          IMPORTANT NOTICE
    NOT ·To BE PUBLISHED OPINION
                                   '   I




  THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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                                                 RENDERED: DECEMBER 13, 2017
                                                       . NOT TO BE PUBLISHED

                 jupmn~ ~Inurf                  nf ~tnfutk\!
                                 2017-SC-000237-WC



  ROBIN D. WILSQN                                                          APPELLANT.


                    ON APPEAL FROM COURT OF APPEALS
  v.                     CASE NO. 2015-CA-000477
                  WORKERS' COMPENSATION NO. 11-WC-67145


  DERBY CITY SIGN & ELECTRIC, INC.;                                        APPELLEES
  HONORABLE JANE RICE WILLIAMS,
  ADMINISTRATIVE LAW JUDGE; AND
  WORKERS' COMPENSATION BOARD



                    MEMORANDUM OPINION OF THE COURT

                                     REVERSING


        Appellant, Robin Wilson, appeals from a ruling of the Court of Appeals 1

  that reversed the decision of the Administrative Law Judge (AW) and the

  Workers' Compensation Board (Board) awarding workers' compensation

  benefits and medical expenses to Appellant as a result of a work-related

. ' accident that injured his left ankle. Upon review, we reverse the Court of

 Appeals and reinstate the Opinion of the Board.



        I Although Judge Acree wrote the opinion expressing his rationale for reversing
 the Board, neither of the other judges on the panel joined. Judge Taylor concurred
 only in the result without a separate opinion; Judge D. Lambert dissented without an
 opinion.
                  I. FACTUAL AND PROCEDURAL BACKGROUND
       Wilson worked for Derby City Sign & Electric, Inc. installing and

 servicing commercial signs. His job required heavy lifting and climbing

 extension ladders to work on the sigD.s. In August 2011,. Wilson had been

 experiencing pain in his left foot, but there is no indication that his· ability to
         /



 work was affected by this condition. He was examined by Dr. William Brown

 who diagnosed the problem as plantar fasciitis, a bone spur on the side of his

 foot, and heel pain syndrome.

       Dr. Brown recommended surgery to remove the bone spur, but Wilson

 declined. because the condition was troubling only when he shifted gears on his

 motorcycle. Dr. Brown
                   .   advised Wilson
                                   . to return for follow-up treatment in

 three weeks, but Wilson did not do so. Oddly, in the notes recorded for this
              .                                   .
visit, Dr. Brown erroneously refers to Wilson as a female. Following this

. examination, Wilson continued to work without restrictions.

       Three months later, on November 14, 2011, Wilson descended a ladder

while working on a sign. As he stepped off the ladder, his left foot landed on a

root and his ankle "rolled" or, as the AW described it, "twisted." Wilson felt a

sharp pain that he described as "totally different" from the previous pain in his

foot. At least momentarily, he was unable to walk. He crawled to his truck

and after waiting a few minutes, he was able to retrieve tools, load his

equipment, and return to the shop where he reported the incident to his

supervisor. The AW noted that surveillance video from the shop's security




                                          2
cameras, "though mostly inconclusive, appears to show Wilson having difficulty

walking, if anything.~

      Three days later, on November 17, 2011, Wilson went to Dr. Brown's

clinic for treatment. He was examined there by Dr. Christopher Hubbard. Dr.

Hubbard ordered an MRI of Wilson's left foot and ankle. As a result of this

examination, Dr. Hubbard diagnosed Wilson's injury as a peroneus longus

tendon tear in the left   ankl~   requiring a surgical repair. On January·.25, 2012,

he performed the surgery needed to repair the tendon. Significantly, Dr.

Brown's examination in August did not disclose the existenc!i of a torn tendon,

·and there was no evidence that he anticipated the developm_ent of a torn

tendon.

      Dr. Hubbard's original notes from the November 17 examination of

Wilson became a source of controversy because they are strikingly similar to

the notes made by Dr. Brown the preceding August. For example, both sets of

notes record: "Condition.has existed for one month." Both sets state: "Onset

was gradual." Both sets state: "Patient indicates irritation from direct pre·ssure

and prolonged walking and standing aggravate the condition." Both say:

"Severity of condition is progressively worsening." Dr. Hubbard's notes repeat

the statement found'-in Dr. Brown's notes: "Patient denies a previous history of

trauma. The patient has had no previous treatment for this condition." Most

telling, however, is the fact that Dr. Hubbard's notes also repeat Dr. Brown's

clearly erroneous references to Wilson as a "female patient," referring to him

throughout as "she."

