July 14, 2019 work events, and she 

was able to perform full duty without limitations.

As assistant manager/housekeeper, Washington managed 

ten to fifteen employees and performed housekeeping 
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tasks on a regular basis. In addition to her management 

duties, she stripped linens, ensured cleaning carts were 

stocked and ready, vacuumed, cleaned bathtubs, and bent 

over onto her hands and knees to mop the floor with a

rag. Washington maneuvered cleaning carts weighing at 

least thirty-five pounds, and lifted them over thresholds. 

She also carried linens, bedding, towels, pillows, and 

soaps.

Washington testified that on July 6, 2019 she knelt down 

to retrieve bed linens from the cleaning cart. When she 

got up, she experienced a pop in her right knee causing 

her [to] fall. Her employer sent Washington to 

Concentra for treatment. Washington was released to full 

duty work after x-rays of her right knee were taken. She

missed no work after the July 6, 2019 event, but had 

continued difficulty with her right knee and required 

assistance with her housekeeping duties.

Washington testified that on July 14, 2019 she slipped in 

water on the bathroom floor and fell onto her back. A 

corroded pipe had apparently ruptured causing the wet 

floor. Washington experienced pain in the middle of her 

back radiating down into her right buttock and leg, and 

numbness in her right leg and foot. Washington was 

transported to the emergency room by ambulance and she 

subsequently treated at Concentra. Washington has not 

returned to any work since the July 14, 2019 work 

incident. 

Washington continues to experience right knee 

symptoms. She also has low back pain radiating into her 

right leg and foot, as well as numbness, tingling, and a 

cold sensation in her right foot. Washington stated she is 

unable to bend or kneel down. Washington estimates she 

is able to lift up to seven pounds and can stand 

continuously for up to twenty minutes at a time due to 

her low back condition. Washington does not believe she 

can return to her job as assistant manager/housekeeper or 
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any of her other previous jobs due to her low back and 

right knee symptoms.

Washington acknowledged she sought counseling for 

depression and anxiety due to the 2015 accident in 

February 2019. However, she disputed or did not recall 

the references to continued knee and back pain, and her 

intention to reach out to pain management.

Both parties filed records from Concentra. A July 11, 

2019 right knee x-ray was reported as normal. An 

August 20, 2019 right knee MRI was negative except for 

the previous placement of an intact ACL graft. Dr. 

Richard Ramirez noted Washington did not show up for 

her August 22, 2019 appointment. He reviewed lumbar 

and right knee MRIs, which he stated did not 

demonstrate a need for additional care. He diagnosed 

right knee and lumbar strains. Dr. Ramirez released 

Washington from his care, found she had attained MMI 

from her injuries, and indicated she could return to full 

duty work without restrictions.

On September 16, 2019, Dr. Norman Ellingsen noted 

Washington reported she previously injured her right 

knee in 2015, and underwent ACL reconstruction 

surgery. Washington reported the July 6, 2019 work 

event, and a subsequent slip and fall injuring her low 

back and right knee. Washington’s complaints included 

low back pain and numbness radiating into her right leg 

and foot. Washington denied having previous low back 

issues. Dr. Ellingsen reviewed an August 20, 2019 

lumbar MRI, which demonstrated minimal spondylosis 

with facet mild hypertrophy and slight disc bulges at L4-

L5 and L5-S1. Dr. Ellingsen diagnosed a lumbar strain 

and right knee post remote right ACL reconstruction. He 

recommended a right knee MRI and lumbar epidural 

injections. He also restricted Washington from working 

until completion of the right knee MRI.
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Lyons filed medical records predating the July 2019 

work injuries from UK Health Care, Integrated Medical 

Solutions, Clark Regional Medical Center, and Newtown 

Counseling Center. On September 18, 2015, Washington 

presented at the UK emergency department after a car 

struck her right side as she was crossing the street. 

Trauma scans were negative. Washington [was] 

diagnosed with leg pain.

Washington treated with Dr. Thomas Huhn and Dr. 

