             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
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 BEFORE THE)COURT. OPINIONS CITED FOR CONSIDERATION
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                                            RENDERED: SEPTEMBER 24, 2015
                                                    NOT TO BE PUBLISHED

               oSouprattr        Court of
                                                               LJ
                              2015-SC-000013-WC


HODGES TRUCKING COMPANY                                              APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2013-CA-001318-WC
                  WORKERS' COMPENSATION NO. 07-86619



ROBERT W. WALDECK;
HONORABLE EDWARD D. HAYS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                          APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Hodges Trucking Company, appeals a Court of Appeals

decision which affirmed in part, reversed in part, vacated in part, and

remanded an opinion of the Workers' Compensation Board ("Board") regarding

Appellee, Robert W. Waldeck's claim. Hodges argues in its appeal that: 1) the

wrong legal analysis was used to determine whether Waldeck was entitled to

permanent total disability ("PTD") benefits upon the reopening of his claim and

2) the Court of Appeals erred when it reversed the Board's finding that the

claim should be remanded to the Administrative Law Judge ("ALJ") for

consideration of whether Waldeck's PTD award should be reduced due to a
prior active disability. For the reasons set forth below, we affirm the Court of

Appeals.

      Waldeck alleged that on May 29, 2007, he injured his back, both legs,

and hip when he fell while working for Hodges. He subsequently filed a Form

101 Application for Resolution of Injury Claim with the Department of Workers'

Claims. Waldeck did not make a claim for a psychological injury in his original

Form 101. The matter was assigned to ALJ Grant Roark. While Waldeck and

Hodges stipulated to many aspects of the claim, the parties could not agree

whether Waldeck was entitled to permanent disability benefits under KRS

342.730 or whether Waldeck's impairment was caused by a pre-existing active

condition. ALJ Roark held an evidentiary hearing at which Waldeck and his

wife were the only witnesses.

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

where he made the following findings of fact and conclusions of law: 1) that

Waldeck "had a pre-existing active lower back condition due to a 2004 injury

for which he underwent surgery . . . [leaving him] with a residual 10%

impairment rating under the 5th Edition of the AMA Guides"; 2) that based on

Dr. John Guarnaschelli's opinion, "Waldeck's current low back pain and need

for any additional treatment is attributable to his May 29, 2007, work incident

[at Hodges]"; 3) that Waldeck did not carry "his burden of proving he has any

permanent impairment rating associated with his claimed injury"; and 4) that

Waldeck reached maximum medical improvement ("MMI") as of September 25,

2008. Accordingly, ALJ Roark awarded Waldeck temporary total disability



                                        2
benefits from June 6, 2007, through September 24, 2008, and all reasonable

and necessary medical expenses for the cure or relief of the effects of his injury

in accordance with KRS 342.020. Neither party filed an appeal from ALJ

Roark's opinion and award.

      On or about May 2, 2012, Waldeck filed a motion to reopen pursuant to

KRS 342.125. Waldeck alleged that subsequent to the rendering of ALJ

Roark's opinion and award, he came under the care of Dr. Christopher B.

Shields, a neurosurgeon. Dr. Shields diagnosed Waldeck with lower back pain

with components of L5 and S1 radiculopathy bilaterally for which he

recommended a laminectomy, foraminotomy, and facetectomy with fusion at

the L4-L5 interspace, and the L5-S1 interspace as treatment. Waldeck

underwent the proposed surgery which was paid for by Hodges.

      Waldeck filed an affidavit to support reopening his claim, in which he

averred that he "continued to experience low back pain" and "began to

experience depression due to [his] chronic pain." Waldeck also attached a

report by Dr. Warren Bilkey, who believed that Waldeck's impairment had

increased post-surgery. Dr. Bilkey believed that Waldeck had a 29%

impairment, of which 10% was due to the prior 2004 injury. Thus, Dr. Bilkey

assigned Waldeck a 19% impairment attributable to the present work-related

injury.

      Further, Waldeck filed an evaluation by Dr. Steven J. Simon, a licensed

clinical psychologist. Dr. Simon believed that Waldeck developed a mood

disorder with major depression secondary to his back injury and chronic pain.



                                        3
Dr. Simon assigned Waldeck a 20% psychiatric impairment related to the

initial work-related injury.

      After the surgery, Waldeck admitted that he felt better. He indicated that

his legs no longer bothered him like before the surgery. However, he still

complained of pain in his lower back and hips.

      The Chief A1.0 assigned ALJ Edward Hays to the matter. He sustained

the motion to reopen. After a review of the evidence ALJ Hays awarded

Waldeck PTD benefits. He found:

      [I]t is clear that [Waldeck's]condition has substantially worsened
      and in support of this finding, the ALJ finds that [Waldeck]now has
      a 29% permanent impairment to the body as a whole based on the
      AMA Guides, Fifth Edition, 10% of which was pre-existing active,
      and 19% of which is the result of the injury. In addition thereto,
      the ALI. finds [Waldeck] has a 5% impairment for work-related
      depression. Thus, [Waldeck's] permanent impairment has
      substantially worsened since the Opinion of Judge Roark.