                                           3
      The anomaly of Dr. Hubbard's original notes gives rise to Derby City's

argument that Wilson's tom ankle tendon was not the result of the November

occurrence, 1stepping off the ladder, but· was instead "a worsening continuum of

pain that began in July 2011," one month before the August diagnosis of

plantar fasciitis, bone spur, and heel pain syndrome. The anomaly also cast

doubt in the mind of the AW about the      ~ccuracy   of the November 17 notes.

She concluded that "the initial record from   Dr~   Hubbard is not found to be

conclusive" on the issue of what caused the torn tendon. (Emphasis added.)

      Derby City points out that Dr. Hubbard's original notes make no

reference to Wilson's claim of a workplace injury due to stepping off a ladder

three days prior; however, in February 2012, and:well before this action

commenced, Dr. Hubbard amended his original notes to reflect that Wilson did,

in fact, report the ladder incident during the November 2011 examination.

      Wilson's reparative surgery in January 2012 was followed by a six-week

course of physical therapy.. Dr. Hubbard released Wilson to return to work

without restrictions on June 14, 2012. Wilson's private health insurance paid

the medical expenses associated with his treatment up until his return to work

and Wilson directly paid other necessary out-of-pocket costs of his medical

treatment.

      Soon after returning to work at Derby City, Wilson was laid off. He found

another job at Glass Sign Company, where he     wor~ed    without any medical

restrictions for about five months. He next worked at Louisville Signs without



                                       4
                                                                                   i
medical restrictions for about three months before taking a job with another

sign company doing the same kind of work but with less lifting and climbing.

      After he returned to work following surgery, Wilson continued to have

pain and swelling in his left foot which worsened when he was more active.

Specifically, the   activ~ties   associated with his work-crouching, climbing

ladders, and lifting heavy materials-·became more difficult and more

uncomfortable. On October 18, 2013,          ~enty-three   months after the incident

involving the ladder, Wilson filed a workers' compensation claim asserting that
                                                                         '
he had suffered a work-related injury to his "left foot/ankle" on November 14,

2011. Derby City denied Wilson's claim.

      After considering the evidence, which included testimony and reports

from several medical witnesses, and deciphering the inconsistencies of Dr.

Hubbard's
   '
          original notes from November 17, 2011,
                                             .
                                                 the AW .made the following
                                                                       .

findings with respect to the issue of medical causation of Wilson's torn tendon:

      Wilson is a believable witness. He had seen Dr. Brown, Dr.
      Hubbard's partner, for a foot condition prior to the work injury but
      worked unrestricted with no significant complaints until he twisted
      the ankle on November 14, 2011. The surveillance video, though
      mostly inconclusive, appears to show Wilson having difficulty
      walking, if anything. The initial treatment record from Dr.
      Hubbard on [November] 17, 2011 notes a gradual onset but also
      refers to Wilsori as a female all through the record. For this
      reason, the initial record from Dr. Hubbard is not found to be
      conclusive on· this issue.



     Additionally, Dr. Hubbard's later office notes state the condition is
     work related. Dr. Loeb's report has been reviewed but his -opinion
     on the causation is not adopted herein. The opinion of Dr. Farrage
     on work-relatedness/ causation is not found to be any more helpful
     than that of Dr. Loeb on the issue. It is the review of the records of
                                            5
               Dr. Hubbard along with the testimony of Wilson which have been
               persuasive on the issue of causation.   ·

         (Emphasis added.) The ALJ plainly considered the conflicting medical opinions

         on whether Wilson's torn tendon and its surgical repair resulted (rom a
I


    ,
        workplace injury of .November 14,
                                       .  2011, or instead, was the worsening

        manifestation of the preexisting foot pain he had in August. In the final

        analysis, the-ALJ agreed with Wilson and awarded benefit~ accordingly.

               Derby City petitioned. for a reconsideration of that opinion, arguing that

        the ALJ's findings on causation were not supported by substantial evidence.

        The petition· was denied. Derby City next sought review by the Board, further

        arguing that the record lacked substantial medical evidence to support

        Wilson's claim that the work-related ladder incident caused the torn ankle
                      ~




        tendon. The Board concluded "[i]n this instance, it was not so unreasonable

        for the AW to infer from the totality of the circumstances evidenced by the lay

        and medical testimony that Wilson's left ankle condition was caused by his
                                              /


        work accident."

              Derby City theh appealed to the Court of Appeals. The Court of Appeals

        reversed the Board's decision in a plurality opinion lacking a single rationale

    . supported by a majority of the appellate paneL Wilson appealed the case to

        this Court.

                                     II. STANDARD OF REVIEW

              "An award or order.of th~ administrative law judge ... shall be

        _conclusive and binding as to all questions of _fact ...."   ~S   342.285(1).


                                                  6
 Accordingly, as the statutorily-assigned fact-finder, the AW "has the sole

 authority to determine the quality, character, and substance of the evidence."

