RENDERED: AUGUST 22, 2024

TO BE PUBLISHED

Supreme Court of Kentucky

2023-SC-0479-WC

LABORATORY CORP OF AMERICA APPELLANT 

V. 

ON APPEAL FROM COURT OF APPEALS

NO. 2023-CA-0604

WORKERS’ COMPENSATION NO. WC-21-95319

HUNTER SMITH; JOHN MCCRACKEN, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS’ COMPENSATION BOARD 

APPELLEES 

AND

2023-SC-0484-WC

HUNTER SMITH CROSS-APPELLANT 

V. 

ON APPEAL FROM COURT OF APPEALS

NO. 2023-CA-0604

WORKERS’ COMPENSATION NO. WC-21-95319

LABORATORY CORP OF AMERICA CROSS-APPELLEE 

AND 

JOHN MCCRACKEN, 

ADMINISTRATIVE LAW JUDGE AND 

WORKERS’ COMPENSATION BOARD 

APPELLEES 

OPINION OF THE COURT BY JUSTICE NICKELL

AFFIRMING
2

Laboratory Corp of America (“Labcorp”) has appealed from the decision of 

the Court of Appeals which affirmed a decision of the Workers’ Compensation 

Board (“Board”) affirming an Administrative Law Judge’s (“ALJ”) Opinion and 

Order awarding Hunter Smith permanent partial disability (“PPD”) benefits for 

a work-related back injury with psychological overlay. Labcorp asserts the 

Court of Appeals and the Board erred by affirming the ALJ’s adjudication of 

Smith’s psychological injury which it contends was improperly based on a 

conditional impairment rating. Smith has cross-appealed, alleging the ALJ 

improperly adjudicated the permanent impairment rating relative to his back 

injury. Following a careful review, we affirm.

FACTS AND PROCEDURAL HISTORY

Smith was employed by Labcorp as a phlebotomist. The events 

precipitating this workers’ compensation claim occurred on January 27, 2021, 

when a shelving unit fell onto Smith’s head, knocking him to the ground. He 

sustained acute injuries to his lower back which required surgical intervention. 

On April 4, 2021, Dr. Gregory Lanford performed a Left L4-5 hemilaminectomy, 

medial facetectomy, diskectomy, and foraminotomy. The surgery was not 

successful at alleviating Smith’s symptoms, with Dr. Lanford noting during 

follow-up visits that Smith had burning pains in his legs exacerbated by 

standing and walking, mechanical back pain, urinary urgency, urinary leakage, 

back stiffness, and inability to sleep. Dr. Lanford ultimately assessed a 24% 

permanent impairment rating relative to the back injury, apportioning 5% to 

pre-existing injuries and 19% to the work-related injury. He recommended 
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Smith not engage in prolonged standing or walking, refrain from repetitive 

climbing of stairs, and never work from ladders, scaffolds, or unprotected 

heights. Dr. Lanford indicated Smith would need to sit and rest periodically for 

relief of his pain.

Dr. Jules Barefoot examined Smith on November 10, 2021. At that time, 

Smith had complaints of lower back pain radiating to his thigh, numbness in 

his leg, and burning pain in his calf, all worsened with walking. Dr. Barefoot 

also noted urinary urgency and dribbling and difficulty sleeping due to back 

and leg pain. Smith freely admitted to experiencing prior back issues but Dr. 

Barefoot indicated no surgery or restrictions had been recommended prior to 

the work injury. Although some of Smith’s prior medical records noted active 

back pain, others did not, including a physical therapy report issued two days 

prior to the work injury. Dr. Barefoot’s recommended restrictions mirrored 

those given by Dr. Lanford. Additionally, utilizing the ROM1 method Dr. 

Barefoot agreed with Dr. Lanford that Smith’s permanent impairment rating 

was 24%, with 19% attributable to the work injury and 5% to pre-existing 

active impairment.

Dr. Michael Best performed a medical examination and records review on 

behalf of Labcorp. Dr. Best disagreed with the other physicians, noting Smith 

was uncooperative, confrontational, and displayed significant magnification of 

his symptoms. Dr. Best opined all of Smith’s back issues were pre-existing

1 Range-of-motion.
4

before the workplace incident, relying on information contained in the physical 

therapy note issued two days prior to the shelf collapse. He further believed 

Dr. Barefoot had ignored the appropriate method of assessing an impairment, 

instead finding Smith has a Lumbar DRE2 Category III 10% impairment, all of 

which he attributed to a pre-existing active condition.

