               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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: AUGUST 24, 2017
                                                      NOT TO BE PUBLISHED

               juprettte @:nurf nf ~enfutku

                              2016-SC-000131-WC


SLATER FORE CONSULTING, INC.                                          APPELLANT


                    ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2015-CA-000778-WC
                     WORKERS' COMPENSATION BOARD
                            NO. 12-WC-70061


LESLIE B. RIFE; HON. WILLIAM                                          APPELLEES
J. RUDLOFF, ADMINISTRATIVE LAW
JUDGE; AND WORKERS' COMPENSATION
BOARD



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      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



                                        2
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 work-

related accident and was permanently and totally disabled effective from and

after September 9, 2012, the date Rife last worked. The Board affirmed this

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

                                        3
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

                                        4
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.

                                        5
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 work-

related 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 pre-

existing 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.



                                        8
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




                               9