ALJ Hays then determined that Waldeck was totally occupationally disabled

due to his limited work experience, physical restrictions, intelligence, and

residual chronic pain along with the fact he was forty-four years old. Hodges

filed a petition to reconsider arguing that ALJ Hays erred in assigning a

psychological impairment rating and in finding he was entitled to PTD benefits,

because Waldeck's condition had not worsened. A1.0 Hays denied the petition

for reconsideration, and Hodges appealed to the Board.

      The Board affirmed ALJ Hays's findings regarding the worsening of

Waldeck's condition, his entitlement to PTD benefits, and the assigning of a

psychological impairment. However, the Board vacated the PTD award and

remanded for findings regarding Waldeck's low back injury which occurred in

                                        4
2004. If that injury resulted in any occupational disability, then that

percentage was to be deducted from Waldeck's PTD benefit award. Hodges

appealed to the Court of Appeals.

      The Court of Appeals affirmed in part, reversed in part, vacated in part,

and remanded the Board's opinion. The Court of Appeals vacated the Board's

decision to the extent that it affirmed ALJ Hays's finding on the psychological

claim. On remand, the ALJ was to determine if Waldeck's psychological injury

claim had accrued and was known by him prior to rendition of ALJ Roark's

opinion and award. The Court of Appeals also sua sponte vacated the portion

of the Board's opinion which remanded the matter for further fact finding on

whether the prior pre-existing active impairment resulted in occupational

disability and should have been deducted from Waldeck's PTD award. Finally,

the Court of Appeals affirmed the portion of the Board's opinion which affirmed

the reopening of the claim and Waldeck's entitlement to PTD benefits. This

appeal followed.

      The Board's review in this matter was limited to determining`whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where the 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."   Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,



                                         5
or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. As fact finder, the AIJ had sole

authority to determine the weight, credibility, substance, and inferences to be

drawn from the evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418,

419 (Ky. 1985). Keeping these standards in mind, we affirm the Court of

Appeals.


  I. THE PROPER LEGAL ANALYSIS WAS USED TO FIND WALDECK WAS
     ENTITLED TO PTD BENEFITS ON THE REOPENING OF HIS CLAIM

      Hodges first argues that an incorrect legal analysis was used to find that

Waldeck was entitled to PTD benefits on the reopening of his claim. Hodges

admits that substantial evidence supports the finding that Waldeck's

permanent functional impairment rating has increased since Al,,J Roark's

opinion, order, and award but believes the impairment rating alone does not

entitle Waldeck to PTD benefits. Hodges argues that an analysis of Waldeck's

current condition and disability compared to his condition and disability at the

time of the rendition of AI,J Roark's opinion and award would show that

Waldeck's disability did not increase.

      KRS 342.125(1)(d) provides that a workers' compensation award may be

reopened when there has been a "change of disability as shown 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." "Evidence

of a post-award increase in the permanent impairment rating resulting from a

work-related condition provides the objective medical evidence of a worsening



                                         6
of impairment that KRS 342.125(1)(d) requires for reopening." James T.

English Tiucking v. Beeler, 375 S.W.3d 67, 70 (Ky. 2012) (citing Colwell v.

Dresser Instrument Division, 217 S.W.3d 213, 219 (Ky. 2007)).

      Colwell, 217 S.W.3d at 219, provides that when making a claim for PTD

benefits on reopening, "the claimant's burden on the merits . . . [is] to prove by

objective medical evidence that she sustained a post-settlement worsening of

impairment from the injury; to prove that the change was permanent; and to

prove that it caused her to be totally and permanently disabled under the

standard described in Ira A. Watson Department Store v. Hamilton, [34 S.W.3d

48 (Ky. 2000)]." Hamilton states that a permanent impairment rating is a

prerequisite to a finding of PTD under KRS 342.0011(11)(c), but that other

factors should be considered. 34 S.W.3d at 51. These factors include an

analysis of the worker's post-injury physical, emotional, intellectual, and

vocational status and how they interact. The likelihood of whether the

particular worker will be able to find work consistently under normal

employment conditions should also be considered. Id. A worker's ability to

find work consistently under normal employment conditions is affected by

factors such as whether the individual will be able to work dependably and

whether any physical restrictions will interfere with vocation capabilities.   Id.

      In this matter, while ALJ Roark found that Waldeck suffered from a

work-related injury, he did not find that Waldeck merited a permanent

impairment rating. However, based on expert opinion, at the time of reopening,

substantial evidence supported AL I Hays's conclusion that Waldeck suffered



                                         7
an increased impairment rating and that the change was permanent. Hodges

admits the record supports this conclusion. The question then becomes

whether Waldeck is permanently and totally disabled per Hamilton.

