# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANTTO THE RULES OF CIVIL PROCEDURE PROMULGATED BYTHE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOTTO BE PUBLISHED AND SHALL NOT BE CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY_COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, · RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENTTO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: AUGUST 24, 2017 NOT TO BE PUBLISHED 

# juprettte @:nurf nf~enfutku

2016-SC-000131-WC
SLATER FORE CONSULTING, INC.



### V. ON APPEAL FROM COURT OFAPPEALS CASE NO. 2015-CA-000778-WC WORKERS' COMPENSATION BOARD NO. 12-WC-70061
LESLIE B. RIFE; HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT AFFIRMING APPELLANT

APPELLEES

After anAdministrative LawJudge (AW) determined thatAppellee, Leslie · B. Rife, a long-distance truckdriver, was entitled to permanent total disability and medical benefits following work-related injuries, the Workers' Compensation Board (the Board) and the Court ofAppeals both affirmed. I:Javing reviewed the record, we also affirm the findings and award ofthe AW. RELEVANT FACTS Duringa chemical delivery to a Montana mine in June 2012 while workingfor his employer, SlaterFore Consulting, Inc. (Slater), Rife tripped over
a large hose.attached to his tanker truck and struckhishead on a.metal beam,necessitating a trip to the local emergency room. Hewas treated for a significantlaceration on his.head, a laceration on his knee and also underwent diagnostic testing. He testified that he had a difficult trip home toTennessee and sought further treatment there. His cervical complaints eventually led to a cervical fusion and post-operative complications from that surgeryresulted in a stayin i,!ltensive care where he spent a week in a coma. While in the intensive
care unit, Rife fell when attempting to getup from a chairunassisted, injuring his lower back. When more conservative treatment ofthe lower back condition
was unsuccessful, he had a lumbar fusion. Rife has not returned to work and sought workers'compensation benefits for the cervical and lumbarinjuries as well as a neurocognitive disorder stemmingfrom an alleged traumatic brain injury at the time ofhis June 2012 fall. Before the AW, Rife presented the deposition testimony and report ofDr. Jules Barefootwho concluded thatRife had a 28% impairmentrating ofhis cervical spine, with 10% ofthatrating attributed to an earlier 2008 cervical fusion. Barefoot noted thatRife's symptoms resolved following that earlier surgery and he was workingwith no complaints orrestrictions at the time of the June 2012 accident. Barefoot assessed a 32% impairmentrating°for the lumbar spine, for a combined 44% impairmentratingwhich he attributed solely to the June 2012 accident. In Barefoot's opinion, Rife was unable to return to his prior truck driving position and was totally and permanently occupationally disabled. The AW also had before him medical reports from

2various treating physicians including Rife's primary care physician and his surgeon. Slaterpresented the reports ofvarious medical experts, none ofwhom found Rife's injuries permanently disabling. Dr. Thomas O'Brien concluded· Rife reached maximum medical improvement (MMI) in June 2012 and had no permanentimpairment, with any surgeries or conditions unrelated to the work injury and solely attributable to pre-existing, non-work-related injuries or conditions. Dr. HenryTutt similarly found no permanentimpairmentfrom the June 2012 accident, concluding Rife reached MMI in earlyJuly 2012. He found Rife had an active 33% impairment as to his cervical and lumbar conditionsbut attributed all ofit to pre-existing conditions unrelated to the Montana accident. Two expertwitnesses provided reports regarding Rife's traumatic braininjury or cognitive deficits, an issue thatwas eventually remanded to the AW by the Board and that is not currently before us. After consideringall ofthe evidence, the AW found Rife to be a credible witness regarding his current condition and limitations and further found Barefoot's testimony persuasive and compelling. TheAW rejected Slater's argument thatRife suffered from a pre-existing active disability, determining that that condition had fully resolved prior to June 2012. Ultimately, the AW held that Rife had a 44% whole person impairment attributable to the workrelated accident and was permanently and totally disabled effective from and after September 9, 2012, the date Rife lastworked. The Board affirmed this ruling

# m its entiretybutremanded the issue ofcognitive injury to theAW for a 3determination as to the appropriate impairmentrating attributable to that injury. On appeal, the Court ofAppeals rejected Slater's arguments that (1) Rife's back condition was solelythe result ofa pre-existing condition, not the June 2012 fall; (2) Rife's lumbarinjury resulting from his fall in the hospital
was not causallyrelated to the work accident; and (3) theAW erred in not apportioning any ofRife's disability to an active, pre-existing condition. Slater appeals from.the Court ofAppeals' opinion affirmingthe decision ofthe Workers' Compensation Board. ANALYSIS The AW is the fact-finder in workers'compensation cases and is entrusted with sole authority to determine the quality, character and substance ofthe evidence. 

### Square D Co. 

### v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). There must be substantial evidence ofprobative value supporting the AW's decision. 

### Whittakerv. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999). On appellate review, we defer to theAW's decision unless we find the AW has overlooked or misconstrued controllinglaw or has flagrantly erred in assessing the evidence. 

### U.S. BankHomeMortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 2014). Although we review matters oflaw 

### de nova, findings offact will be set aside only ifthe evidence compels a contrary finding. Id. Slatermaintains that theAW erred in finding that Rife's cervical condition was attributable to the June 2012 work injury. Noting evidence of record concerning Rife's prior cervical spine issues, including a cervical
4discectomy and fusion in 2008, Slatermaintains that Rife's neck complaints
are a result ofdegenerative changes, not acute trauma. Slaterfurther maintains that Rife has minimized his earlier complaints and the AW inappropriatelyruled that the cervical condition was a work-related injury based solely on the claimant's credibility. The evidence was undisputed that Rife was.working with no restrictions at the time ofthe June 2012 accident. In fact, the AW did find Rife to be a credible witness regarding his medical history and condition buttheAW further grounded his findings in the medical testimony ofBarefoot. As noted, Barefoot assigned a 28% impairment rating to the cervical spine buthe also apportioned 10% ofthat to the 2008 cervical fusion. Thus, Slatererrs in contending that the cervical spine finding ignores Rife's earlierneck issues because Barefoot specifically accounted for any pre-existing condition in making his assessment. There is certainly evidence to the contraryfrom experts presented by Slaterbut sorting through conflicting evidence is the province oftheAW. Here there is substantial evidence to support the cervical injuryfinding and the evidence, considered in its entirety, does not compel a contrary finding. 