Timothy Wilson at integrated Medical Solutions in 2015 

and 2016. On October 6, 2015, Washington reported low 

back and right knee injuries due to the car accident. Dr. 

Huhn ordered MRIs of her low back and right knee, as 

well as physical therapy, prescribed medication, and 

restricted her from work. Washington complained of 

increased right leg pain and numbness in her foot on 

October 26, 2015. A November 16, 2015 right knee MRI 

demonstrated partial tears of the proximal MCL and 

ACL, and a lumbar MRI demonstrated an annular disc 

bulge at L4-5. On November 23, 2015, Washington 

reported intermittent right knee symptoms and flare-ups 

of right-sided back pain into her buttocks, but denied 

radiculopathy or numbness and tingling. Dr. Huhn 

diagnosed right knee pain with partial tears of the 

proximal MCL and ACL, and a lumbar strain. He 

referred her for an orthopedic evaluation for both 

conditions. He continued her physical therapy and 

medication. Washington attended physical therapy from 

October 2015 through December 2016 for her right knee 

injury.

Dr. Wilson examined Washington on February 10, 2016 

for her right knee complaints. He noted Washington had 

back pain radiating down her right leg. He diagnosed a 

right knee ACL tear with instability, and prescribed a 

right knee sleeve. Dr. Wilson saw her again on March 2, 

2016 for her right knee symptoms. A September 29, 

2016 operative report indicates Dr. Michael Heilig 
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performed a right knee ACL arthroscopic reconstruction 

and synovectomy.

Lyons also filed the February 1, 2019 and February 11, 

2019 Newtown Counseling Center records. Washington 

was diagnosed with PTSD and a severe major depressive 

disorder stemming from several traumas, including the 

2015 accident. On February 11, 2019, the counselor 

noted the following:

The client reported constant pain after being 

run over, and subsequent surgeries not 

helping . . .

The client experiences constant pain in her 

knees and back; she reported getting surgery 

at the recommendation of her doctor after 

her car accident. The client reported it did 

not help and made things worse, so she does 

not want to see him anymore. . . .

Client plans to reach out to doctor again for 

pain management. . . .

What barrier impact [sic] your vocational 

success?

Client has constant back and knee pain . . . .

Dr. Rich Lyon evaluated Washington on November 25, 

2019 at Lyons’ request. Washington reported a car 

struck her in 2016, and she subsequently underwent right 

knee surgery. She also reported the July 6, 2019 and July 

14, 2019 work events. Washington’s complaints 

included back pain radiating down her right leg with 

numbness and tingling. Dr. Lyon reviewed the medical 

records and concluded, “the back pain was active and 

pre-existed the subject work event. Although not a result 

of the subject fall, it is my opinion she would benefit 

from a trial of epidural steroid injections and physical 

therapy. However, it is my opinion she is not a candidate 
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for pain medication.” Dr. Lyon concluded the July 2019 

work events did not cause Washington’s low back 

symptoms. Dr. Lyon did not assign restrictions.

In a February 10, 2020 supplement, Dr. Lyon indicated 

he reviewed additional records from 2015 through 2016, 

and Dr. Guberman’s report. He emphasized the February 

1, 2019 and February 11, 2019 counseling records 

confirmed Washington experienced back and knee pain 

prior to the work event. Dr. Lyon assessed an 8% 

impairment rating pursuant to the AMA Guides for the 

lumbar condition, which he opined was active and preexisted the July 2019 work events. Dr. Lyon opined 

there is no objective evidence of a lumbar injury due to 

the work event.

Washington filed Dr. Guberman’s December 20, 2019 

report. Dr. Guberman evaluated her at the request of her 

counsel. Washington reported she slipped on water in a 

bathroom and fell on January 14, 2019, injuring her right 

knee and low back. She reported she experienced right 

knee pain while carrying linens one week prior to that 

incident. Dr. Guberman noted Washington’s treatment at 

Concentra, including the August 20, 2019 lumbar MRI 

demonstrating minimal spondylosis with facet mild 

hypertrophy and a slight disc bulge at L4-5 and L5-S1. 

