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§§upreme Tn-urf of Benfnckg

2016-SC-000072-WC
RIVER VIEW COAL, LLC . APPELLANT

ON APPEAL FROM COURT OF APPEALS
CASE NO. 2015-CA-00082 1-WC
V. WORKERS’ COMPENSATION BOARD
NO. `13-WC-92232

ANGELA WHITLOCK; APPELLEES
HON. WILLIAM J. RUDLOFF,

ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) found Angela Whitlock to be
permanently totally disabled as a result of work-related physical injuries. The
Workers’ Compensation Board (the Board) and the Court of Appeals affirmed
the ALJ’s finding of permanent total disability. River View Coal, LLC (River
View) argues on appeal to this Court that the ALJ’s finding of total disability
was not supported by substantial evidence. Whitlock argues that this matter is
not final and appealable because the Board vacated the ALJ’s award of
temporary total disability and medical expense benefits and remanded for
additional findings on those issues and for findings on an alleged psychological
claim. For the following reasons, we hold that the ALJ’s opinion is final and

appealable, and we affirm the Court of Appeals.

I. BACKGROUND.

Whitlock completed the 8th grade, earned her GED, and received
certification as an early childhood education instructional aide. She has
worked as an instructional aide with Head Start and in several Kentucky
county school systems and as an underground coal miner for River View.

While employed at River View, Whitlock suffered injuries to her left leg
(February 3, 2012); to her nose (May 9, 2012 and December 18, 2012); to her
right hip and leg (May 18, 2012); and to her low back (March 4, 2013). On
April 3, 2014, Whitlock filed an Application for Resolution of Injury Claim
alleging that she suffered the preceding physical injuries as well as a work-
related psychological injury. River View timely filed a Notice of Claim Denial
and the parties proceeded to take proof, Which we summarize below. l
A. _Whitlock’s testimony.

Whitlock testified that her jobs as an instructional aide required her to
assist teachers with instruction, to lift children, and to clean classrooms. Her
job for River View as a “pinner” required her to work underground lifting and
maneuvering heavy items while often working in a bent, stooped, or kneeling
position.

Whitlock testified that she had not missed any significant amount of
work as a result of her 2012 injuries. However, after her March 4, 2013 low-
back injury, Whitlock missed approximately two months of work, returning to
work in a different job category and working until July 1 1, 2013. After last

Working for River View, Whitlock collected short-term disability and

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unemployment benefits. When her short-term disability benefits stopped,
Whitlock began Working part-time as a cook, waitress, and cashier at her
sister’s restaurant. According to Whitlock, she had no set schedule but worked
approximately 10 to 15 hours per week. In lieu of paying Whitlock any wages,
the sister helped pay Whitlock’s bills. Whitlock admitted that she continued to
receive unemployment benefits while working at the restaurant and that she
had not reported this work activity to the Unemployment Compensation
Commission.

In terms of her physical condition, Whitlock testified that she had
continuous low-back pain with radiation of pain into both legs and occasional
bilateral leg numbness /tingling.1 According to Whitlock, her low back and
lower extremity symptoms disrupt her sleep and increase with activity, which
makes it difficult for her to maintain her house and yard. Based on her
physical limitations, Whitlock does not believe that she could return to work as
a coal miner or to any of her other pre-injury jobs. She also testified that she
could not perform restaurant work on any regular or sustained basis.

B. Medical proof.
Whitlock filed medical records from her treating physicians - Drs.

Wallace, Canlas, and Oropilla - and an independent medical evaluation report

 

1 We note that Whitlock also complained of right shoulder and arm pain.
However, she did not allege a specific injury to her shoulder or arm and the ALJ did
not base his opinion on Whitlock’s shoulder and arm complaints. Therefore, we do not
consider those complaints in this opinion.

from Dr. Charles Barlow.2 Dr. Wallace, Whitlock’s family physician, treated
Whitlock following the back injury, noted improvement in Whitlock’s
symptoms, and released Whitlock to return to work on April 25, 2013.
However, Whitlock continued to complain of back pain, and Dr. Wallace
referred her to Dr. Canlas, a physical medicine and rehabilitation specialist, on
June 3, 2013. It appears that Dr. Canlas performed a series of trigger point
and SI joint injections and, when Whitlock failed to improve, Dr. Canlas
referred her to Dr. Oropilla,' a pain management physician. Dr. Oropilla
performed several steroid injections, which provided only temporary relief of
Whitlock’s symptoms. None of these physicians specifically addressed whether
Whitlock has any permanent impairment rating or permanent restrictions.