### U.S. BankHome, 455 S.W.3d at 384. Thus, the Board and Court ofAppeals did not err in affirming the AW's decision on this issue. Next, Slaterchallenges the AW's conclusion that Rife's lumbar injury, suffered when he fell in the intensive care unit ofthe hospital while recovering from the December 2012 cervical surgery, is causallyrelated to his work injury. TheAW relied on 

### Pond Creek Collieries Co. 

### v. La Santos, 212 S.W.2d 530 (Ky.
51948) and 

### Elizabethtown Sportswearv. 

### Stice, 720 S.W.2d 732 (Ky. App. 1986), in finding that this lower backinjury was compensable. Both cases address injuries occurringin the course ofa patient's treatment for a work-related injury. In 

### Pond Creek, the claimant fell from a hoist car at

# acoal mine and suffered multiple injuries including fractured ribs and a punctured lung that led to his hospitalization. 212 S.W.2d at 531. On his third day in the hospital, he fell and x-rays revealed a hip fracture, an injury not previously identified. Id. It was impossible to determine when the hip fracture occurred butthis Court's predecessor concluded that regardless ofwhether itwas part ofthe original workplace injury or solely a result ofthe hospital fall it was still compensable. Id. at 532. "[E]ven ifhis hip was fractured when he fell from or beside his hospital bed, this occurred during his medical treatment at a time when he could not be held accountable for his acts, and as direct and proximate result ofthe original injury suffered in an 'accident arising out of and in the course ofhis employment."' Id. Almostforty years later, in 

### Elizabethtown Sportswear, the Court of Appeals addressed a case broughtby the estate ofa worker who suffered a work-related·back injury. 720 S.W.2d at 733. The workerwas hospitalized
over a yearfollowing the injury for recurring backpain and a lumbar myelogram was ordered. Id. Tragically, she suffered an allergic reaction to the dye used in the procedure and died within twenty-fourhours. Id. Relyingin part on 

### Pond Creek, the 

### Elizabethtown Sportswearpanel held that the widower
6was entitled to death benefits for this work-related death. Id. at 734. The courtreasoned that an employee orher estate canrecoverfor additional disability (or death) suffered as a result ofmedical treatment for the workrelated injury. Id. Slater summarizes whatit perceives as the distinction .between this case and the foregoing cases as follows: Here, there is no evidence thatAppellee's fall in the hospital was in any way caused byhis work injury or the treatment he was receiving. The simple fact that he fell while in the hospitaldoes not lead to the conclusion thatthe fall is a 'direct and natural result' ofhis treatment. There is a clear difference between an injury that occurs duringtreatment and an irtjury that is causedby the treatment. The hospital fall must therefore be considered a subsequentintervening cause and not 'a direct and natural result'ofthe work injury. Appellant's Briefat pp. 15-16 (emphasis in original). Here, as in Pond Creek, Rife was confined to the hospital following cervical surgery necessitated byhis work-related injury. While still in the intensive care unit following a week-long coma, he stood to get up from a chair and fell, injuringhis lowerbackin a manner that required further surg~ry in June 2013. We see no principled basis for distinguishing Rife's situation from that ofthe claimantin Pond Creek. TheAW properly found the lumbarinjury to be compensable and, consequently, the Board and Court ofAppeals appropriately affirmed. Slater's third and final argument concerns Rife's alleged pre-existing condition as to both his neck and lower back. Slaterinsists that theAW erred
7in not recognizing the evidence ofprior problems Rife experienced with his neck and lower back and then reducing any award accordingly. Both the Board and the Court ofAppeals noted that theAW correctly differentiated between impairment and disability, an important distinction in determining permanent total disability. Impairment and disability are not synonymous. We conclude, therefore, that an exclusion from a total disability award must be based upon pre-existing disability, while an exclusion from a partial disability award must be based upon pre-existingimpairment. For that reason, ifan individual is workingwithout restrictions at the time a work-related injury is sustained, a finding ofpre-existingimpairment does not compel a finding ofpre-existingdisability with regard to an award that is made under (Kentucky Revised Statutes] 342.730(l)(a). 

### RobertsBros. Coal Co. 

### v. Robinson, 113 S.W.3d 181, 183 (Ky. 2003). Here there was certainly evidence ofRife's prior neck and lower back issues buthe was never deemed disabled and he continued to work without restrictions up to the date ofhis accident in Montana. Rife maywell have had
a pre-existingimpairment ofhis neck and lower back butthat did not equate with a pre-existing disability. Under the 

### RobertsBros. Coal standard, there
was no basis for reducingthe permanenttotal disability award due to a preexisting disability and, accordingly, theAW did not err. Forthe foregoing reasons, we affirm the Court ofAppeals' opinion affirming the Workers' Compensation Board's decision in this matter. All sitting. All concur.

8COUNSEL FORAPPELLANT: BonnieJo. Hoskins· Carl MartinBrashear Hoskins Law Offices, PLLC
COUNSEL FORAPPELLEE, LESLIE B. RIFE Christopher P. Evensen Evensen Law Office, LLC

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