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NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED!'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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 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 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 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 

DOCUMENT TO THE COURT AND ALL PARTIES TO THE 

ACTION. 
RENDERED: DECEMBER 18, 2014 

NOT TO BE PUBLISHED 

,iujarrittr (Court 

2014-SC-000085-WC ATELk..-a_vs 

APPELLANT 

11 

JOHNNY WILDER 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2013-CA-000820-WC 

WORKERS' COMPENSATION NO. 11-01566 

ENTERPRISE MINING; 

HONORABLE WILLIAM J. RUDLOFF, 

ADMINISTRATIVE LAW JUDGE; AND 

WORKERS' COMPENSATION BOARD APPELLEES 

MEMORANDUM OPINION OF THE COURT 

REVERSING 

Appellant, Johnny Wilder, appeals from a Court of Appeals decision 

which reversed his award of permanent total disability ("PTD") benefits. Wilder 

argues that the Court of Appeals erred in reversing his award because the ALJ 

had sole discretion to grant an award of PTD benefits and there is substantial 

evidence to support the decision. For the below stated reasons, we reverse the 

Court of Appeals. 

Wilder was employed by Appellee, Enterprise Mining, for approximately 

eleven years as a heavy equipment operator. On April 27, 2011, he stopped 

working due to severe back and neck pain which was so unbearable that he 

was unable to safely operate machinery. Wilder filed a Form 101 on 
December 5, 2011, alleging cumulative trauma injuries caused during his 

employment with Enterprise. 

Wilder testified as a part of his claim. He stated that he only has an 

eighth grade education and has not obtained a GED. Wilder's job experience 

included working as a heavy equipment operator in coal mines for over twenty 

years. As a result of this employment, he experienced repetitive trauma to his 

back and neck. Wilder testified that he did not experience any significant 

symptoms due to the trauma prior to April 2010. However, in April 2010, he 

began to feel pain but continued to work until his doctor informed him that his 

job caused his condition. Wilder still experiences pain in his neck, back, 

elbows, knees, ankles, shoulders, hands, left wrist, and joints. Wilder can walk 

using a walker or cane, but his doctors recommend he use a wheelchair. 

Wilder also suffers from non-work related degenerative arthritis.' 

Wilder was examined by several medical experts as a part of his claim. 

Of particular interest is the report of orthopedic surgeon Robert Johnson. Dr. 

Johnson assigned Wilder a 45% whole person impairment according to the 

AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, of which 

he believed 9% was caused by work-related cumulative trauma. The other 36% 

of the impairment was due to the non-work related degenerative arthritis. Dr. 

Johnson also believed that Wilder not only lacked the physical capacity to 

perform his pre-injury job but also could not hold any gainful employment due 

to pain and mobility restrictions. 

I Wilder suffers from ankylosing spondylitis. 

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Dr. Richard Sheridan also examined Wilder. He believed that all of 

Wilder's complaints were caused by either degenerative arthritis or MarieStrumpell disease. Dr. Sheridan did not believe Wilder's pain was work-related 

and assigned no permanent partial impairment rating or work restrictions. 

After a review of the evidence, the ALJ rendered an opinion and order 

which found Wilder was entitled to PTD benefits. However, due to an unrelated 

issue, the Board reversed the ALJ and remanded the matter for him to consider 

Dr. Sheridan's deposition testimony. After a review of that testimony, the ALJ 

again entered an opinion and award finding that Wilder was entitled to PTD 

benefits. In so finding, the ALJ stated: 

[Wilder] argues that he has sustained a 9% whole person physical 

impairment and as a result of the work injury. He further argues 

that he is permanently and totally disabled from work. The 

defendant argues that the plaintiff sustained no new injury from 

the work incident. 

In the present case the ALJ finds more convincing the 

opinions of Dr. Johnson. His opinion comports with the treatment 

records and with the ALJ's perception of [Wilder]. I, therefore find 

that the plaintiff has sustained a 9% physical whole person 

impairment. 

"'Permanent total disability" means the condition of an 

employee who, due to an injury, has a permanent disability rating 

and has a complete and permanent inability to perform any type of 

work as a result of an injury . . [KRS] 342.0011. To determine if 

an injured employee is permanently totally disabled, an ALJ must 

consider what impact the employee's post-injury physical, 

emotional, and intellectual state has on the employee's ability to 

find work consistently under normal employment conditions . . . . 