 Square D Company v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citation omitt.ed).

 Similarly, the "AW, as fact-finder, has the sole authority to judge the weight

· and inferences to be drawn from the record." Miller v. East Kentucky

Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997) (citation omitted). The

AW "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

adversary party's.total proof." Magic Coal Company v. Fox, 19 S.W.3d 88, 96

(~y.   2000) (citing Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, _16 (Ky.

1977)); Halls Hardwood Floor Company v. Stapleto'!-, 16 S.W.3d 327, 329-(Ky.

App. 2000). Mere evidence contrary to the AW's decision is not adequate to

require reversal on appeal. Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky.

1999) (citation omitted).

        A decision of the Workers' Compensation Board shall be reversed on

appeal only when "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." Western Baptist Hospital v. Kelly, 827

S.W.2d 685, 687-88 (Ky. 1992).


                                      III. ANALYSIS
        Wilson argues that the Court of Appeals erred in reversing the Board

because substantial evidence in the record supports the AW's conclusion that



                                         7
the torn tendon in· his left ankle resulted from his work-related misstep .from

the ladder in November 2011. ·For the reasons explained below, ,we agree.

        The AW declared Wilson to be a credible witness and she believed his

testimony that he. twisted his left ankle stepping off a ladder at work and felt

pain in his left "foot/ ankle" area that was "totally different" from the previous

discomfort diagnosed earlier by Dr. Brown. Findings of the AW supported by

substantial evidence are conclusive upon our review. KRS 342.285.

        Derby City does not challenge the finding that Wilson twisted, or rolled,

his ankle upon stepping off the ladder while at work. Derby City argues that

the medical evidence did not support the AW's finding that the ladder incident

caused the torn tendon. Derby City contends that the torn tendon was a·

manifestation of the preexisting foot conditions of plantar fasciitis, a bone spur

and heel pain syndrome, for which Dr. Brown recommended surgery to remove

the bone spur.

        Evidence in the record, however, established that: (1) in August 2011,
            .      '


Wilson was diagnosed by Dr. Brown as having plantar fasciitis, a bone spur,

and heel pain syndrome afflicting his left foot; (2) on November 14, 2011,

Wilson twisted his left ankle stepping onto the ground from a ladder at work;

(3) as reflected in Dr. Hubbard's amended notes, three days later Wilson told

Dr. Hubbard about the workplace ankle injury; (4) Dr. Hubbard diagnosed

Wilson's condition after the ladder incident as a torn tendon in his left ankle, a

condition not observed or diagnosed by Dr. Brown when he saw Wilson the

previous August; (5) the surgical intervention confirmed Dr. Hubbard's
   \
    '
                                         8
diagnosis of a left peroneus longus tendon tear; (6) ·Dr. Hubbard opined within

a reasonable degree of medical probability the ladder incident of November

2011 "could" have caused. the torn tendon, and he further affirnied that such

injury is frequently caused by an accidental twisting for rolling of the foot

similar to the event experienced by Wilson; however, Dr. Hubbard also opined

that the torn tendon "could" have been the "natural progression" of the

preexisting symptoms Wilson experienced in August 2011, anc:i that was what
                                         t
Dr. Hubbard "felt" he was dealing with at the November 17 examination.

      As the claimant, Wilson had the burden of proof as to .every element of

his workers' compensation claim, including causation. Magic Coal Company,

19 S.W.3d at 96 (citations omitted). Medical causation must "be proved to a

reasonable med_ical probability with expert medical testimony." Brown-Forman

Corp. v. Upchurch, 127 S.W.3d 615, 621 (Ky. 2004). Moreover, in assessing

medical probability, "it is the quality and substance of a: physician's testimony,

not the use of particular 'magic words,' that determines whether it rises to the
          .                                                          .
level of reasonable medical probability, i.e., to the level necessary to prove a

particular medical fact." Id. (citation omitted) .. "[W]here medical testimony is

concerned, and that testimony is conflicting ... the question of who to believe

is one exclusively for the [AW]." Pruitt v. Bugg Brothers, 547 S.W.2d 123, 124.

(Ky. 1977); accord Brown-Forman Corp., 127 S.W.3d. at 621. "Although a party

may n_ote evidence which would have supported a conclusion contrary to the

AW's decision, such evidence is not an adequate basis for reversal on appeal."



                                         9
 Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000)

 (citation omitted).

       The obvious import of the medical evidence as construed by the ALJ is

 that a torn tendon is the kind of injury that can, and frequently does, result

 when someone twists (or "rolls") his ankle in circumstances that include

 stepping   off~   ladder. It logically follows that the torn tendon could reasonably

 have been determined to be a malady not caused by or associated with the

 plantar fasciitis, bone spur, and heel pain syndrome diagnosed in August.