Washington complained of low back pain radiating down 

her right lower extremity, numbness, tingling, and 

coldness in her right foot.

The report does not identify the records that Dr. 

Guberman reviewed in forming his opinion. However, 

Washington reported the 2015 accident and subsequent 

surgery to her right knee. Washington denied any prior 

low back injuries or symptoms. The report does not 

discuss the medical or counseling records predating the 

July 2019 work incidents. Dr. Guberman diagnosed 

Washington with a chronic post-traumatic strain and

musculo-ligamentous injury to the lumbar spine, 

superimposed on pre-existing but dormant degenerative 
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disc and joint disease due to the slip and fall. Dr. 

Guberman assessed an 8% impairment rating to the 

lumbar spine pursuant to the AMA Guides, wholly 

attributable to the July 2019 work event. Dr. Guberman 

noted the MRI demonstrated evidence of pre-existing 

degenerative changes. However, he noted there was no 

evidence Washington had symptoms, non-verifiable 

radicular pain, loss of motion, interference with activities 

of daily living, functional limitations, or lumbar 

impairment before the July 2019 injury. 

Dr. Guberman opined Washington attained MMI on 

December 20, 2019, the date of his examination. Dr. 

Guberman opined Washington does not retain the 

physical capacity to return to the type of work performed 

at the time of her injury. He restricted Washington from 

standing and/or walking for more than twenty minutes at 

a time, or more than three or four hours in an eight-hour 

workday. He opined Washington is unable to kneel, 

squat, climb up or down ladders, or work at heights, and 

she should avoid stairs.

In the opinion, the ALJ first determined the July 6, 2019

work event resulted in a temporary right knee injury. 

Regarding the July 14, 2019 work incident, the ALJ also 

determined Washington sustained a temporary right knee 

injury, which resolved and she returned to its baseline 

level as of August 22, 2019. The ALJ determined 

Washington sustained a permanent low back injury due 

to the July 14, 2019 work event, stating verbatim as 

follows:

The July 14, 2019 acute traumatic event 

produced a permanent low back injury. The 

ALJ determines that Dr. Guberman’s 

findings, opinions, and conclusions are the 

most credible and persuasive. The primary 

reasons are the objective diagnostic studies 

and Washington’s testimony better supports 

his opinions.
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The February 11, 2019 Newtown 

Counseling Center note establishes that 

Washington advised she experienced back 

pain. This note, however, does not 

specifically localize where exactly the pain 

was located. It also does not state that 

Washington experienced radicular-type 

symptoms. The ALJ infers that 

Washington’s primary symptoms involved 

her right knee, which had required extensive 

treatment and surgery. The note indicated 

that the surgery had not helped.

The ALJ infers that the right knee problem 

was the one causing Washington the most 

difficulty, and potentially required pain 

management treatment. Although 

Washington actively experienced back pain, 

there is not any credible evidence that it 

produced ongoing radicular-type symptoms. 

This, however, changed after the July 14, 

2019 acute traumatic event.

Washington underwent a lumbar spine MRI 

on August 20, 2019. The MRI revealed that 

Washington has L4-SI disc bulges. It also

revealed spondylosis, and mild facet 

hypertrophy. Dr. Lyon opined the study 

further showed “slight retrolisthesis of L5 on 

S1.” The August 20, 2019 MRI showed 

more advanced findings than the one 

Washington underwent approximately three 

years and nine months earlier.

On November 16, 2015, Washington

underwent a lumbar spine MRI. This study 

only showed an L4-5 annular disc bulge. It 

did not reveal any significant L5-S1 

findings. The August 20, 2019 MRI, which 
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Washington underwent after falling on her 

back, revealed an L5-S1 disc bulge and 

slight retrolisthesis.

