RENDERED: AUGUST 26, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2022-CA-0558-WC

RICHARD COLE APPELLANT

PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-13-67013

KY FUELS CORP.; HONORABLE 

JONATHAN WEATHERBY, ADMINISTRATIVE 

LAW JUDGE; AND KENTUCKY WORKERS’

COMPENSATION BOARD APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, MAZE, AND K. THOMPSON, JUDGES.

MAZE, JUDGE: Appellant Richard Cole (Cole) petitions for a review of a 

Workers’ Compensation Board (Board) opinion vacating and remanding the 
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administrative law judge’s (ALJ) determination that Cole was permanently totally 

disabled as the result of a work-related injury.

I. FACTS AND PROCEDURAL BACKGROUND

In 2013, Cole suffered a work-related injury when the truck he was 

driving on behalf of his employer, Appellee KY Fuels Corp. (KY Fuels), struck a 

dip in the road, resulting in a sudden deflation of the air-controlled seat. Cole filed 

a workers’ compensation claim, alleging injuries to his lower back, neck, and hip. 

In 2015, ALJ Thomas Polites found, based on Cole’s testimony and 

the medical records of providers, including Dr. Anbu Nadar, that Cole’s “current 

lumbar condition is causally related to [his] injury as the result of the arousal of 

pre-existing dormant non-disabling degenerative conditions into a disabling state 

by the injury . . . .” However, ALJ Polites did not find any “permanent impairment 

as a result of a hip or neck injury . . .” and therefore he dismissed those claims. He 

awarded Cole permanent partial disability benefits based upon a 10% impairment 

rating, enhanced by the 3X multiplier (KRS1 342.730(1)).

In 2017, Cole filed for, and was granted, leave to reopen the claim on 

the grounds that his condition had progressed to the point that he was totally 

disabled. At that time, he submitted medical reports from Dr. Nadar from 2013 

and 2017, supplemented by a letter from Dr. Nadar dated September of 2017.

1 Kentucky Revised Statutes.
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In 2018, Cole testified by deposition and an independent medical 

examination was performed by Dr. Thomas Loeb. While Dr. Loeb indicated that 

Cole’s condition had worsened, he concluded that this worsening was the result of 

nonwork-related conditions. Based upon Dr. Nadar’s finding that there had been a 

worsening of Cole’s symptoms such that his level of functional impairment had 

increased, ALJ Jonathan Weatherby awarded him permanent total disability 

benefits (PTD). KY Fuels appealed to the Board. Although the Board affirmed 

the ALJ’s finding that Cole’s condition had worsened, it vacated his award of PTD, 

on the grounds that the ALJ had failed to undertake the analysis to substantiate 

such an award, as required by Ira A. Watson Department Store v. Hamilton, 34 

S.W.3d 48 (Ky. 2000).

Upon remand, although the ALJ presented a somewhat more cogent 

explanation of the connection between Cole’s work-related injury and his 

worsening condition, he reached the same conclusion and made the same award. 

Therefore, KY Fuels once again appealed to the Board, which found that the ALJ’s 

augmented findings were “minimally sufficient . . . .” The Board affirmed the 

ALJ’s award. 

KY Fuels then petitioned the Court of Appeals2to review the decision 

of the Board. The Court found that on remand the ALJ failed to distinguish 

2 KY Fuels Corp. v. Cole, No. 2019-CA-1519-WC, 2020 WL 6112924 (Ky. App. Oct. 16, 2020).
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between Cole’s work-related injury and other non-compensable conditions and had 

cited no medical opinion on the issue of causation which would support his claim. 

In so doing, this Court vacated the PTD award and remanded the matter to the ALJ 

for specific findings “determining whether Cole’s work-related condition caused 

his total disability based upon expert medical evidence.” Id. at *10. 

Thereafter, Cole appealed to the Supreme Court,

3 which affirmed the 

Court of Appeals’ holding that reversal was warranted due to the ALJ’s failure to 

show that his findings were supported by substantial evidence that Cole’s workrelated injury caused permanent total disability. The Board was directed to remand 

the matter to the ALJ to make those findings.

On January 11, 2022, the ALJ entered his amended opinion and award 

on remand. In that portion of the opinion styled “Findings of Fact & Conclusions 

of Law,” the ALJ made the following pertinent findings:

17. The ALJ finds that the Plaintiff’s description of his

current abilities was credible and is supported by the MRI 

findings of Dr. Nadar who noted the progression of the 

Plaintiff’s work-related low back symptoms to which he

had previously attributed restrictions of no lifting of more

than 30 pounds on an occasional basis and 10-15 frequently.

The ALJ finds that the progression of these symptoms as

identified by Dr. Nadar and the description offered by the 

Plaintiff of how the issue now affects his ambulation is

credible and convincing.

18. The ALJ therefore finds based upon the medical

3 Cole v. KY Fuels Corp., No. 2020-SC-0548-WC, 2021 WL 4489018 (Ky. Sep. 30, 2021).
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evidence as well as the Plaintiff’s explanation of his symptoms, that his ambulation difficulties are due to his workrelated back injury and that the resulting inability to walk 

and perform the activities of daily living that he described

is also causally work-related.