Dr. Barlow examined Whitlock on June 11, 2014. Whitlock complained
to Dr. Barlow of low-back pain With radiation into both legs, right worse than
left. Dr. Barlow’s examination revealed full range of motion, no loss of
sensation, no reflex deficits, and complaints of pain with straight leg raising.
Dr. Barlow reviewed Whitlock’s medical records and noted MRI findings of
bulging discs at L2-3 and L3-4 with an annular tear and nominal protrusion at
L4-5 but no nerve root compression. Based on his examination and review of
the medical records, Dr. Barlow made pertinent diagnoses of right hip pain,
degenerative lumbar disc disease with a bulging disc, and bilateral

radiculopathy. He assigned Whitlock a 6% impairment rating for her low-back

 

2 Whitlock also filed reports from physicians who treated her for her 2012
injuries. However, because the ALJ did not factor those injuries into his disability
award, we do not summarize them herein. .

injury and stated that she should avoid: bending and twisting at the waist;
lifting more than 40 pounds; and pushing/ pulling more than 60 pounds. Dr.
Barlow did not assign Whitlock any impairment rating or impose any
restrictions for her other injuries.

River View filed a letter dated December 10, 2013, from Dr. Canlas,
stating that Whitlock did not “meet the criteria for disability” and that she
should be able to “pursue some form of part-time or full-time employment.”
River View also filed the independent medical report of Dr. Thomas Huhn.
Whitlock complained to Dr. Huhn of low-back pain with radiation into both
legs and occasional leg numbness. Whitlock reported that her symptoms were
aggravated by movement and lifting and relieved by use of a TENS unit and
heat. Dr. Huhn’s examination revealed tenderness to palpation in the low back
but normal muscle tone, strength, and sensation in the back and lower
extremities. Based on his examination and review of Whitlock’s medical
records, Dr. Huhn made a diagnosis of bulging lumbar discs with no nerve root
impingement, and he assigned Whitlock no impairment rating and imposed no
restrictions for any of her other injuries.

b We note that River View also filed an independent psychological
evaluation report from Dr. Ruth. However, the ALJ did ‘not address Whitlock’s
psychological claim, and the Board remanded this matter to the ALJ with
instructions to do so. Therefore, we do not further address Whitlock’s alleged

psychological injury,

The ALJ rendered an opinion in which he summarized Whitlock’s
testimony and records/ reports from Drs. Barlow, Canlas, Ruth, and Huhn.
Based on his review, the ALJ stated that he found Dr. Barlow to be the most
“persuasive and compelling,” and that Whitlock has a 6% impairment rating.
The ALJ also found Whitlock’s testimony regarding her pain, her limitations,
and her inability to return to any of her past work to be “credible and
convincing.” Based on that testimony and Dr. Barlow’s report, the ALJ found
that Whitlock is permanently totally disabled.

River View filed a petition for reconsideration asking the ALJ to make
additional findings, noting that the ALJ had not mentioned evidence favorable
to its position. Although the ALJ believed that River View was impermissibly
re-arguing the merits in its petition, he issued a second opinion and order. In
that opinion and order, the ALJ reiterated much of his original opinion and
order and reached the same conclusion.

River View appealed to the Board, which affirmed the ALJ’s finding of
permanent total disability. However, the Board found that the ALJ’s award of
medical benefits was not sufficiently specific. The Board also noted that,
without any explanation, the ALJ awarded temporary total disability benefits
for a period after Whitlock had returned to work for River View. Finally, the
Board noted that the ALJ had not addressed Whitlock’s psychological injury
claim. Therefore, the Board remanded those portions of Whitlock’s claim to the

ALJ for additional findings of fact and conclusions of law. River View sought

review by the -Court of Appeals, which affirmed. We set forth additional
background information as necessary below.
II. STANDARD OF REVIEW.

