             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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: MARCH 23, 2017
                                                    NOT TO BE PUBLISHED


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COMMONWEALTH OF KENTUCKY,                                         Af'f3ELLAN'f
UNINSURED EMPLOYERS' FUND


                   ON APPEAL FROM COURT OF APPEALS
                       CASE NO. 2016-CA-00284-WC
V.                  WORKERS' COMPENSATION BOARD
                            NO. 13-WC-01012


MORGAN CRAYNE; PIPER LOGGING;                                     APPELLEES
HON. STEPHANIE L. KINNEY,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD



                 MEMORANDUM OPINION OF THE COURT

                                AFFIRMING


      In 2013, Morgan Crayne (Crayne), was working at Piper Logging (Piper),

in West Kentucky. On April 17, 2013, Crayne stepped on a copperhead snake

while he was cutting logs with a chainsaw. He jumped back, landed

awkwardly, and injured his lower back. After he gathered himself, Crayne

killed the snake and continued his work. One other Piper employee witnessed

this event.

      Later that day, Crayne was transporting lumber to Cadiz, Kentucky. As

he was driving the truck downhill, the seat moved forward and caught Crayne
between the seat and the steering wheel. This intensified his lower back pain.

Crayne continued to work for Piper for a brief period thereafter but

subsequently ceased working due to his back pain.

      Crayne filed his Form 101 on July 1, 2013, wherein he described the

April 17, 2013 incident that injured his back. During the course of the

administrative hearings, Crayne contended that he worked for Piper six days a

week for approximately $100 dollars a day. He was paid in cash and by check.

Piper's owner, Edward "frankie" Piper, claimed that Crayne worked only three

days per week.

      The Administrative Law Judge (AW) considered testimony from Frankie

Piper, other employees, and multiple physicians who treated Crayne after his

injury. The AW discussed the testimony of Crayne's doctor, Dr. Davies, and

Dr. Best, who was the doctor selected by the Uninsured Employers' Fund

(UEF), to perform an independent medical evaluation of Crayne. Based on this

evidence, the AW specifically stated that "Dr. Best and Davies have both

indicated the work event on April 17, 2013 is what caused Plaintiffs back

condition that eventually required surgery." (Emphasis added). As a result,

the AW awarded Crayne temporary total disability (TTD) benefits, and

permanent partial disability (PPD) benefits, and medical benefits. The AW

specifically determined that Crayne worked an average of three to four days per

week and that he received $100 per day in compensation.

      Unfortunately, neither Piper nor Frankie Piper was insured. As such,

UEF was ordered to pay the benefits awarded by the AW. UEF appealed

                                       2
several issues to the Workers' Compensation Board (Board), which

unanimously affirmed the ALJ's determination. UEF then appealed to the

Court of Appeals, which unanimously affirmed the Board's decision. UEF now

appeals to this Court. Having reviewed the record and the law, we affirm the

Court of Appeals.

                               Standard or Review

      In order to reverse, we must determine that the ALJ's findings were "so

unreasonable under the evidence that it must be viewed as erroneous as a

matter of law." KRS 342.285; Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d

48, 52 (Ky. 2000). This is clearly a difficult standard to satisfy.

                                     Analysis

      UEF raises three issues on appeal: 1) Crayne failed to present

substantial evidence that Crayne experienced a work-related injury; 2) Crayne

failed to provide sufficient notice of his alleged injury to Piper or Piper's owner;

and 3) the ALJ's determination of Crayne's average weekly wage (AWW) was

based on mere speculation. Each claim will be addressed in tum.

Work-Related Injury

      UEF argues that the medical testimony did not affirmatively establish

that Crayne's injury was work related. See Brown-Forman Corp. v. Upchurch,

127 S.W.3d 615, 621 (Ky. 2004) ("Medical causation must be proved to a

reasonable medical probability with expert medical testimony but [] does not

require it to be proved with objective medical findings."). UEF speculates that a

preexisting condition and other labor performed by Crayne outside of his

                                         3
employment with Piper were the true causes of his injury. UEF also takes

great issue with the fact that Crayne did not see a doctor regarding his injury

until six weeks after the injury occurred.

      In contrast to the mostly speculative arguments presented by UEF, the

AW considered the depositions and evidence of record, including Crayne's

testimony and that of two other Piper employees. As previously noted, the AW

also discussed the testimony of Crayne's doctor, Dr. Davies, and Dr. Best, who

was the doctor selected by UEF to perform an independent medical evaluation

of Crayne. Also, as previously noted, the AW specifically held that "Dr. Best

and Davies have both indicated the work event on April 17, 2013 is what

caused Plaintiffs back condition that eventually required surgery." (Emphasis

added). Therefore, substantial evidence supports the AW's determination that

Crayne's injury was work-related.

Notice

      KRS 342.185(1) and KRS 342.200 govern notice in workers'

compensation cases. Citing these provisions, the Court of Appeals summarized

the evidence presented to the AW as follows:

      Regarding notice, medical records show that Crayne reported
      having an accident on April 17, 2013. He has consistently
      reported this date and the accident as having occurred on that
      date. A fellow employee, Mccaslin, acknowledged the accident and
      another employee, Blackburn, stated that he heard them discuss
      it. And the owner was present at the site on the day of the
      accident. The AW evaluated the evidence and determined that the
      owner was aware of the incident and of Crayne's accident. Crayne
      testified that he told Piper that day and did not return to the work
      site for a few weeks.


                                        4
It is well-settled that "[t]he AW has the sole discretion to determine the quality,

character, and substance of the evidence and may reject any testimony and

believe or disbelieve various parts of the evidence regardless of whether it

comes from the same witness or the same party's total proof." Toyota Motor

Mfg., Kentucky, Inc. v. Tudor, 491 S.W.3d 496, 503 (Ky. 2016). Therefore, we

agree with the Court of Appeals that substantial evidence supports the AW's

determination that Piper received proper notice of Crayne's claim.

AWW

      We now turn to the issue of the AW's calculation of Crayne's average

weekly wage (AWW). The Court of Appeals succinctly summarized the relevant

facts and law as follows:

      As noted by the AW, KRS 342.140(1)(d) sets forth the method for
      determining a worker's AWW if the claimant's wages are fixed by
      the day. It is not disputed that Crayne's wages were set in this
      manner, and he was paid $100.00 per day. Furthermore, given
      that the employer did not provide the required paperwork, the AW
      only had the testimony of the owner, Crayne, and another
      employee, Mccaslin, plus copies of Crayne's checks. Based on this
      information, the AW opined that Crayne worked an average three
      to four days per week in the thirteen-week quarter preceding the
      work accident, and he earned $350.00 per week.

We agree with the Court of Appeals that this constitutes substantial evidence

that the AW's AWW calculation is reasonable. See Tudor, 491 S.W.3d at 503.

                                   Conclusion

      For the foregoing reasons, we hereby affirm the Court of Appeals'

decision, affirming the decisions issued by the Board and the AW.

      All sitting. All concur.


                                        5
COUNSEL FOR APPELLANT:

Charles Davis Batson
Assistant Attorney General


COUNSEL FOR APPELLEE, MORGAN CRAYNE:

Mark H. Edwards
David Craig Troutman
Edwards & Kautz, PLLC


COUNSEL FOR APPELLEE, PIPER LOGGING:

Robert Bartley Frazer
Greenwell & Frazer




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