[and] to work dependably[.]' Ira A. Watson Dept. Store v. Hamilton, 

34 S.W.3d 48, 51 (Ky. 2000). In making that determination, 

the ALJ must necessarily consider the worker's 

medical condition . . . [however,] the ALJ is not 

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required to rely upon the vocational opinions of either 

the medical experts or the vocational experts. A 

worker's testimony is competent evidence of his 

physical condition and of his ability to perform various 

activities both before and after being injured. 

Id. at 52 (Internal citations omitted). Also, a worker's testimony is 

competent evidence of his physical condition and of his ability to 

perform various activities both before and after being injured. Id.; 

see also Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979). 

In the present case the ALJ considers [Wilder's] debilitating 

physical injuries, his limited education and lack of transferrable 

skills, alongside his work history. [Wilder's] injuries necessitate 

that he cease working and use a walker or wheelchair just to get 

around. In spite of his occupational youth, [Wilder] has a steady 

work history. Thus the ALJ finds most persuasive the opinions of 

Dr. Johnson and Mr. Ellis. The AL I is persuaded that if [Wilder] 

could work, he would be working. I therefore find that [Wilder] is 

permanently and totally disabled. 

The Board affirmed the ALJ's opinion and order. 

Enterprise appealed to the Court of Appeals who reversed the award of 

permanent and total disability benefits in a two to one opinion. The majority 

opinion believed that the ALJ erroneously relied on Dr. Johnson's report for 

three reasons: 1) the report only attributed Wilder's back and neck condition to 

the work-related cumulative trauma; 2) the report did not specifically state that 

Wilder's cumulative trauma prevented Wilder from being able to work; and 3) 

the ALJ misinterpreted a section of the report where Dr. Johnson states that 

Wilder does not retain the physical capacity to return to his prior employment. 

On remand the ALJ was instructed to enter an award in Wilder's favor for 

permanent partial disability benefits based on the 9% impairment rating. 

Judge Thompson dissented because he believed that the ALJ's decision to rely 

on Dr. Johnson's report in finding that Wilder was permanently and totally 

disabled was within his discretion as fact finder. This appeal followed. 
In reviewing Wilder's argument, we note that the Court of Appeals only 

needed to reverse the Board "if it overlooked or misconstrued controlling 

statutes or precedent, or committed an error in assessing the evidence so 

flagrant as of to cause gross injustice." Western Baptist Hospital v. Kelly, 827 

S.W.2d 685, 687-688 (Ky. 1992). The ALJ has the sole authority to determine 

the weight, credibility, substance, and inference to be drawn from the evidence. 

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Further, 

[t]he 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. 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. 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. 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. The crux of the inquiry on appeal is whether the 

finding which was made is so unreasonable under the evidence 

that it must be viewed as erroneous as a matter of law. 

Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). 

Keeping these standards in mind, we reverse the Court of Appeals. 

The majority opinion attempts to take over the fact finding role from the 

ALJ. The Court of Appeals was charged with reviewing the ALJ's opinion and 

award to determine whether substantial evidence supported the finding that 

Wilder is permanently and totally disabled as a result of cumulative trauma 

suffered while working at Enterprise Mining. Instead the Court of Appeals 

interpreted the evidence in a manner to support its own conclusion. The ALJ 

was free to interpret Dr. Johnson's medical report and the ALJ's conclusions 

5 
based on those interpretations were not unreasonable. Additionally, the AW 

cited not only to Dr. Johnson's report to support his findings but also to a 

vocational review, Wilder's limited education, and that Wilder must use a 

walker or wheelchair just to move around in finding that he was permanently 

and totally disabled. While evidence was presented to counter the ALJ's 

conclusion, the mere fact that contrary evidence could lead to a different result 

does not provide grounds to reverse the ALJ. Id.; McCloud v. Beth -Elkhorn 

Corp., 514 S.W.2d 46, 47 (Ky. 1974). Additionally, while it is clear that Wilder's 

degenerative arthritis is a large part of his disability, the ALJ was within his 

discretion to find that the work-related cumulative trauma also prevented 

Wilder from working. We cannot say that the ALJ's conclusion was so 

unreasonable to compel a reversal of his opinion because substantial evidence 

supported it. 

For the above stated reasons, we reverse the opinion of the Court of 

Appeals. 

All sitting. All concur. 

COUNSEL FOR APPELLANT, 

JOHNNY WILDER: 

McKinnley Morgan 

COUNSEL FOR APPELLEE, 

ENTERPRISE MINING: 

Jeffrey Dale Damron 

6