               IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TOJHE RULES OF CIVIL PROCEDURE
PROMULGATED BY TH!= SUPREME COURT, CR 76;28(4)(C),
THIS OPINION IS NOTrTO 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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,·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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
/




                                                         . RENDEREP: JUNE 15, 2017


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                                  2016-SC-000527-WC                ·

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    FLAT ROCK FURl)HTURE                                                   APPELLANT


                        ON APPEAL FROM COURT OF APPEALS
                           CASE NO. 2015-CA-001255-WC
    V.                   WORKERS' COMPENSATION BOARD
                                NO. ll-WC-70462


      STEVEN NEELEY;                                                       APPELLEES
    . HON. WILLIAM J. RUDLOFF,
      ADMINISTRATIVE LAW JUDGE;
      AND KENTUCKY WORKERS'
      COMPENSATION BOARD



                      MEMORANDUM OPINION OF THE COURT

                                      AFFIRMING

          In 2011, 52-year-old Steven N_eeley (Neeley), was working as a machine

    operator at Flat Rock Furn~ture (Flat Rock), in Jackson County, Kentucky. On

    October 10, 2011, Neeley was bending_a piece ofwocid when the wood slipped

    and hit him in the right eye causing injury. He provided .notice to his manager,

    Clarence Ward, and sought treatment from Dr. Sheila Sanders, an eye

    specialist at the University of Kentucky Hospital.

          Neeley filed his Form 101 Injury Claim Application on February 23,

    2013, wherein he described the October 10, 2011 incident that injured his

    right eye. After numerous.hearings, the Administrative Law Judge (AW)
considered depositions and live testimony, including multiple physicians who

treated Neeley after his injury. And although there were variations concerning

the severity of the injury, all of these physicians agreed that Neeley had

suffered a significant injury to his right eye. Also, both parties stipulated that

Neeley suffered a 17% whole person impairment rating. Based on this

evidence, the AW awarded Neeley temporary total disability (TID) benefits,

permanent total disability (PTD) benefits, and medical benefits.

      Flat Rock appealed several issues to the Workers' Compensation Board

(Board), which reversed and remanded the case. The Board specifically

instructed the AW to provide an adequate analysis of how he reached his

determination of PTD benefits. The Board also directed the AW to address

Neeley's alleged injury to his left eye.

      On remand, the AW revised his original order. but did not alter the type

and amount of compensation awarded: Flat Rock appealed the revised order to

the Board, which unanimously affirmed the AW. Flat Rock then appealed to

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

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

affirm the Court of Appeals.

                                Standard of Review

      In order to reverse, we must determine that the AW'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 Department Store v. Hamilton, 34

S.W.3d 48, 52 (Ky. 2000). This is clearly a difficult standard to satisfy.

                                           2
                                       Analysis

      Flat Rock raises three primary issues on appeal: 1) the AW relied on

records that were not in evidence; 2) the AW flagrantly misconstrued the

evidence and that there was no injury to Neeley's left eye; and 3) temporary

restrictions do not support a PTD finding. Each will be discussed in turn.

Erroneously Admitted Records

      Flat Rock specifically claims that the AW erroneously relied upon a

November 27, 2012 treatment record completed by Dr. Sanders and

accompanied by an attached handwritten note from Dr. Sanders that provided

as follows:

       Mr. Neeley is visually impaired in his right eye and has intractable
      ·diplopia with severe light sensitivity. Currently we have exhausted
       all possibilities of improving his symptoms. I believe it is unlikely
       that he can return to work ever unless he experiences spontaneous
       improvement.

Neeley appended these contested records to his Form 101. However; Neeley did

not append it to his Form 107-I, which is used for the specific admission of

medical evidence. Because of this omission, Flat Rock argues that the report

was improperly admitted.

      Flat Rock specifically contends that Neeley failed to satisfy the

requirements of 803 KAR 25:010. Section 8(4) of that regulation provides:

      (4) All medical reports filed with the application for resolution of a
      claim shall be admitted into evidence without further order subject
      to the limitations of KRS 342.033 if:

              (a) An objection is not filed prior to or with the filing of the
              notice of claim denial; and


                                           3
               (b) The medical reports comply with Section 10 of this
               administrative regulation.

Section 10 lists several methods by which a physician ·may authenticate their

reports. In support of its argument in favor of excluding Dr. Sanders' medical

report, Flat Rock cites the unpublished case of Puckett v. Neal's Delivery Sero.,

Inc., No. 2009-CA-001550-WC, 2010 WL 1041054, at *5 (Ky. ,l\.pp. Mar. 19,

2010).

         Puckett involved the AW's decision dismissing the claimant's workers'

compensation case due to failure to submit objective medical evidence. The

Court of Appeals affirmed the denial of the claimant's motion to reopen the

case and, in so holding, excluded a medical report that failed to comply with

the applicable provisions of 803 KAR 25:010 Section 10. Unlike Puckett,

however, the facts of the present case demonstrate that Neeley substantially

complied with the applicable regulations.

         First, Flat Rock failed to object to Dr. Sanders' report that was attached

to Neeley's Form 101. Second, the record demonstrates that Flat Rock is well
   I
aware of Dr. S~ders and her qualifications. In fact, Flat Rock submitted Dr.

Sanders' index number in a separate letter drafted and signed by Dr. Sanders

summarizing the November_27, 2012 examination. Third, the handwritten

portion of Dr. Sanders' report was legible. It is clear that the purpose of 803

KAR 25:010 has been satisfied here.