. . . .

21. The ALJ therefore finds based upon the Plaintiff’s 

credible testimony as supported by the objective medical 

evidence cited by Dr. Nadar, that the Plaintiff, given his 

limited education and work experience outside of the 

heavy physical category, would be unlikely to be able to

provide services to another in return for remuneration on

a regular and sustained basis in a competitive economy

due specifically to the work injury found herein. The

ALJ therefore finds that the Plaintiff is permanently and

totally disabled.

KY Fuels filed a petition for reconsideration arguing that the ALJ’s 

amended opinion and award on remand did not comply with the appellate courts’ 

instructions on remand because the ALJ failed to make his determination, based on 

expert proof, that Cole’s worsening impairment was caused by a work-related 

injury. The petition was overruled, and KY Fuels once again appealed to the 

Board.

The Board confined its task to the determination of “whether the ALJ 

has complied with the dictates of the Supreme Court in awarding PTD benefits.” 

The Board determined that while Dr. Nadar’s report was sufficient to demonstrate 

that Cole’s condition had worsened, it failed to address Cole’s nonwork-related 

conditions. The amended opinion and award on remand and the order on petition 
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for reconsideration were vacated, and the matter was remanded to the ALJ “to 

make findings and an award based on the 13% impairment rating and the increase 

in permanent partial disability benefits.” It is from this opinion vacating and 

remanding that Cole has petitioned this Court for review.

II. ANALYSIS

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

is to correct the Board only where the the [sic] 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.” Western 

Baptist Hosp. v. Kelly, 827 S.W.2d 685, 678-88 (Ky. 1992).

The issue which the ALJ has been charged with since 2017 is whether 

there has been a showing “by objective medical evidence of worsening or 

improvement of impairment due to a condition caused by the injury since the date 

of the award or order.” KRS 342.125(1)(d). That issue remains to be resolved and 

for this reason, we affirm.

In City of Ashland v. Stumbo, 461 S.W.3d 392, 395-96 (Ky. 2015), the 

Court set forth a five-part test for an ALJ to utilize in determining whether a 

claimant has become permanently totally disabled as defined in KRS 

342.0011(11)(c). First, the ALJ must find the existence of a work-related injury. 

In this case, although it is clear Cole suffered such an injury to his low back, it is 
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also clear that he suffered from pre-existing and congenital conditions. Although 

findings have been made that Cole’s condition has progressed and worsened, there 

are no findings that the worsening was the result of the work-related injury. 

The second step in the Stumbo analysis requires the ALJ to determine 

the claimant’s impairment rating. 461 S.W.3d at 396. KRS 342.011(35) defines a 

“permanent impairment rating” as the “percentage of whole-body impairment 

caused by the injury or occupational disease as determined by the ‘Guides to the 

Evaluation of Permanent Impairment[.]’” The ALJ herein has found the applicable 

rating to be 13%. However, he has not found that the impairment was caused 

solely by Cole’s work-related injury. As such, he, like the ALJ in Stumbo, is 

unable to fulfill the next step of the analysis, the determination of a “permanent 

disability rating” as defined in KRS 342.0011(36). 

The next step mandated in Stumbo is a finding that “the claimant is 

unable to perform any type of work.” 461 S.W.3d at 396. In paragraph 21 of his 

amended opinion and award on remand, the ALJ has made such a finding, based 

upon Cole’s testimony. He also bases this conclusion on the 2018 MRI findings of 

Dr. Nadar. In paragraph 17, he described those findings as “the progression of the 

Plaintiff’s work-related low back symptoms.” However, in its opinion vacating 

and remanding, the Board noted that the ALJ has failed once again to address 

Cole’s “nonwork-related conditions,” properly segregating them from the PTD 
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determination as required by KRS 342.730(1)(a). Indeed, the Board indicated that 

“there is no specific statement by Dr. Nadar that the low back condition solely 

caused the need for physical restrictions.” As stated in Stumbo, “[a]n ALJ cannot 

simply state that he or she has reviewed the evidence and concluded that a claimant 

is unable to perform any type of work. The ALJ must set forth, with some 

specificity, what factors he or she considered and how those factors led to the 

conclusion that the claimant is totally and permanently disabled.” 461 S.W.3d at 

396. 

The final step in the Stumbo analysis is a determination that the total 

disability was caused by a work-related injury. The Stumbo Court noted that such 

findings are “particularly crucial,” where, as here, the claimant has pre-existing 

conditions as well as work-related conditions. Id. at 397. Once again, the ALJ has 

failed to make the requisite findings and this Court finds that the Board has neither 

“overlooked or misconstrued” the law nor has it erred in its assessment of the 

evidence. W. Baptist, 817 S.W.2d at 687-88.

Accordingly, we affirm the Workers’ Compensation Board’s opinion 

vacating and remanding.

GOODWINE, JUDGE, CONCURS.

THOMPSON, K., JUDGE, CONCURS IN RESULT ONLY. 
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BRIEF FOR APPELLANT:

Randy G. Clark

Lexington, Kentucky

BRIEF FOR APPELLEE

KY FUELS CORP.:

Steven L. Kimbler

Lexington, Kentucky