The ALJ finds Washington’s acute traumatic 

event produced a lumbar strain and further 

aggravated her underlying degenerative disc 

and joint disease. Drs. Ramirez, Ellingsen, 

and Guberman diagnosed a lumbar spine 

strain. Dr. Guberman further opined that the 

strain was superimposed on Washington’s 

degenerative disc and joint disease.

Again, although Washington experienced 

some prior active back pain, there is not any 

credible evidence her symptoms actively 

radiated into her right hip or leg. Dr. 

Guberman noted that Washington had, 

“radiation of pain into her right leg, and 

those are non-verifiable radicular 

complaints.” He also found Washington had 

reduced motion. This is an objective 

medical finding. There is also not any 

credible evidence that Washington actively 

experienced reduced lumbar motion 

immediately before her work-related trauma 

occurred.

Washington testified that her low back 

symptoms have persisted, and actively cause 

functional problems. The credible evidence 

establishes Washington’s symptoms have 

persisted, and her low back condition has 

not returned to its preinjury – slightly 

symptomatic, and non-radicular symptoms –

state. The ALJ finds that the July 14, 2019 

work-related trauma caused a low back 

strain/sprain and further aroused and 

exacerbated Washington’s underlying preexisting degenerative disc and joint disease.
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The ALJ, relying upon Dr. Ramirez, determined 

Washington reached MMI from her temporary right knee 

injury on August 22, 2019. The ALJ determined 

Washington attained MMI from her low back injury on 

December 20, 2019, the date Dr. Guberman examined 

her. He found Dr. Ramirez’s opinion that Washington 

reached MMI on August 22, 2019 was unpersuasive 

since he did not examine her on that date. The ALJ also

noted both Drs. Ellingsen and Lyon recommended 

additional medical treatment for Washington’s lumbar 

condition after August 22, 2019. Dr. Ellingsen

recommended lumbar steroid injections on September 16, 

2019. Dr. Lyon also recommended a trial of epidural 

steroid injections and physical therapy on November 25, 

2019. The ALJ awarded TTD benefits from July 15, 

2019 through December 20, 2019.

The ALJ relied upon the 8% impairment rating assessed 

by Dr. Guberman for Washington’s low back injury, 

fully attributable to the July 14, 2019 work event. The 

ALJ noted there was no credible evidence she actively 

experienced radicular symptoms or reduced lumbar 

motion immediately prior to the work-related trauma. 

Instead, the ALJ found the evidence demonstrated 

Washington experienced just low back pain, which did 

not warrant an impairment rating. The ALJ determined 

Washington is not permanently totally disabled from her 

work injuries. The ALJ also found Washington does not 

retain the physical capacity to return to her pre-injury 

work based both upon Dr. Guberman’s opinion and her 

own testimony.

The ALJ awarded TTD benefits, PPD benefits, and 

medical benefits for Washington’s low back injury. The 

ALJ awarded limited medical benefits from July 6, 2019 

through July 11, 2019 for Washington’s temporary July 

6, 2019 right knee injury. The ALJ awarded limited 

medical benefits from July 14, 2019 through August 22, 
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2019 for Washington’s temporary July 14, 2019 right 

knee injury.

Lyons filed a petition for reconsideration essentially 

raising the same arguments it [would later raise on appeal 

before the Board]. The ALJ denied the petition, making 

the following additional findings of fact:

First, the Defendant asserts the ALJ patently 

erred, because he “completely dismisses the 

pre-existing medical records as being 

immaterial.” The ALJ respectfully 

disagrees. The ALJ accurately understood 

and summarized these records. The ALJ 

further explained the reason why he chose 

not to follow them.

The ALJ addressed the Plaintiff’s prior and 

most recent lumbar spine MRIs. The ALJ 

also analyzed the Newtown Counseling 

records, and explained why, at least for the 

low back condition, he did not find them 

persuasive.

Just because the Plaintiff may have 

experienced radicular-type symptoms in 

early 2016, does not automatically mean she 

also actively experienced them immediately 

before her work injury. As the ALJ noted, 

the 2019 lumbar spine MRI showed more 

advanced findings than the 2015 MRI.

