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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, · 

RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR 

CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED 

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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NOT TO BE PUBLISHED 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 OF APPEALS 

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 an Administrative Law Judge (AW) determined that Appellee, Leslie · 

B. Rife, a long-distance truck driver, was entitled to permanent total disability 

and medical benefits following work-related injuries, the Workers' 

Compensation Board (the Board) and the Court of Appeals both affirmed. 

I:Javing reviewed the record, we also affirm the findings and award of the AW. 

RELEVANT FACTS 

During a chemical delivery to a Montana mine in June 2012 while 

working for his employer, Slater Fore Consulting, Inc. (Slater), Rife tripped over 

a large hose.attached to his tanker truck and struck his head on a.metal beam, 
necessitating a trip to the local emergency room. He was treated for a 

significant laceration on his.head, a laceration on his knee and also underwent 

diagnostic testing. He testified that he had a difficult trip home to Tennessee 

and sought further treatment there. His cervical complaints eventually led to a 

cervical fusion and post-operative complications from that surgery resulted in a 

stay in i,!ltensive care where he spent a week in a coma. While in the intensive 

care unit, Rife fell when attempting to get up from a chair unassisted, injuring 

his lower back. When more conservative treatment of the 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 lumbar injuries as 

well as a neurocognitive disorder stemming from an alleged traumatic brain 

injury at the time of his June 2012 fall. 

Before the AW, Rife presented the deposition testimony and report of Dr. 

Jules Barefoot who concluded that Rife had a 28% impairment rating of his 

cervical spine, with 10% of that rating attributed to an earlier 2008 cervical 

fusion. Barefoot noted that Rife's symptoms resolved following that earlier 

surgery and he was working with no complaints or restrictions at the time of 

the June 2012 accident. Barefoot assessed a 32% impairment rating°for the 

lumbar spine, for a combined 44% impairment rating which 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 

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various treating physicians including Rife's primary care physician and his 

surgeon. 

Slater presented the reports of various medical experts, none of whom 

found Rife's injuries permanently disabling. Dr. Thomas O'Brien concluded· 

Rife reached maximum medical improvement (MMI) in June 2012 and had no 

permanent impairment, with any surgeries or conditions unrelated to the work 

injury and solely attributable to pre-existing, non-work-related injuries or 

conditions. Dr. Henry Tutt similarly found no permanent impairment from the 

June 2012 accident, concluding Rife reached MMI in early July 2012. He 

found Rife had an active 33% impairment as to his cervical and lumbar 

conditions but attributed all of it to pre-existing conditions unrelated to the 

Montana accident. Two expert witnesses provided reports regarding Rife's 

traumatic brain injury or cognitive deficits, an issue that was eventually 

remanded to the AW by the Board and that is not currently before us. 

After considering all of the 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. The AW rejected Slater's 

argument that Rife 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 last worked. The Board affirmed this 

ruling m its entirety but remanded the issue of cognitive injury to the AW for a 

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determination as to the appropriate impairment rating attributable to that 

injury. 

On appeal, the Court of Appeals rejected Slater's arguments that (1) 

Rife's back condition was solely the result of a pre-existing condition, not the 

June 2012 fall; (2) Rife's lumbar injury resulting from his fall in the hospital 

was not causally related to the work accident; and (3) the AW erred in not 

apportioning any of Rife's disability to an active, pre-existing condition. Slater 

appeals from. the Court of Appeals' opinion affirming the decision of the 

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 of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 

1993). There must be substantial evidence of probative value supporting the 

AW's decision. Whittakerv. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999). On 

appellate review, we defer to the AW's decision unless we find the AW has 

overlooked or misconstrued controlling law or has flagrantly erred in assessing 

the evidence. U.S. Bank Home Mortgage v. Schrecker, 455 S.W.3d 382, 384 (Ky. 

2014). Although we review matters of law de nova, findings of fact will be set 

aside only if the evidence compels a contrary finding. Id. 

Slater maintains that the AW 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 

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discectomy and fusion in 2008, Slater maintains that Rife's neck complaints 

are a result of degenerative changes, not acute trauma. Slater further 

maintains that Rife has minimized his earlier complaints and the AW 

inappropriately ruled 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 of the June 2012 accident. 