“Whether the Board’s opinion is final and appealable is a question of law,
and we review questions of law de novo.” Hampton v. Flav-O-Rich Dairies, 489
S.W.3d 230, 232 (Ky. 2016), reh'g denied (June 16, 2016). However, as to the
substance of the ALJ’s opinion, if the party with the burden of proof is
successful before the ALJ, the question on appeal is whether that opinion is
supported by substantial evidence. Whittaker v. Rowland, 998 S.W.2d 479,

- 481 (Ky. 1999). “Substantial evidence has been defined as some evidence of
substance and relevant consequence, having the fitness to induce conviction'in
the minds of reasonable men.” Id. at 481-82.

III. ANALYSIS.
A. Finality.

Whitlock argues, albeit summarily, that the Board’s opinion is not final
because it vacated and remanded, in part, this matter to the ALJ for additional
findings As we recently held, when the Board fully vacates and remands, the
Board’s opinion is final and appealable, Hampton, 489 S.W.3d at 234. This is
so because vacating and remanding either deprives a party of a vested right or
authorizes or directs the ALJ to reach a different conclusion. Id. We see no
difference when the Board only partially vacates and remands. Here, the Board
vacated, in part, Whitlock’s entitlement to temporary total disability and

medical expense benefits, thereby divesting her of her right to those benefits.

7

Furthermore, the board authorized the ALJ to reach a different conclusion
regarding Whitlock’s entitlement to those benefits. Thus, the Board’s opinion
was final and appealable,

B. Finding of permanent total disability.

The ALJ, as fact finder, has the sole authority to judge 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). In
drawing those inferences and reaching a decision, the ALJ is free to choose to
believe or disbelieve parts of the evidence from the total proof, no matter Which
party offered it. Brockway v. Rockwell Intemational, 907 S.W.2d 166, 169 (Ky.
App. 1995). While “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.” Ira A. Watson Dept. Sto_re v. Hamilton, 34 S.W.3d
48, 52 (Ky. 2000). Thus, a party seeking to reverse an ALJ’s finding in favor of
an injured employee must establish that the decision Was “so unreasonable
under the evidence that it must be viewed as erroneous as a matter of law.” Id.
We analyze River View’s argument that the ALJ’s finding of permanent total
disability is not supported by substantial evidence with the preceding
standards in mind.

KRS 342.0011(11)(0) defines permanent total disability as “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 . . . .” Work is defined as “providing services to another in return

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for remuneration on a regular and sustained basis in a competitive economy.”
KRS 342.0011(34). To determine if an employee meets the preceding criteria,
an ~ALJ must make

an individualized determination of What the worker is and is not

able to do after recovering from the work injury . . . . [That

determination] necessarily includes a consideration of factors such

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

vocational status and how those factors interact. It also includes a

consideration of the likelihood that the particular worker would be

able to find work consistently under normal employment

conditions. A worker's ability to do so is affected by factors such

as whether the individual will be able to work dependably and

whether the worker's physical restrictions will interfere with

vocational capabilities
Hamilton, 34 S.W.3d at 51. In assessing an employee’s ability to perform work,
the ALJ “must necessarily consider the [employee’s] medical condition” but is
not required to rely on the opinions of the medical experts. Id. at 52. The ALJ
may also consider the employee’s testimony Which “is competent evidence of
[her] physical condition and of [her] ability to perform various activities both
before and after being injured.” Id.

The ALJ found that Whitlock suffered a work-related injury and, relying
on Dr. Barlow’s opinion, that she has a 6% permanent impairment rating. The
ALJ took that impairment rating into consideration along with Whitlock’s age,
education, work history, the restrictions imposed by Dr. Barlow, and Whitlock’s
self-imposed restrictions and concluded that she is unable to perform any work
on a sustained basis. That is all he was required to do and, although we might

have reached a different conclusion, we cannot say that the ALJ’s conclusion

was erroneous as a matter of law.