Secondly, the Defendant asserts the ALJ 

patently erred, because “there are no 

objective harmful back changes identified 

after the July 14, 2019 event.” The ALJ 

respectfully disagrees. The Defendant 

overlooks the objective August 20, 2019 

MRI’s findings, as well as Dr. Bruce 

Guberman’s objective findings that the 
-14-

Plaintiff had reduced lumbar motion. These 

constitute objective medical findings.

Third, the Defendant asserts the ALJ 

patently erred, because Dr. Lyon is the more 

qualified physician, and Dr. Guberman did 

not know the Plaintiff had a pre-existing 

back condition. The ALJ respectfully 

disagrees.

The Defendant points out that Dr. Lyon is an 

orthopedic physician, whereas Dr. 

Guberman is not. Just because a person 

does not have specialized training, does not 

mean he is not an expert in a particular field 

or subject. Washington v. Goodman, 830 

S.W.2d 398, 400 (Ky. App. 1992). The 

Washington Court stated that “[a]ny lack of 

specialized training goes only to the weight, 

not to the competency, of the evidence.” Id.

The ALJ may consider the medical witness’ 

credentials and qualifications when 

weighing the evidence. Yocum v. Emerson 

Elec. Co., 584 S.W.2d 744 (Ky. App. 1979). 

The ALJ, however, is not required to 

provide a specialist’s opinions greater 

weight than a non-specialist’s opinions. Id.

An ALJ may rely on a physician’s causation 

opinion, even when it is based on an 

incomplete history, if other credible and 

substantial evidence support the physician’s 

opinion. GSI Commerce v. Thompson, 409

S.W.3d 361, 365 (Ky. App. 2012). The 

reason is the physician’s incomplete history 

does not automatically invalid [sic] his/her 

opinions, it only affects the credibility, 

persuasiveness and weight, which the ALJ 
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determines. Luttrell v. Cardinal Aluminum 

Co., 909 S.W.2d 334 (Ky. App. 1995).

The Cepero case, which the Defendant cited, 

also supports this principle. Cepero v. 

Fabricated Metals Corp., 132 S.W.3d 839, 

842 (Ky. 2004). The Cepero Court stated 

that a “[m]edical 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).

The Cepero case thus stands for the 

principle that “. . . where it is irrefutable that 

a physician’s history regarding work-related 

causation is corrupt due to it being 

substantially inaccurate or largely 

incomplete [and there is not any other 

credible evidence that supports it], any 

opinion generated by a physician on the 

issue of causation cannot constitute 

substantial evidence.” Id.

Although Dr. Guberman may not have 

reviewed the Plaintiff’s prior low back 

medical records, or knew she actively 

experienced some minor low back pain, he 

did review the August 20, 2019 MRI or at 

least its report. This MRI revealed more 

advanced findings than the one the Plaintiff 

underwent following her 2015 motor vehicle 

accident. The new MRI, in fact, showed 

pathology involving a completely new disc 

level (L5-S1). The L5-S1 level revealed a 

bulge and slight retrolisthesis.

Dr. Guberman not having a completely 

accurate history does not automatically 

disqualify his opinion. It simply affected his 
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opinion’s weight, credibility, and

persuasiveness. The ALJ found the 

objective MRI, which showed additional 

pathology, supported Dr. Guberman’s 

ultimate opinion.

The ALJ made the following findings addressing Lyons’ 

arguments regarding MMI and Washington’s physical 

capacity to return to her previous work:

Fourth, the Defendant asserts the ALJ 

patently erred, because he found the 

temporary right knee injury and the 

permanent low back injury reached 

maximum medical improvement on different 

dates. The ALJ respectfully disagrees.

Not all body parts heal at the same rate, and 

reach MMI at the same time. The ALJ’s 

decision explains why the ALJ determined 

the right knee and low back reached MMI 

on different dates.

. . . .