In fact, the AW did find Rife to be a credible witness regarding his 

medical history and condition but the AW further grounded his findings in the 

medical testimony of Barefoot. As noted, Barefoot assigned a 28% impairment 

rating to the cervical spine but he also apportioned 10% of that to the 2008 

cervical fusion. Thus, Slater errs in contending that the cervical spine finding 

ignores Rife's earlier neck issues because Barefoot specifically accounted for 

any pre-existing condition in making his assessment. There is certainly 

evidence to the contrary from experts presented by Slater but sorting through 

conflicting evidence is the province of the AW. Here there is substantial 

evidence to support the cervical injury finding and the evidence, considered in 

its entirety, does not compel a contrary finding. U.S. Bank Home, 455 S.W.3d 

at 384. Thus, the Board and Court of Appeals did not err in affirming the 

AW's decision on this issue. 

Next, Slater challenges the AW's conclusion that Rife's lumbar injury, 

suffered when he fell in the intensive care unit of the hospital while recovering 

from the December 2012 cervical surgery, is causally related to his work injury. 

The AW relied on Pond Creek Collieries Co. v. La Santos, 212 S.W.2d 530 (Ky. 

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1948) and Elizabethtown Sportswear v. Stice, 720 S.W.2d 732 (Ky. App. 1986), 

in finding that this lower back injury was compensable. Both cases address 

injuries occurring in the course of a patient's treatment for a work-related 

injury. 

In Pond Creek, the claimant fell from a hoist car at a coal 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 but this 

Court's predecessor concluded that regardless of whether it was part of the 

original workplace injury or solely a result of the hospital fall it was still 

compensable. Id. at 532. "[E]ven if his 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 of the original injury suffered in an 'accident arising out of 

and in the course of his employment."' Id. 

Almost forty years later, in Elizabethtown Sportswear, the Court of 

Appeals addressed a case brought by the estate of a worker who suffered a 

work-related·back injury. 720 S.W.2d at 733. The worker was hospitalized 

over a year following the injury for recurring back pain and a lumbar 

myelogram was ordered. Id. Tragically, she suffered an allergic reaction to the 

dye used in the procedure and died within twenty-four hours. Id. Relying in 

part on Pond Creek, the Elizabethtown Sportswear panel held that the widower 

6 
was entitled to death benefits for this work-related death. Id. at 734. The 

court reasoned that an employee or her estate can recover for additional 

disability (or death) suffered as a result of medical treatment for the workrelated injury. Id. 

Slater summarizes what it perceives as the distinction .between this case 

and the foregoing cases as follows: 

Here, there is no evidence that Appellee's fall in the 

hospital was in any way caused by his work injury or 

the treatment he was receiving. The simple fact that 

he fell while in the hospital does not lead to the 

conclusion that the fall is a 'direct and natural result' 

of his treatment. There is a clear difference between 

an injury that occurs during treatment and an irtjury 

that is caused by the treatment. The hospital fall 

must therefore be considered a subsequent intervening 

cause and not 'a direct and natural result' of the work 

injury. 

Appellant's Brief at pp. 15-16 (emphasis in original). 

Here, as in Pond Creek, Rife was confined to the hospital following 

cervical surgery necessitated by his 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, injuring his lower back in a manner that required further surg~ry in 

June 2013. We see no principled basis for distinguishing Rife's situation from 

that of the claimant in Pond Creek. The AW properly found the lumbar injury 

to be compensable and, consequently, the Board and Court of Appeals 

appropriately affirmed. 

Slater's third and final argument concerns Rife's alleged pre-existing 

condition as to both his neck and lower back. Slater insists that the AW erred 

7 
in not recognizing the evidence of prior problems Rife experienced with his neck 

and lower back and then reducing any award accordingly. Both the Board and 

the Court of Appeals noted that the AW 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-existing impairment. 

For that reason, if an individual is working without 

restrictions at the time a work-related injury is 

sustained, a finding of pre-existing impairment does 

not compel a finding of pre-existing disability with 

regard to an award that is made under (Kentucky 

Revised Statutes] 342.730(l)(a). 

Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 183 (Ky. 2003). 

Here there was certainly evidence of Rife's prior neck and lower back 

issues but he was never deemed disabled and he continued to work without 

restrictions up to the date of his accident in Montana. Rife may well have had 

a pre-existing impairment of his neck and lower back but that did not equate 

with a pre-existing disability. Under the Roberts Bros. Coal standard, there 

was no basis for reducing the permanent total disability award due to a preexisting disability and, accordingly, the AW did not err. 

For the foregoing reasons, we affirm the Court of Appeals' opinion 

affirming the Workers' Compensation Board's decision in this matter. 

All sitting. All concur. 

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COUNSEL FOR APPELLANT: 

Bonnie Jo. Hoskins· 

Carl Martin Brashear 

Hoskins Law Offices, PLLC 

COUNSEL FOR APPELLEE, LESLIE B. RIFE 

Christopher P. Evensen 

Evensen Law Office, LLC 

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