Although the preceding disposes of this appeal, for the sake of
completeness we next address each of River View’s specific arguments First,
River View argues that Whitlock’s employment at her sister’s restaurant
indicates that she Was able to perform work as defined by the statute and
negates any entitlement to a total disability award. If Whitlock had been
performing that work on a regular and sustained basis, River View would have
a point. However, Whitlock testified that: she had no regular schedule and
only worked when she needed help paying a bill or When her sister needed
help; she could leave work whenever she felt the need; she only worked a few
hours on the days she worked; and she could not perform that work on a full-
time or regular basis The ALJ, as he was entitled to do, believed Whitlock and
found that she could not perform any work, as defined by the statute, which
included the restaurant job. Furthermore, we note that “a worker is not
required to be homebound in order to be found to be totally occupationally
disabled.” Id. at 51. Thus, the fact that Whitlock may have performed less
than regular work at her sister’s restaurant in exchange for help paying her
bills does not, as a matter of law, negate Whitlock’s entitlement to a permanent
total disability award,

Second, River-View argues that the ALJ erred as a matter of law because
Whitlock was 40 years of age at the time of the low-back injury and has
certification as an instructional aide, which would enable her to perform work
as defined by the Act. Certainly, the ALJ could have taken those factors into

consideration and come to that conclusion. However, he was not compelled to

10

do so. We note that the totally disabled claimant in Hamilton was 39 years of
age and had a high school education, Id. at 50, as was the totally disabled
claimant in McNutt Construction/F‘irst General Services v. Scott, 40 S.W.3d 854,
856 (Ky. 2001). Thus, while age and education are significant factors that an
ALJ must consider they are not dispositive, and this argument is not
persuasive.

Third, River View argues that Whitlock’s “medical restrictions” do not
prevent her from performing her past work, As the ALJ noted, Dr. Barlow
restricted Whitlock from-bending and twisting, lifting more than 40 pounds,
and pushing/ pulling more than 60 pounds Whitlock testified that her job as a
coal miner required her to lift heavy items and to work at times in a bent,
stooped, or kneeling position. Dr. Barlow’s restrictions would have prevented
her from performing this type of work. As to her work as an instructional aide,
Whitlock testified that she assisted classroom teachers, which required her to
lift children and clean classrooms Dr. Barlow’s restrictions against bending,
twisting, and lifting more than 40 pounds would preclude this type of work,
Arguably, Dr. Barlow’s restrictions might not have precluded Whitlock from
performing restaurant work; however, as noted above, the ALJ was not
required to rely solely on the medical restrictions He was permitted to rely on
Whitlock’sl testimony, which he did. Thus, this argument is not persuasive

Fourth, River View argues that the ALJ’s opinion is erroneous because
even Whitlock did not believe she was totally disabled. As evidence of this,

River View notes Whitlock’s testimony that she had applied for a number of

11

jobs, some of which arguably would require exertion beyond her restrictions
This argument ignores three important facts First, it is the ALJ’s belief
regarding the extent of disability that controls, not the claimant’s. Second,
although she admitted applying for those jobs, Whitlock testified that she did
not believe she could actually perform them. Third, Whitlock admitted that she
had neither the training nor experience to perform several of the jobs for Which
she applied. Thus, this argument is not persuasive.

Finally, River View argues that the Court of Appeals ignored the “fact”
that Whitlock left her job in July 2013 and did not return because of alleged
sexual harassment, not because of her injury, As River View notes, there is
evidence in the record that Whitlock had been sexually harassed during the
time between her back injury and her last day of work. Furthermore, there is
evidence in the record that Whitlock suffered depression and anxiety because
of the alleged sexual harassment, and she admitted the sexual harassment was
part of the reason she did want to continue working at River View. However,
Whitlock also testified that the primary reason she did not continue working at
River View was because “I hurt'every day . . . . My whole life has changed. I go
to bed at night in pain. I sleep on a heating pad and a stupid, big, old wedge
pillow and everything else. I don’t ever sleep comfortable.” The ALJ could have
chosen to believe that Whitlock left work at River View and did not return
because of the sexual harassment; however, he would have had to ignore
Whitlock’s primary reason for doing so to make the choice. As noted above, an

ALJ is free to pick and choose what evidence to believe and nothing would have

12

compelled him to pick Whitlock’s secondary reason for leaving and not
returning rather than her primary one. Thus, the Court of Appeals did not err
by failing to recognize that the record contained evidence that Whitlock stopped
working at River View and did not return to Work there for non-injury-related
reasons
IV. CONCLUSION.
For the foregoing reasons, We affirm the Court of Appeals.
All sitting. Minton, C.J., Cunningham, Hughes, Keller, Venters and

Wright, JJ., concur. VanMeter, J., dissents without opinion,

COUNSEL FOR APPELLANT:
Brandy Hassman
COUNSEL FOR APPELLEE:

Lucius P. Hawes, Jr.

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