It is immaterial whether the Plaintiff actually 

underwent the recommended injections or 

physical therapy. The ALJ never stated that 

the Plaintiff required this treatment to reach 

MMI. Instead, these recommended 

treatment forms, at least to the ALJ, 

supported Dr. Guberman’s later MMI date 

and the fact Plaintiff had not reached MMI 

on August 22, 2019 or the date that Dr. 

Lyon’s opinion suggests.

Finally, the Defendant, in pertinent part, 

asserts the ALJ patently erred, because 

“[f]inding this particular Plaintiff to be 

credible is an abuse of discretion . . . . There 
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is nothing remotely credible about this 

Plaintiff.” The ALJ respectfully disagrees.

The ALJ has the ability to pick and choose 

which evidence to find credible and 

persuasive. This includes evidence from the 

same witness or proof. The ALJ found the 

Plaintiff credible in some regards, while not 

credible in others.

An ALJ may rely on the claimant’s selfassessment, concerning his/her physical 

abilities, when determining whether the 

claimant retains the physical capacity to 

perform his/her pre-injury work. Ira A. 

Watson Dept. Store v. Hamilton, 34 S.W.3d 

48 (Ky. 2000); Carte v. Loretto 

Motherhouse Infirmary, 19 S.W.3d 122 (Ky. 

App. 2000). A claimant’s testimony, 

however, does not compel any particular 

result. Hush v. Abrams, 584 S.W.2d 48 

(Ky. 1979). Moreover, an interested

witness’s testimony, even if un-contradicted, 

does not bind the fact-finder. Grider Hill 

Dock v. Sloan, 448 S.W.2d 373 (Ky. 1969); 

Bullock v. Gay, 177 S.W.2d 883 (Ky. 1944).

The ALJ appropriately relied on the 

Plaintiff’s credible testimony and Dr. 

Guberman’s credible opinion to find that the 

Plaintiff did not retain the physical capacity 

to perform her pre-injury job.

Lyons subsequently appealed to the Board. There, reiterating its 

accusations that Washington had been dishonest about the history and extent of her 

low-back symptoms, Lyons continued to assert the ALJ had erred in assessing the 

weight of the evidence. Specifically, it urged that pursuant to the holding of 
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Cepero,

1 Dr. Guberman’s opinion could not constitute substantial evidence capable 

of supporting the ALJ’s determination that Washington had sustained a workrelated low-back injury because Washington had not informed Dr. Guberman of 

her pre-existing back issues indicated in the 2015 and 2016 medical records or in 

her February 2019 counseling records. 

Citing Dr. Lyon’s medical opinion, Lyons argued no objective 

evidence supported Washington sustained a harmful change to her low back due to 

the July 14, 2019 work event.

Regarding MMI, Lyons argued the ALJ erred in relying upon the date 

specified in Dr. Guberman’s report (i.e., December 20, 2019). Lyons maintains 

that while Dr. Guberman examined Washington on that date, Dr. Guberman’s 

report failed to explain why an earlier date may not have been more appropriate.

Finally, Lyons argued the ALJ erred in finding Washington lacks the 

physical capacity to return to her previous work due to her low-back injury for 

purposes of applying the “3” multiplier to Washington’s award. This argument, 

like those preceding it, was largely premised upon Lyons’ perception of 

Washington’s credibility. Furthermore, Lyons asserted Washington had not been 

given any restrictions relating to her low back.

Upon review, the Board disposed of Lyons’ arguments as follows:

 

1

132 S.W.3d 839.
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Lyons requests this Board to re-weigh the evidence and 

substitute its judgment for that of the ALJ. This we 

cannot do. The ALJ acted squarely within his discretion 

in relying upon the opinions of Dr. Guberman instead of 

those provided by Dr. Lyon. The ALJ accurately 

summarized the evidence, provided a thorough analysis, 

and specifically outlined why he relied upon Dr. 

Guberman’s opinion over those of Dr. Lyon regarding 

Washington’s low back condition. The ALJ was not 

compelled to find Washington’s low back symptoms 

were due to the 2015 accident.