· Based upon this combination of evidence, we .conclude that there was

 substantial evidence in the record to support the ALJ's finding of causation - a

 peroneus longus tendon tear is a normal and medically foreseeably

 consequence of the event that Wilson experienced.

       Wilson satisfied his burden of proof of establishing that the workplace

 incident caused his injury. In going forward with the evidence to establish a

 different cause, it becomes the burden of the employer to show that the injury·

is the product of a preexisting condition or other non-work-related injury.

 Comair, Inc. v. Helton, 270 S.W.3d 909, 914 (Ky. App. 2008) (citing Finley v.

DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007)). And while there is

no reason to doubt that Wilson had the preexisting conditions of plantar

fasciitis, a bone spur, and heel pain. syndrome condition, the evidence clearly

established that those conditions, if they existed, were not actively impairing or

impeding Wilson's ability to work immediately before the ladder incident. The

preexisting condition relied upon by Derby City was not symptomatic in· that it

                                           10
was having no disabling effect on Wilson's ability to perform his work
                    .                                               . prior to

November 20} 1. The evidence accordingly does not compel the conclusion that

the torn tendon existed before the ladder incident.

      When the party having the burden of proof on an issue fails to _convince

the AW, the AW's decision will withstand appellate review unless that party

demonstrates to the appellate court that the evidence in its favor was so

overwhelming as to compel a different finding. Special Fund v. Francis, 708

S.W.2d 641, 643 (Ky. 1986). Derby City failed to persuade the AW that
-                       '



Wilson's torn ankle was the result of, or a progressive manifestation of, his

preexisting foot condition. To reverse· that decision, Derby City must show that

its evidence was so overwhelming as to compel a finding in its favor. Id.

      We are not persuaded that the evidence in Derby City's favor compelled a

finding in its favor so as to overturn the AW's opinion and the Court of Appeals

erred in concluding otherwise. True enough, Dr. Hubbard tepidly opined that

Wilson's preexisting ailments could have caused the torn tendon, but by the

same measure, he also opined that Wilson's misstep from the ladder and the

twisting, or "rolling," of his ankle could have caused the torn tendon, and both

opinions are expressed as within a reasonable degree of medical.probability.

      The AW is assigned the responsibility of resolving the conflicting

evidence based upon the totality of the evidence. See Square D Company, 862

S.W.2d at 309 ("Where, as here, the medical evidence is conflicting, the

question of which evidence to believe is the exclusive province ofthe AW."). In

light of Dr. Hubbard's equivocal testimony and all of the remaining evidence,

                                       11
including Wilson's credible description of his injury and the undisputed fact

that he had a tom tendon in his left ankle aft~r experiencing a painful tum of
                              (              I   .           .
his foot stepping off_ a ladder, the AW haq sufficient basis to resolve the issue

in Wilson's favor.

      Derby City rejects the foregoing analysis because "the ·board is not

justified in disregarding the medical evidence . . . where the causal relationship ·

is not apparent to the layman .... " Mengel v. Hawaiian-Tropic Northwest and

Central DistributorS, Inc., 618 S.W.2d 184, 187 (Ky. App. 1981). And Derby

City contends that "the causal relationship in this case is not apparent to ·the

layman." First, we are satisfied that neither the AW nor the Board disregarded

the medical evidence. The record clearly discloses that the AW and the Board

considered all of the medical evidence. More importantly, a reasonable

layperson the least bit familiar with his own .limbs and life's experiences can

readily conceptualize how a twisted ankle can cause the kind of injury Wilson

experienced, though he may not describe the injury in anatomically accurate

nomen~lature.   Indeed, from a layperson's perspective, stepping off a ladder

onto uneven ground and twisting, or "rolling," the left ankle appears to be a

J:!luch more likely and plausible explanation for a tom tendon in the left arikle

than the preexist<?nt conditions of plantar fasciitis, a bone spur, and heel pain

syndrome in the left foot.




                                       .12
                                  IV. CONCLUSION

      For the foregoing reasons, the opinion of the Court of Appeals is

reversed, and the decision.of the AW awarding Wilson workers' compensation

benefits is reinstated.

      All sitting.. All concur.




COUNSEL FOR APPELLANT:

Joy Buchenberger
Jennings Law Offices

COUNSEL FOR APPELLEE DERBY CITY SIGN & ELECTRIC, INC.:

Douglas Anthony U'Sellis
U'Sellis Mayer & Associates

COUNSEL FOR APPELLEE HONORABLE JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE:

Jane Rice Williams
Rice, Hendrickson & Williams

COUNSEL FOR APPELLEE WORKERS' COMPENSATION BOARD:

Dwight Taylor Lovan.
Executive Director
Office of Workers' Claims




                                      13