Dr. Barefoot subsequently reviewed Dr. Best’s report and opined Dr. Best

had misread Smith’s physical therapy note to say Smith had active back pain 

two days before the workplace incident when, in fact, Smith had reported no 

pain or tenderness and exhibited normal movements. Dr. Barefoot stood firm 

in his previous impairment assessment and was unswayed by Dr. Best’s 

opinions. Dr. Barefoot noted his belief the ROM method was indicated as the 

appropriate assessment tool, but did not challenge Dr. Best’s use of the DRE 

method as medically inappropriate or improper.

Dr. Robert Sivley evaluated Smith’s psychological complaints and issued 

a report on January 5, 2022. Prior to the work injury, Smith had participated 

in one or two counseling sessions during his mid-20’s for relationship issues, 

but otherwise had no psychiatric history. Following a battery of psychological 

tests, Dr. Sivley diagnosed Smith with adjustment disorder with mixed anxiety 

and depressed mood, moderate to severe. Although Dr. Sivley diagnosed a 

Class II impairment range, he refrained from providing a percentage of 

impairment because he was unsure if Smith had attained maximum medical 

2 Diagnosis-related estimate.
5

improvement (“MMI”) as he had not received any treatment for his mental 

health issues. Several weeks later, Dr. Sivley provided an addendum to his 

report assessing a 20% impairment rating for Smith’s psychological condition 

upon concluding Smith had reached MMI as he was unable to obtain payment 

from Labcorp for mental health treatment.

Dr. Amy Trivette performed a medical evaluation of Smith on behalf of 

Labcorp on June 6, 2022. Because she is not a psychologist and cannot 

administer psychological tests, Dr. Trivette engaged Dr. Martine Turns to 

conduct the examination and testing. In reviewing the results, Dr. Trivette

concluded Smith was genuine in some responses but in others showed a 

degree of symptom exaggeration and over-reporting of symptoms which were 

not fully accounted for by his medical records. She believed the 

inconsistencies made reliance on Smith’s accounts of his condition suspect. 

Dr. Trivette found Smith did not demonstrate significant psychiatric 

impairment resulting from the work injury nor did he suffer a mental disorder 

which would prevent performance of his work duties. Thus, upon concluding 

Smith did not have a psychological impairment relative to his work injury, Dr. 

Trivette assessed him a 0% impairment rating.

After considering all of the evidence, the ALJ issued an opinion, award, 

and order on July 15, 2022. The ALJ determined Smith had carried his 

burden of establishing a compensable work-related injury. The ALJ awarded 

Smith medical expenses and permanent partial disability benefits. For the 

back injury, the ALJ rejected Dr. Best’s determination that all of Smith’s 
6

symptoms resulted from a pre-existing condition, but nevertheless accepted his

10% impairment assessment as the most appropriate. Agreeing with a portion 

of Dr. Barefoot’s assessment, the ALJ determined 5% of Smith’s impairment 

was attributable to a pre-existing active condition, thus leaving a 5% 

impairment rating for the work-related back injury. The ALJ also concluded 

Smith suffered work-related psychological impairment, and awarded benefits 

based upon the 20% impairment rating assessed by Dr. Sivley.

Labcorp appealed to the Board, asserting the ALJ improperly relied on 

Dr. Sivley’s impairment rating because Smith had not attained MMI at the time 

the rating was assigned. It contended only Dr. Trivette’s findings constituted 

reliable and substantial evidence of Smith’s psychological impairment. Smith 

cross-appealed, arguing the ALJ improperly admitted Dr. Best’s report into 

evidence and further misapplied the AMA Guides3 when determining whether 

to use the impairment rating of Dr. Barefoot or Dr. Best as the two used 

differing methods of ascertaining the extent of Smith’s back injury. The Board 

affirmed. Both parties appealed to the Court of Appeals, reasserting the same 

arguments presented to the Board. The Court of Appeals affirmed. This appeal 

and cross-appeal followed.

STANDARD OF REVIEW

Review from an ALJ’s decision on a workers’ compensation claim 

proceeds on three levels. Lexington Fayette Urb. Cnty Gov’t v. Gosper, 671 

3 American Medical Association Guides to the Evaluation of Permanent 

Impairment, Fifth Edition.
7

S.W.3d 184, 199 (Ky. 2023). “The Board performs the first level of review[,]” as 

set forth in KRS 342.285, and functions essentially to correct error, “though 

without the power of constitutional review.” Id. The Court of Appeals performs 

the second level of review from the decisions of the Board pursuant to KRS 

342.290 with the purpose of correcting 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. (quoting W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 

687-88 (Ky. 1992)). Further review by this Court is available “as a matter of 

right under Section 115 of the Kentucky Constitution[,]” and is meant 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. at 200 (quoting W. Baptist, 827 S.W.2d at 688).