Lyons’ reliance on Cepero v. Fabricated Metals Corp., 

supra, is misplaced. Cepero involved not only a 

complete failure to disclose, but also affirmative efforts 

by the employee to cover up a significant injury to the 

left knee two and a half years prior to the alleged workrelated injury to the same knee. The prior, non-workrelated injury left Cepero confined to a wheelchair for 

more than a month. The physician upon whom the ALJ 

relied was not informed of this prior history by the 

employee and had no other apparent means of becoming 

so informed. Every physician who was adequately 

informed of this prior history opined Cepero’s left knee 

impairment was not work-related but, instead, was 

attributable to the non-work-related injury two and a half 

years previous. In Cepero, the Supreme Court found a 

medical opinion erroneously premised on the claimant’s 

egregious omission of directly relevant past medical 

history was sufficient to mandate reversal based on an 

insufficient history received by the medical expert. The 

Court held a “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).

The ALJ acknowledged in the Order on petition for 

reconsideration that Dr. Guberman may not have 

reviewed Washington’s previous records related to her 

low back or have been aware of her prior symptoms. 
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However, he identified other credible evidence in the 

record supporting Dr. Guberman’s opinion that 

Washington’s low back condition was due to the July 14, 

2019 work event. Specifically, the ALJ found persuasive 

the August 2019 MRI when compared to the previous 

November 2015 MRI. The ALJ noted the 2015 MRI 

demonstrated a disc bulge at L4-5 while the new MRI 

showed pathology at a completely new level at L5-S1. 

The ALJ additionally noted the February 2019 

counseling records did not specify the exact location of 

Washington’s back pain, and did not state whether she 

experienced radicular symptoms. The ALJ noted the 

absence of records establishing Washington complained 

of radicular symptoms from early 2016 until July 14, 

2019. The ALJ identified other credible evidence in the 

record supporting Dr. Guberman’s opinion, and therefore 

he was not required to disregard it. Any incompleteness 

in the history goes to the weight assigned to an opinion. 

The weighing of the evidence lies solely within the 

discretion of the ALJ in his role as fact-finder. Luttrell v. 

Cardinal Aluminum Co., 909 S.W.2d 334 (Ky. App. 

1995).

We additionally find substantial evidence supports the 

ALJ’s determination Washington sustained a low back 

injury caused by the July 14, 2019 work event. The ALJ 

relied upon Dr. Guberman’s finding of reduced lumbar 

motion and noted the new pathology demonstrated on the 

August 2019 MRI in determining the work incident 

resulted in a harmful change to Washington’s low back. 

The ALJ provided a detailed explanation addressing why 

he did not find the previous medical records persuasive. 

Dr. Guberman’s opinion, in conjunction with the 

comparison of the 2015 and 2019 lumbar MRIs, 

constitutes substantial evidence supporting the ALJ’s 

determination. Therefore, we affirm on this issue.

We likewise determine the ALJ committed no error in 

adopting the December 20, 2019 MMI date opined by Dr. 

Guberman. Dr. Guberman’s opinion constitutes 
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substantial evidence upon which the ALJ could rely, 

including his opinion of MMI. The ALJ also noted two 

physicians recommended additional lumbar treatment 

subsequent to the earlier MMI date provided by Dr. 

Ramirez. In the Order on reconsideration, the ALJ 

explained why he determined Washington reached MMI 

on different dates for her right knee and low back 

injuries. Substantial evidence supports the ALJ’s 

determination that Washington attained MMI from her 

low back injury on December 20, 2019.