         Moreover, the report contested by Flat Rock is only one of numerous,

detailed medical reports considered by the AW in reaching his final .·


                                           4
determination. The AW also assigned great weight to Neeley's live testimony.

There is no reversible error.

      Lastly, !?lat Rock also takes issue with a medical record referenced by the

AW in his opinion as being dated January 20, 2013. The actual record to

which the AW was referring was dated June 20, 2013. This is clearly a clerical

error and, therefore, does not require reversal.

Misconstruing the Evidence

      Next, Flat Rock argues that the AW flagrantly misconstrued the

evidence. As previously noted, several physicians involved in this case

provided reports contesting the severity of Neeley's· injury and how that

impacted his ability to return to work. However, they all agreed that Neeley

had suffered a significant injury to his right eye. Both parties also stipulated ·

that Neeley suffered a 17% whole person impairment rating. Furthermore, it is

clear from the AW's opinion that he afforded great weight to Neeley's live

testimony at the final hearing in this case. As stated in his Amended Opinion

and Order on Remand, the AW specifically based his decision on the following

considerations:

      I took into consideration [Neeley's] sworn testimony that he has
      lost the vision in his right eye, has double and triple vision, is light
      sensitive in his left eye, does not drive a motor vehicle and cannot
      return to any employment. I took into consideration the fact that
      he graduated from high school many years ago and has absolutely
      no· specialized or vocational training. I reached the reasonable
      assumption and determination that if Mr. Neeley went out into the
      highly competitive job market, he will have an extremely difficult
      time in finding any regular gainful employment. Based upon all of
      the above factors, I make the determination that Mr. Neeley cannot
      find work consistently under regular work circumstances and work

                                         5
      dependably. I make the determination that he is permanently and
      totally disabled.

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

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

Therefore, the AW's reliance on the above cited evidence was proper and

constitutes substantial evidence supporting an award of PrD benefits.

      Flat Rock also argues thatthe AW erroneously determined that Neeley

sustained an injury to his left eye. As previously noted, one of the reasons the

Board originally reversed and remanded this case for additional information

was due to the mischaracterization of evidence concerning Neeley's alleged

injury to his left eye. In his amended order, the AW concluded in part that

"Dr. Sanders was Mr. Neeley's treating eye· specialist. She stated that he has

right eye pain and photophobia in his left eye."

      After considering the AW's corrected order, the Board and the Court of

Appeals expressed additional concerns about the AW's treatment of this

evidence concerning Neeley's alleged left eye injury. Nevertheless, both panels

affirmed the AW's revised order.

      We agree with Neeley concerning the evidence indicating a serious injury

to his right eye. However, the parties have failed to specifically cite any record

indicating Dr. Sanders' diagnosis of or reference to any ailment involving

Neeley's left eye. However, other records indicate. an impairment to Neeley's left
                                         6
eye. For example, Dr. Ralph Crystal, a vocational consultant, indicated that

Neeley reportedly experienced optic nerve pain in both eyes and light sensitivity

in his left eye. Neeley echoed these concerns in his final hearing testimony. In

addition, Flat Rock concedes on page 19 of its brief that "[a]fter the injury,

Neeley began to complain to Dr. Sanders of debilitating symptoms in his left

eye, consisting of extreme light sensitivity." Moreover, the AW's ultimate

decision to award PTD benefits was clearly based on the severe injury to

Neeley's right eye. Therefore, we cannot conclude that the AW lacked

substantial information for his decision to award PTD benefits.

Maximum Medical Improvement

      For its final argument, Flat Rock asserts temporary restrictions do not

support a PTD finding. Flat Rock specifically argues that the medical evidence

the AW relied on to support a finding of PTD was dated before Neeley had

reached maximum medical improvement (MMI). It is undisputed that Neeley's

MMI occurred December 4, 2013. The Board aptly addressed this issue as

follows:

      We first note that there is no blankl:!t prohibition against reliance
      upon a physician's statement made prior to the attainment of
      maximum medical improvement. The particular statement was
      made by Dr. Sanders in the November 27, 2012 report. She '
      indicated her concern Neeley would ever be able to return to work
      "unless he experiences spontaneous improvement." When
      considered in conjunction with Neeley's ongoing treatment after
      this statement was made, we believe it is probative of Dr. Sanders'
      impression of his overall condition. Stated otherwise, Dr. Sanders'
      subsequent medical records indicate Neeley never did experience
      "spontaneous improvement". Rather, his condition. worsened and
      required further surgical intervention.


                                         7
The Court of Appeals adopted the Board's reasoning. In further support of its

conclusion, the Court of Appeals cited our case of Arnold v. Toyota Motor Mfg.,

375 S.W.3d 56 (Ky. 2012). Therein, we stated that "[a]lthough causation and

the date of MMI are medical questions, a worker's testimony may provide

adequate support for a finding concerning his inability to work at a particular

point in time." Id. at"61. As previously noted, both parties stipulated that

Neeley suffered a 17% whole person impairment rating and that the AW gave

great weight to Neeley's live testimony. The AW also considered numerous

medical records. Therefore, there was substantial evidence supporting the

AW's determination.

                                  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.



COUNSEL FOR APPELLANT:

Thomas Clarke Donkin
QUINTAIROS, PRIETO, WOOD & BOYER, P.A.


COUNSEL FOR APPELLEE, STEVEN NEELEY:

McKinnley Morgan
MORGAN, COLLINS & YEAST




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