      ALJ Hays found that Waldeck had limited ability to find employment in

fields he had prior training and experience; noted that Dr. Loeb opined that

Waldeck cannot perform repetitive bending, stooping, or lifting greater than

twenty to twenty-five pounds and that Waldeck can no longer function as a

truck driver; and adopted Dr. Bilkey's finding that Waldeck can perform "light

duty" work only. These findings provide substantial evidence to support ALJ

Hays's conclusion that Waldeck was entitled to PTD benefits. He did not

misapply Hamilton in so finding. While Waldeck may have obtained relief due

to the surgery, that does not preclude the ALJ from finding he is permanently

and totally disabled.

      Hodges also argues that ALJ Hays's finding, that Waldeck is entitled to

PTD benefits, should be reconsidered in light of the fact that the Court of

Appeals reversed and remanded on Waldeck's psychological claim. However,

ALJ Hays based the analysis of Waldeck's entitlement to PTD benefits on his

back injury and not the psychological impairment. Thus, we decline to reverse

the Court of Appeals.


II. THE COURT OF APPEALS DID NOT ERR BY REVERSING THE BOARD'S
   DECISION TO REMAND FOR CONSIDERATION OF WALDECK'S PRIOR
                           DISABILITY

      Hodges's last argument is that the Court of Appeals erred by reversing

the portion of the Board's opinion which remanded the matter to the ALJ for


                                        8
findings on whether Waldeck's award should be reduced due to a pre-existing

active disability. The Board held that, based on Roberts Brothers Coal Co. v.

Robinson, 113 S.W.3d 181 (Ky. 2003):

                   ALJ in this instance noted it is undisputed Waldeck
      had a 10% pre-existing active impairment rating as determined by
      ALJ Roark on March 2, 2009. However, he failed to determine
      whether the pre-existing active impairment resulted in any
      occupational disability. Since no claim was ever filed for the 2004
      injury, and resulting surgery, there is no overlap in the award
      period.
             Since Waldeck's prior lumbar low back injury in 2004, which
      resulted in surgery, was work-related, the ALJ must determine
      whether the injury and impairment resulted in any occupational
      disability. If so, that percentage must be deducted from the award
      of PTD benefits.

The Court of Appeals reversed the Board because ALJ Hays made a finding that

all of Waldeck's current occupational disability is attributable to his 2007

injury. The court supported its ruling with Dr. Bilkey's opinion imposing

restrictions on Waldeck due to the 2007 work injury and ALJ Roark's prior

finding that after the 2004 injury Waldeck "returned to his roofing job without

restrictions." Thus, the Court of Appeals concluded that ALJ Hays's award was

not erroneous as a matter of law. Hodges argues that the Court of Appeals

erred because ALJ Roark and ALJ Hays did not make the factual findings

alleged in the opinion. We disagree.

      For there to be an exclusion from a total disability award, it must be

shown that the pre-existing condition was symptomatic and restrictive and

affected the employee before the second work injury. Id. at 183. ALJ Hays

specifically noted that the findings contained in ALJ Roark's opinion, order,

and award were considered and are res judicata. ALJ Roark's opinion stated

                                         9
that he found Waldeck's then current back pain and disability were entirely

attributable to the work-related injury in this matter, and not the previous

2004 injury. ALJ Roark also found that Waldeck worked without restriction

after that injury. ALJ Hays then made the same finding based on Dr. Bilkey's

opinion and the restrictions placed upon Waldeck by him which, according to

the doctor, were attributable to the 2007 work-injury. Thus, the Court of

Appeals decision which held that the Board erred in remanding the claim to the

ALJ must be affirmed because findings were made by both ALJs that Waldeck's

current disability was entirely attributable to the 2007 injury.


    III. THE COURT OF APPEALS DID NOT ERR BY REMANDING THIS
      MATTER FOR ADDITIONAL FINDINGS OF FACT ON WALDECK'S
                       PSYCHOLOGICAL CLAIM

      Waldeck argues in his reply brief that the Court of Appeals erred by

vacating the Board's decision to the extent it affirmed the ALJ's decision on his

psychological claim. The matter was remanded to the ALJ for further fact

finding on whether Waldeck knew or reasonably should have known that his

depression was causally related to his work injury and that he should have

pursued a claim for a psychological injury at that time. Waldeck argues that

there is no evidence that Waldeck's initial treatment was work-related until

diagnosed by Dr. Simon in August 2011.

      However, Waldeck was not the prevailing party on this issue and did not

file a cross-appeal to challenge the Court of Appeals decision regarding the

psychological impairment. Therefore the issue is not properly preserved for




                                        10
review and we decline to address it. Fischer v. Fischer, 348 S.W.3d 582, 596

(Ky. 2011).

      For the above stated reasons, we affirm the Court of Appeals.

      All sitting. All concur.




COUNSEL FOR APPELLANT,
HODGES TRUCKING COMPANY:

Douglas Anthony U'Sellis


COUNSEL FOR APPELLEE,
ROBERT W. WALDECK:

James L. Kerr




                                       11