Substantial evidence also supports the ALJ’s 

determination Washington does not retain the physical 

capacity to return to her work as an assistant 

manager/housekeeper. The ALJ relied upon 

Washington’s testimony, as well as Dr. Guberman’s 

opinion. Washington testified she performed 

housekeeping duties on a regular basis. She stripped 

linens, prepared and stocked cleaning carts, and pushed 

and lifted carts weighing at least thirty-five pounds. She 

was also required to bend down onto her hands and knees 

to mop the floor. Washington also navigated stairs, and 

carried linens and product. Washington described her 

current low back symptoms and stated she could not 

return to the type of work she performed at the time of 

the July 14, 2019 injury, “because I hurt my back and I 

hurt my bum, well, my lower part all the way down. And 

plus the job description what I have to do, it’s no way 

that I can like go through with it . . . .” Contrary to 

Lyons’ assertion, the ALJ was permitted to give weight 

to Washington’s own testimony regarding her retained 

physical capacity and occupational disability. Hush v. 

Abrams, 584 S.W.2d 48 (Ky. 1979).

Dr. Guberman noted Washington complained of lumbar 

pain radiating into her right hip, leg, and foot, numbness 

and tingling in her right foot, and a cold sensation in her 

right foot. She also reported bending, stooping, lifting 

heavy objects, and prolonged sitting, standing, or 

walking worsened her low back symptoms. After 
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reviewing the physical requirements of Washington’s 

job, Dr. Guberman opined she does not retain the 

physical capacity to return to her former job. He 

restricted Washington from standing and/or walking 

combined for a total of more than 20 minutes at a time, or 

more than 3 or 4 hours in an 8-hour workday. He opined 

Washington is unable to kneel, squat, climb up or down 

ladders, or work at heights, and should avoid stairs.

Washington’s testimony, in conjunction with Dr. 

Guberman’s restrictions and his opinions on her physical 

ability to return to work, constitute substantial evidence 

supporting the ALJ’s determination Washington does not 

retain the physical capacity to return to work as an 

assistant manager/housekeeper due to her lumbar injury.

As indicated, Lyons now repeats the arguments it offered to the ALJ 

in its petition for reconsideration and to the Board in its petition for review. In 

Western Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992), the Kentucky 

Supreme Court described the role of the Court of Appeals in reviewing decisions 

of the Board: “The function of further review of the WCB in 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 evidence so flagrant as to cause gross injustice.” Id. at 687-88. 

With that said, as the Board recognized in its own review of this 

matter, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine 

the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 

S.W.2d 308 (Ky. 1993). An ALJ may draw reasonable inferences from the 
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evidence, 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. Jackson v. General Refractories Co., 581 S.W.2d 10 

(Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977). 

Although a party may note evidence supporting a different outcome than reached 

by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. 

Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). Rather, it must be shown there 

was no evidence of substantial probative value to support the decision. Special 

Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). Neither the Board, as an appellate 

tribunal, or this Court may usurp the ALJ’s role as fact-finder by superimposing its 

own appraisals as to weight and credibility or by noting reasonable inferences that 

otherwise could have been drawn from the evidence. Whittaker v. Rowland, 998 

S.W.2d 479 (Ky. 1999). 

In sum, Lyons remains dissatisfied with what the ALJ regarded as 

substantial evidence, and how that evidence was weighed.2 However, that is little 

reason to part with the Board’s sound analysis, which we hereby adopt. The ALJ 

 

2 Lyons also insinuated, in one sentence of its fifteen-page brief before the Board, that by 

contrasting the report of Washington’s 2015 MRI with that of her 2019 MRI, noting the 

differences between the two, and citing those differences as evidence of objective changes in 

Washington’s low back over time, the ALJ effectively rendered an improper medical opinion. 

While Lyons’ formerly one-sentence insinuation in that vein has now become a two-page 

argument before this Court, it is enough to say that it deserves no more analysis than what it was 

given by the Board: Nothing about the ALJ’s discussion of that evidence suggests that the ALJ 

overstepped his fact-finding authority.
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correctly applied the law; and because the ALJ’s rulings were reasonable under the 

evidence, they may not be disturbed on appeal. We therefore AFFIRM.

ALL CONCUR.

BRIEF FOR APPELLANT:

Donald J. Niehaus

Lexington, Kentucky

BRIEF FOR APPELLEE LAKESHA 

WASHINGTON:

McKinnley Morgan

London, Kentucky