RENDERED: FEBRUARY 10, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-1310-WC

LFUCG POLICE DEPARTMENT APPELLANT 

v. 

PETITION FOR REVIEW OF A DECISION

OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-13-89089

DEBORAH HURT; BLUEGRASS 

ORTHOPEDICS; DR. HARRY 

LOCKSTADT; HONORABLE JOHN 

B. COLEMAN, ADMINISTRATIVE 

LAW JUDGE; AND WORKERS 

COMPENSATION BOARD APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.

COMBS, JUDGE: This is an appeal from a Workers’ Compensation case

involving a post-award medical fee dispute filed by the Appellant, LFUCG Police 

Department (LFUCG), contesting a proposed surgery by Dr. Lockstadt. The 
-2-

Administrative Law Judge (ALJ) found the surgery compensable, and the 

Workers’ Compensation Board affirmed. Finding no error after our review, we 

affirm the Board.

The underlying claim arose out of a February 17, 2013, work-related 

motor vehicle accident. Hurt and LFUCG settled the claim in 2015, and pursuant 

to KRS1 342.020, Hurt’s right to medical benefits was left open.

On September 20, 2021, Dr. Lockstadt requested approval for a C3-4, 

C4-5 posterior cervical decompression and fusion surgery. Dr. Farrage performed 

utilization review and found no apparent medical necessity for the proposed 

surgery.

LFUCG filed a motion to reopen resulting in a medical fee dispute. 

LFUCG challenged the proposed surgery on grounds of reasonableness, necessity,

and work-relatedness. Dr. Kriss evaluated Hurt at LFUCG’s request and found no 

indication for decompression surgery, but he did recommend non-operative 

treatment. 

Hurt testified by deposition and at the final hearing. She testified to 

ongoing pain in her neck since the accident. Hurt submitted records from Dr. 

Lockstadt as evidence and took his deposition. Dr. Lockstadt diagnosed 

spondylosis or degenerative arthritis at C4-5, C5-6, and C6-7. Dr. Lockstadt 

1 Kentucky Revised Statutes. 
-3-

testified that he has found the proposed surgical procedure to be quite successful 

relating to arthritis in the back of the neck. He explained that it is performed by 

means of a tiny cut with x-rays and through tubes, and small spacers are then 

placed in the painful arthritic joints in the neck -- resulting often in dramatic 

improvement in neck pain. 

The crux of this appeal involves a portion of Dr. Lockstadt’s 

testimony. Dr. Lockstadt was asked whether he could state within the realm of 

reasonable medical probability whether the subject procedure was related to the 

subject accident or to pre-existing problems. Dr. Lockstadt responded, “I don’t 

know the answer to that. There is no way to determine the answer. What we’ve 

had previously, we had this special fund where 50 percent was attributed to the car 

accident, 50 percent to other causes.”

On June 28, 2022, the ALJ rendered a detailed opinion and order as 

follows in relevant part:

[A] review of Dr. Lockstadt’s records reveals the note of 

August 24, 2020, wherein it was indicated the 

symptomatic cervical spondylosis was felt to relate back 

to the 2013 injury event. In his testimony, Dr. Lockstadt 

noted the relatedness question was now difficult to 

answer, but that previously under the “Special Fund” it 

would be apportioned 50/50. Of course, this is a 

reference to the prior version of KRS 342.120, which 

placed one-half of the liability for income benefits on the 

Special Fund when an injury was found to be the result of 

the arousal of pre-existing degenerative conditions into 

disabling reality. To the undersigned, this statement by 
-4-

Dr. Lockstadt is tantamount to his offering the opinion 

the need for the surgery is the result of the arousal of preexisting degenerative changes into disability reality by 

the work-related event. This, along with Hurt’s own 

testimony regarding the continuation of her symptoms 

following her work-related automobile accident and the 

statements in the medical record from August 24, 2020, 

persuades me the symptoms and the request for treatment 

are related to the effects of the work injury.

As the posterior cervical fusion is conditionally 

recommended, the request must be accompanied by 

sound medical reasoning. I am persuaded Dr. Lockstadt 

has offered sound medical reasoning for his surgical 

recommendation. He clearly stated in his surgery request 

and his deposition testimony that conservative treatment 

options have been maximized[.] . . . He discussed the 

recommendation for the placement of spacers, which is 

noted to be supported in the ODG.[2] After considering 

the entirety of the evidence, not only as summarized 

above, but as contained in the entire record, I am 

persuaded the recommended surgical procedure is 

causally related to the work injury in 2013, and is 

reasonable and necessary. Therefore, it is compensable 

under KRS 342.020.

LFUCG filed a petition for reconsideration and argued that the ALJ 

had “mistakenly relied” upon Dr. Lockstadt. By order rendered July 29, 2022, the 

ALJ denied LFUCG’s petition as a re-argument of the evidence.

2 Occupational Disability Guidelines. The ALJ discussed Kentucky’s adoption of the treatment 

guidelines contained in 803 Kentucky Administrative Regulations (KAR) 25:260, noting that 

medical treatment which is “not recommended” under the ODG may be found compensable if 

the medical provider articulates sound medical reasoning for the treatment. 
-5-

LFUCG appealed to the Board and again argued that the ALJ’s 

interpretation of Dr. Lockstadt’s testimony was “nothing more than an 

unsubstantiated guess” as to what the doctor meant and that the other evidence 

cited by the ALJ did not support the reasonableness, necessity, or work-relatedness 

of the proposed surgery.

