RENDERED: OCTOBER 16, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0221-WC

TIME WARNER CABLE, INC. APPELLANT

PETITION FOR REVIEW OF A DECISION

v. OF THE WORKERS’ COMPENSATION BOARD

ACTION NO. WC-15-69813

RICKY SMITH;

HONORABLE JANE RICE WILLIAMS, 

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.

ACREE, JUDGE: Time Warner Cable appeals the Workers’ Compensation 

Board’s January 17, 2020 order upholding the Administrative Law Judge’s (ALJ)

decision assessing Ricky Smith as permanently, totally disabled. Time Warner 
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asserts the ALJ abused its discretion by failing to rely on substantial evidence. 

Finding no error, we affirm. 

BACKGROUND

For twenty-eight years, Smith worked for Time Warner as a 

maintenance technician. His position involved fixing outages by climbing utility 

poles. This means Smith had to lift, pull, push, stretch, crawl, carry, and bend 

multiple times a day. Smith only ever knew manual labor in his career and only 

had a high school education. He worked for cable companies since 1989 and prior 

to his employment, worked at a feed store, loading feed and fertilizer. 

On August 24, 2015, he felt a pop in his back while carrying an 

extension ladder from his truck to a pole. He fell to the ground in severe pain and 

the ladder landed on his shoulder and neck. The fall resulted in Smith being 

diagnosed with multiple injuries to his back, shoulder, and neck. Over the years, 

he was diagnosed with multiple physical ailments, including, but not limited to: 

low back pain, disc degeneration, intervertebral disc disorder, cervicalgia, tightness 

in range of motion, AC joint arthrosis, and disc herniation. In addition to his 

physical diagnoses, he was also assessed as having psychological problems such 

as: anxiety, probable symptom magnification, depressive disorder, and somatic 

symptom disorder. 
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Because of his injuries, Smith filed for workers’ compensation

benefits. The ALJ held a hearing on September 5, 2018, and ultimately found 

Smith permanently, totally disabled due to his physical and psychological 

condition. Time Warner appealed to the Workers’ Compensation Board, which 

upheld the ALJ’s decision. This appeal followed. 

STANDARD OF REVIEW

The ALJ is the finder of fact in workers’ compensation matters. Ira 

A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). In that regard,

KRS[1] 342.285(2) provides that the Board shall not 

reweigh the evidence and substitute its judgment for that 

of the ALJ with regard to a question of fact. The standard 

of review with regard to a judicial appeal of an 

administrative decision is limited to determining whether 

the decision was erroneous as a matter of law. American 

Beauty Homes v. Louisville & Jefferson County Planning 

& Zoning Commission, Ky., 379 S.W.2d 450, 457 (1964). 

Where the ALJ determines that a worker has satisfied his 

burden of proof with regard to a question of fact, the issue 

on appeal is whether substantial evidence supported the 

determination. Special Fund v. Francis, Ky., 708 S.W.2d 

641, 643 (1986). Substantial evidence has been defined as 

some evidence of substance and relevant consequence, 

having the fitness to induce conviction in the minds of 

reasonable people. Smyzer v. B.F. Goodrich Chemical 

Co., Ky., 474 S.W.2d 367 (1971). Although 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. BethElkhorn Corp., Ky., 514 S.W.2d 46 (1974). The crux of 

the inquiry on appeal is whether the finding which was 

 

1 Kentucky Revised Statutes.
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made is so unreasonable under the evidence that it must be 

viewed as erroneous as a matter of law. Special Fund v. 

Francis, supra, at 643.

Id.

ANALYSIS

Time Warner argues the ALJ erred in finding, without substantial 

evidence, that Smith was permanently, totally disabled. After review of the record, 

we are not persuaded by Time Warner’s argument. 

Time Warner claims Smith’s psychological condition was the sole 

reason he was found to be permanently, totally disabled. That is ill-founded. The 

ALJ stated Smith’s physical injuries alone were not enough to find him 

permanently, totally disabled, but, when taken in conjunction with his 

psychological injuries, he was disabled. Additionally, the ALJ considered Smith’s 

“age, education level, vocational skills, medical restrictions, [and] emotional state” 

to determine an award.

The ALJ’s determination is supported by substantial evidence. It is 

undisputed that Smith sustained physical, work-related injuries. Additionally, two 

doctors assessed Smith to be psychologically impaired, although their opinions 

differed in their details. One doctor noted a 5% impairment rating, whereas 

another doctor assessed a 60% impairment rating, with no restrictions. The doctors 
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who assessed Smith’s condition had a near unanimous decision that he could not 

return to the work he performed for the past twenty-eight years. 

The ALJ found Smith’s injuries left him with pain that is not 

adequately managed and determined he is unlikely to find and continue 

employment. On conflicting evidence, the ALJ has sole discretion to determine 

the quality, character, and substance of evidence. Burton v. Foster Wheeler Corp., 

72 S.W.3d 925, 929 (Ky. 2002) (citing KRS 342.285); see also KRS 342.290.

This Court cannot reverse a decision simply because there may be evidence of 

record that conflicts with the decision; the test is whether there is evidence of 

substance to support it. The ALJ was well within its bounds to assess a permanent, 

total disability on the combined effects of the physical and psychological 

conditions. For the foregoing reasons, we affirm the Board’s January 17, 2020 

order affirming the ALJ’s decision. 

ALL CONCUR.

BRIEF FOR APPELLANT:

Rodney J. Mayer

Louisville, Kentucky

BRIEF FOR APPELLEE RICKY 

SMITH:

Bruce R. Bentley

London, Kentucky