Thus, we “will not simply ‘third guess’ the decisions of the Board and the Court 

of Appeals upon the same evidence.” Id.

In determining disputed issues of fact, “the ALJ as ‘the finder of fact . . . 

has the authority to determine the quality, character and substance of the 

evidence presented.’” Id. at 198 (quoting Paramount Foods, Inc. v. Burkhardt, 

695 S.W.2d 418, 419 (Ky. 1985)). Additionally, “an ALJ has sole discretion to 

decide whom and what to believe, and 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.” Id. (quoting 

Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009)). On 
8

appellate review, “the standard of review is whether the [factual] finding was 

‘clearly erroneous,’ meaning ‘unreasonable under the evidence presented.’” Id. 

at 199 (quoting Letcher Cnty. Bd. of Educ. v. Hall, 576 S.W.3d 123, 126 (Ky. 

2019)). However, we review “questions of law and the application of law to 

facts under the de novo standard.” Id.

ANALYSIS

Labcorp contends the ALJ’s reliance on Dr. Sivley’s impairment rating for 

Smith’s psychological injury was misplaced and the Board and Court of 

Appeals erred in affirming such reliance based on Labcorp’s belief the rating 

was conditional and therefore could not constitute substantial evidence 

justifying an award of benefits. Dr. Sivley opined Smith might not be at MMI 

because he had not yet undergone any mental health treatment. In the 

absence of such treatment, however, Dr. Sivley indicated Smith was at MMI 

and assessed an impairment rating. Labcorp argues Dr. Sivley’s reports 

contain internal inconsistencies and, because he did not believe Smith was at 

MMI, he was prohibited by the Guides from assigning any impairment rating 

whatsoever.4 Labcorp asserts the ALJ should have concluded Smith did not 

4 Contrary to Rules of Appellate Procedure (RAP) 41, Labcorp cites numerous 

unpublished opinions of the Court of Appeals in support of its position when there are 

published opinions of this Court addressing the point of law being argued (see RAP 

41(A)(3)) and without clearly stating the opinions are not binding authority (see RAP 

41(A)(4)). In one instance, Labcorp even cites to an opinion of the Court of Appeals 

which was subsequently appealed to this Court, and we issued an opinion, thereby 

rendering the decision of the Court of Appeals non-final, non-binding, completely 

without precedential value, and otherwise wholly improper for citation. Because of the 

clear violation of RAP 41, we shall ignore any citations to those opinions, and any 

related arguments, in our review. Counsel is cautioned to refrain from such 

infractions in the future.
9

carry his burden of showing a psychological impairment or, alternatively, 

should have relied on the 0% impairment rating assessed by its expert, Dr. 

Trivette.

On cross-appeal, Smith argues the ALJ misread and misapplied the 

Guides relative to when a physician should use the ROM method instead of the 

DRE method for assessing an impairment rating. He further contends the ALJ

erred in utilizing portions of the opinion of Dr. Best to determine an 

impairment rating for his back injury. Smith claims that because Dr. Best did 

not believe Smith suffered a work-related injury, he could not offer any opinion 

regarding an impairment rating, and the ALJ was thus precluded from relying 

on his report.

The arguments presented by both parties to this Court are identical to 

those raised and rejected below. No new or novel questions of law are 

presented, no precedents warrant reconsideration,5 and no constitutional 

issues are in play. Rather, at bottom, each party simply insists the ALJ chose 

the wrong expert opinion in reaching its decision on an impairment rating.

Both cite the rule that a physician’s opinion pertaining to an impairment rating 

must be based on the AMA Guides, Jones v. Brasch-Barry Gen. Contractors, 

189 S.W.3d 149, 153 (Ky. App. 2006), and contend the opinions of their 

5 We note Labcorp asks us to overrule Martin County Coal Co. v. Goble, 449 

S.W.3d 362 (Ky. 2014), as an outlier in workers’ compensation jurisprudence. 

However, the issue in Goble with which it disagrees is consistent with other published 

authority, including Tokico (USA), Inc. v. Kelly, 281 S.W.3d 771 (Ky. 2009), and Miller 

v. Go Hire Employment Development, Inc., 473 S.W.3d 621 (Ky. App. 2015). We discern 

no reason to reconsider Goble at this juncture.
10

opponent’s expert physician were reached in violation of the rule. However, for 

an impairment rating to be properly based on, or “grounded in the Guides is 

not to require a strict adherence to the Guides, but rather a general conformity

with them.” Plumley v. Kroger, Inc., 557 S.W.3d 905, 912 (Ky. 2018). 

