         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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: MAY 5, 2016
                                                       NOT TO BE PUBLISHED

              ,i5nprrtur Court of 'Arl Fij
                                       a-uriVe
                             2015-SC-000322-WC


JOHNNIE BROWN                                                       APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-001751-WC
                  WORKERS' COMPENSATION NO. 13-76990



THE WILLOWS AT HAMBURG;
HONORABLE JEANIE OWEN MILLER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                         APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Johnnie Brown, appeals a Court of Appeals decision which

affirmed an opinion of the Workers' Compensation Board ("Board") that

affirmed in part and reversed in part an opinion and award by the

Administrative Law Judge ("AW"). Brown argues that the ALJ erred by relying

on portions of contradictory expert opinions to select an impairment rating for

her low back injury. For the below stated reasons, we affirm the Court of

Appeals.

      Brown was employed by Appellee, The Willows of Hamburg, as a certified

nursing assistant ("CNA"). As Brown and another assistant lowered a resident

from a bed into a wheelchair, she felt a pop in her back. Brown stated that she
immediately experienced pain and that her left leg felt as though it was about

to give out. Brown was unable to complete her shift and was taken to an

urgent treatment center. She has not returned to work since.

       Brown was treated by Dr. Jerry Morris, an osteopath. He assessed

Brown with: a work-related strain of the low back and left hip; persistent pain

in the low back radiating into the left lateral thigh in the L4-S 1 dermatome,

likely radiculopathy; persistent tenderness in the left sciatic notch, left

trochanteric bursa and tensor fascia lata muscle of the left thigh, with left

piriformis muscle syndrome; and deranged gait due to left lower extremity pain.

Dr. Morris did not believe that Brown could return to work as a CNA because of

her inability to bear weight, her need for crutches, and the sedating

medications she takes. He referred Brown to Dr. Oliver James, II, a pain

specialist. Dr. James performed an x-ray of Brown's spine and left hip. He

also reviewed an MRI that Brown previously underwent and noted that her

lumbar spine appeared normal. He noticed there was no documentation of the

facet joints.

       Brown filed a Form 101 alleging she injured her left hip, left leg, and the

left side of her back as a result of the work-related incident. The medical

records from Dr. Morris and Dr. James were filed, as well as reports from

several experts. Brown filed the independent medical evaluation ("IME")

performed by Dr. Anthony McEldowney. He diagnosed her with left lumbar

sprain/strain, and left greater trochanteric bursitis. Dr. McEldowney opined

that Brown had a permanent 10% whole person impairment. He apportioned



                                          2
7% of that rating for a work-related lumbar condition and 3% for a work-

related left hip condition. Dr. McEldowney found that Brown reached

maximum medical improvement ("MMI") and recommended she be placed on

permanent restrictions.

      In response, the Willows filed the IME of Brown performed by Dr. Phillip

Corbett. Dr. Corbett x-rayed Brown's lumbar spine and found minimal

evidence of degenerative changes. He diagnosed Brown with: exogenous

obesity, degenerative joint disease involving both hips, and left greater

trochanter bursitis and sprain of the gluteus maximus, tensa fascia lata, and

gluteus medius, left buttock, as well as contusion of those muscles. Dr.

Corbett assigned Brown a 0% impairment for any injury to her lumbar spine

and 0% regarding her lower extremities.

      After a review of the evidence, the ALJ found, based on Dr. Morris's

opinion, that Brown suffered a work-related low back strain and left hip injury.

In regards to Brown's impairment rating and benefits, the ALJ made the

following findings:

      Having found that [Brown] suffered a work injury, the undersigned
      finds [she] has suffered a permanent partial disability as a result of
      the work injury. The medical opinions as to impairment are
      contradictory. Dr. Corbett opined [Brown] had no impairment. Dr.
      McEldowney opined she suffers from a total of 10% whole body
      impairment. He assigned 7% to the lumbar spine and 3% to
      chronic trochanteric bursitis. After a comprehensive review of the
      medical evidence in this case, I find [Brown] suffered an injury that
      resulted in 3% impairment due to chronic trochanteric bursitis -
      but I do not find she has permanent impairment as it relates to the
      lumbar spine. For this opinion I rely on Dr. Corbett and Dr.
      McEldowney's opinion(s) as well as the medical records of Dr.
      Morris and Dr. James. I found the diagnostic testing did not
      support [Brown's] position that she has permanent lumbar spine


                                          3
      impairment. The result of these findings and applying the 3%
      impairment rating to the AMA grid,factor per KRS 342.730, is that
      [Brown] retains 1.95% Permanent Disability Rating.