By opinion rendered October 14, 2022, a unanimous Board affirmed 

as follows:

We note LFU[CG] argued it bears the burden of proof 

regarding reasonableness and necessity of treatment, but 

that Hurt bears the burden of proof regarding causation 

and the work-relatedness of the treatment. LFU[CG]

cites Addington Resources, Inc. v. Perkins, 947 S.W.2d 

421 (Ky. App. 1997) for this proposition. The Board 

notes, however, the Kentucky Supreme Court has since 

acknowledged the burden of proof regarding workrelatedness in a post-award medical fee dispute is on the 

employer in two unpublished cases. C&T Hazard v. 

Stollings, 2012-SC-000834-WC, 2013 WL 5777066 (Ky. 

Oct. 24, 2013); Conifer Health v. Singleton, No. 2020-

SC-0609-WC, 2021 WL 4487772 (Ky. Sept. 30, 2021).

KRS 342.735(3) also states, in relevant part: “However, 

the employee has the burden of proof to show the 

medical expenses are related to the injury, reasonable and 

necessary prior to an application of benefits being filed 

and before an award or order of benefits. Thereafter, the 

burden is upon the employer.” 

Since it bore the burden of proof and was 

unsuccessful before the ALJ, LFUCG must demonstrate 

the evidence compelled a different result. Snawder v. 

Stice, 576 S.W.2d 276 (Ky. App. 1979). For evidence to 

be compelling, it must be so overwhelming that no 

reasonable person could reach the same conclusion as the 
-6-

ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. 

App. 1985). 

. . . . 

LFUCG . . . contends the proposed surgery is not causally 

related to the work injury. It places particular emphasis on 

the deposition testimony of Dr. Lockstadt. . . . The ALJ 

inferred Dr. Lockstadt was referring to a prior version of 

KRS 342.120 when apportionment for income benefits 

would accrue one-half to the special fund when a dormant 

pre-existing condition was aroused into disabling reality by 

a work injury. The ALJ has “the sole discretion to 

determine the quality, character, weight and credibility and 

substance of the evidence, and to draw reasonable 

inferences from the evidence.” Bowerman v. Black 

Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009). . . .

Dr. Lockstadt’s records included his note from 

August 24, 2020 indicating [Hurt’s] symptoms since 2013, 

when her work-related injury occurred, always related to 

her neck. Hurt also testified her symptoms were ongoing 

since the 2013 work-related MVA. Dr. Lockstadt also 

specifically testified he was not recommending this 

procedure when he treated Hurt previously in 2008. The 

ALJ found Hurt successfully proved the surgery was workrelated and that finding was supported by substantial 

evidence; hence, the Board will not disturb the ALJ’s 

findings.

On appeal, LFUCG contends that Dr. Lockstadt’s apportionment 

comment shows his “complete lack of understanding of th[e] prior law as 

apportionment of income benefits had nothing to do with compensability of 
-7-

medicals under KRS 342.020.”3 However, this argument pertains to the weight of 

the evidence -- a matter which lies within the ALJ’s sole discretion. Bowerman,

supra.

Once again, LFUCG argues that the ALJ’s conclusion about what Dr. 

Lockstadt meant is nothing more than an unsubstantiated guess. It also contends

that the other evidence upon which the ALJ relied -- Dr. Lockstadt’s August 24, 

2020, note and Hurt’s testimony -- cannot support the reasonableness, necessity, or 

work-relatedness of the proposed surgery. However, the Board concluded that 

substantial evidence supports the ALJ’s determination. In essence, LFUCG is 

asking us to second-guess the Board. That is not our function. 

The standard of our review is well-settled: 

The function of further review of the [Board] in the Court 

of Appeals is to correct the Board only where [this] Court 

perceives the Board has overlooked or misconstrued 

controlling statutes or precedent, or committed an error in 

3 Derr Construction Company v. Bennett, 873 S.W.2d 824, 827 (Ky. 1994), more fully explains 

the prior law:

KRS 342.120(4) [now KRS 342.120(6)] specifically 

exempts the employer from paying income benefits for prior, 

active disability or for disability resulting from the arousal of a 

previously dormant condition. However, KRS 342.020 contains 

no such exemption regarding medical benefits. Liability for 

medical expenses requires only that an injury was caused by work 

and that medical treatment was necessitated by the injury. 

Regardless of whether an injured worker’s disability actually was 

caused by the arousal of a previously dormant condition rather than 

by the work-related injury, itself, the employer has been held 

liable for the payment of medical benefits relative to the injury. 

(Emphases added.)
-8-

assessing the evidence so flagrant as to cause gross 

injustice. 

Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). 

We perceive no such error in the case before us. On the contrary, we 

agree with the Board’s sound analysis. 

Accordingly, we affirm.

ALL CONCUR.

BRIEF FOR APPELLANT:

Marcel Smith

Lexington, Kentucky

BRIEF FOR APPELLEE:

James Martin

Lexington, Kentucky