Moreover, we have long recognized “[t]he proper interpretation of the Guides

and the proper assessment of an impairment rating are medical questions.” Id.

at 913 (quoting Kentucky River Enters., Inc. v. Elkins, 107 S.W.3d 206 (Ky. 

2003)). Ultimately, “this Court’s only prerogative is to evaluate the ALJ’s 

decision to ensure that it is not contrary to the evidence.” Id.

Both Labcorp and Smith set forth their views of the evidence as 

supportive of their respective positions. However, contrary to their assertions, 

both Dr. Sivley and Dr. Best issued reports grounded in and conforming to the 

Guides in reaching their conclusions.

Dr. Sivley’s contingent finding of MMI was premised on Smith not 

receiving mental health treatment—for which Labcorp refused, and Smith was 

unable, to pay. Such provisional MMI opinions have been held to be consistent 

with the Guides and can serve as substantial evidence justifying an award of 

benefits. See Tokico (USA), Inc., 281 S.W.3d at 775-776 (“The need for 

additional treatment does not preclude a finding that a worker is at MMI.”); Go 

Hire, 473 S.W.3d 633 (holding an ALJ can reasonably infer from contingent 

impairment ratings that claimant is at MMI where physician knows no 

treatment has been provided, none will be forthcoming, and condition will be 

static absent treatment).
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Dr. Best utilized the DRE method which is the principal methodology 

used to evaluate a claimant with a distinct injury. Guides, Sec. 15.2, p. 379. 

Although the ROM method may also be used under certain criteria, no medical 

evidence was presented indicating Dr. Best’s use of the DRE method was 

medically improper or in violation of the Guides. Importantly, Dr. Barefoot’s 

review of Dr. Best’s report did not directly question his methodology, but 

merely disagreed with his ultimate conclusions. Additionally, although Dr. 

Best did not believe it was work related, he clearly acknowledged Smith had a 

disabling low back injury for which an impairment rating was appropriate. As 

noted by the Board, “assigning of an impairment rating analyzes the condition 

of the individual, and whether the rating relates to conditions pre-injury or 

caused by the injury is a separate matter.”

While both parties seek a different outcome based upon their assessment 

of the evidence, it is axiomatic that

[a]lthough a party may note evidence which would have supported 

a conclusion contrary to the ALJ’s decision, such evidence is not 

an adequate basis for reversal on appeal. McCloud v. Beth–Elkhorn 

Corp., Ky., 514 S.W.2d 46 (1974). The crux of the inquiry on 

appeal is whether the finding which was made is so unreasonable 

under the evidence that it must be viewed as erroneous as a 

matter of law. Special Fund v. Francis, [708 S.W.2d 641, 643 (Ky. 

1986)].

Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). Here, the 

ALJ weighed the conflicting medical testimony, determined the quality, 

character, and substance of the evidence, and assessed what it believed to be 

an appropriate impairment rating. “An ALJ may draw reasonable inferences 
12

from the 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.” Go Hire, 473 S.W.3d at 629.

The ALJ’s decision, which was affirmed by the Board and the Court of 

Appeals, may not have been the only possible outcome, but it is not 

unplausible. The parties have offered nothing new to this Court which has not 

already been analyzed by the lower tribunals. Thus, “[t]he present appeal fails 

to reach beyond the threshold for routine affirmance.” W. Baptist, 827 S.W.2d 

at 688. Our review of the record does not convince us that the evidence 

compelled a different result. The ALJ’s decision was supported by substantial 

evidence, was not clearly erroneous, and therefore should not be disturbed. 

Additionally, “the fact remains that the Workers’ Compensation Board and the 

Court of Appeals have provided adequate appellate review, and the view they 

took of the evidence is neither patently unreasonable nor flagrantly 

implausible. The case before us does not merit further appellate oversight.” Id.

CONCLUSION

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

affirmed.

All sitting. All concur.
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COUNSEL FOR APPELLANT/CROSS-APPELLEE:

James B. Cooper

Boehl Stopher & Graves, LLP

COUNSEL FOR APPELLEE/CROSS-APPELLANT:

Jeffery A. Roberts

ADMINISTRATIVE LAW JUDGE: 

Hon. John McCracken 

WORKERS’ COMPENSATION BOARD: 

Michael Wayne Alvey 

Chairman