The ALJ awarded Brown total temporary disability and permanent partial

disability benefits enhanced by the three multiplier because she found that

Brown could not return to work as a CNA. The ALJ also awarded Brown

medical benefits as may be required for the cure and relief of her left hip

condition. The opinion and award was silent as to whether Brown was entitled

to medical benefits for her low back strain.

      Brown filed a petition for reconsideration arguing that the A1_,J erred by

relying on Dr. Morris's opinion to find that she suffered a low back strain, but

then adopting Dr. Corbett's assigned permanent impairment rating of 0%

because he did not believe she suffered a low back injury. Brown contended

that the ALJ could not rely on both doctors' opinions regarding the low back

injury because they reached opposite conclusions on its existence. The ALI

denied the petition for reconsideration, emphasizing that she had the authority

to accept some and disregard other portions of an expert witness's testimony

when fact finding.

      The Board affirmed the ALJ's findings regarding the impairment rating

for the low back injury. However, the Board sua sponte vacated in part and

remanded the matter for the ALJ to make a finding on whether Brown is

entitled to medical benefits for the low back injury. The Court of Appeals

affirmed and this appeal followed.




                                         4
      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,

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

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.

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

ALJ has the sole authority to judge all reasonable inferences to be drawn from

the evidence. Miller v. East Kentucky Beverage/ Pepsico, Inc., 951 S.W.2d 329

(Ky. 1997). The ALJ may reject any testimony and believe or disbelieve various

parts of the evidence, regardless of whether it comes from the same witness or

same adversary party's total proof.   Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky.

2000).

         Brown argues that the ALJ erred by relying on Dr. Corbett's opinion

regarding the impairment rating assigned to her lumbar spine because he

believed that she did not have a work-related low back injury. Brown argues

that it is contradictory and illogical for the AU to find she sustained a work-

related low back strain, but then adopt the impairment rating assigned by a



                                          5
doctor who did not believe that injury occurred. However, as previously stated,

the ALJ has the discretion to choose what parts of the evidence she believes.

Here the ALJ believed that Brown did suffer a low back strain based on Dr.

Morris's opinion, but did not suffer permanent damage to her spine. Thus, the

ALJ found that Dr. Corbett's assigned impairment rating properly reflected the

permanent condition of Brown's lumbar spine. She found Corbett's opinion

persUasive due to the medical records of Dr. Morris and Dr. James. The ALJ

also noted that diagnostic testing did not indicate there was a permanent

impairment to Brown's spine. The ALJ's findings are supported by substantial

evidence and shall not be disturbed on appeal.

      We note that Brown cites to the unpublished case of Taubensee Steel &

Wire Co. v. Saum, 2012-CA-002077-WC (Ky. App. 2013), to support her

argument that the ALJ could not rely on Dr. Corbett's impairment rating. In

that case, the ALJ found that the claimant was entitled to permanent partial

disability for post traumatic stress disorder ("PTSD"). However the Court of

Appeals reversed because there was insufficient evidence that the PTSD

constituted a permanent impairment. The ALJ based his decision that

claimant had reached MMI on only one doctor's opinion who did not believe the

claimant suffered from the alleged psychological injury and opined that any

bonafide psychiatric symptoms the claimant had could improve with treatment.

In the present matter, the ALJ reviewed all of the evidence and found, based on

prior medical records and Dr. Corbett's opinion that the 0% permanent

impairment rating was the most appropriate to assign Brown for her lumbar



                                        6
spine. The AI.,J rejected Dr. McEldowney's finding of a permanent impairment

rating based on the record and this was within her discretion.   Saum, as an

unpublished Court of Appeals opinion, is not persuasive and does not dictate a

different result be reached in this matter.

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

      All sitting. All concur.




COUNSEL FOR APPELLANT,
JOHNNIE BROWN:

James Delano Howes


COUNSEL FOR APPELLEE,
THE WILLOWS AT HAMBURG:

Aziza Hanna Ashy




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