               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        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·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 CONS.IDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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: AUGUST 24, 2017
                                                     NOT TO BE PUBLISHED

              juprttttt filnurf nf !bttnfurku
                             2016-SC-000451-WC


TRIM MASTERS, INC.                                                 APPELLANT


                    ON APPEAL FROM COURT OF APPEALS
                       CASE NO: 2015-CA-000923-WC
V.                   WORKERS' COMPENSATION BOARD
                            NO. l l-WC-66743


EVA BETH ROBY;                                                     APPELLEES·
HON. WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD


                  MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      The Administrative Law Judge (AW) found that Eva.Beth Roby is

permanently and totally disabled as a result of a work-related injury. The

Workers' Compensation Board (Board) reversed.the AW and remanded with

instructions for the AW to make an award of permanent partial disability. The

Court of Appeals, holding that the Board had substituted its judgment for that

of the AW, reversed the Board and reinstated the AW's opinion. Having

reviewed the record, we affirm the Court of Appeals.
                               I. BACKGROUND.

      The underlying facts are essentially not in dispute. Roby, who worked as

an assembler for Trim Masters, suffered a repetitive trauma injury to her right

upper extremity that became manifest on April 22, 2011. At the time, Roby

was thirty-three years of age; had a high school education with no specialized

or vocational training; and had worked as a retail and fast food cashier and an

assembler for another manufacturer.· As a result of her injury, Roby

experienced pain throughout her right upper extremity with loss of right hand

grip strength .

     . Dr. Gabriel initially treated Roby conservatively but, when she did not

improve, he performed surgery in October 2011. Following that surgery, Roby

continued to experience right upper extremity pain and weakness, and Dr.

Gabriel advised her to refrain from repetitive use ofher right upper extremity

and to avoid lifting more than 10 pounds. Roby has not returned to work since

October 2011.

      In November 2012, Roby filed an Application for Resolution of Injury

Claim. The parties thereafter litigated this matter with Roby filing a medical

report from Dr. Bilkey, who concurred with Dr. Gabriel's restrictions and who

assessed a 6% permanent impairment rating. Roby also filed a vocational

report from William Ellis who opined that, because of the limitations on the use

of her right upper extremity, Roby was totally disabled. Ellis indicated that

Roby might benefit from vocational rehabilitation but not until her pain

decreased and her use of her upper extremity improved.

                                       2
      Trim Masters filed the vocation?l evaluation report of Paula Shifflett.·

Shifflett noted that Roby had enrolled as a full-time student in the nursing

program at St. Catherine College, with the intent of becoming a pediatric nurse.

Shifflett did not address the extent of Roby's disability but provided a detailed

cost/benefit analysis of attending St. Catherine College versus attending

Bluegrass Community and Technical College. Trim Masters also filed Dr.

Gabriel's records and a job description, which indicated that Roby was required

to use her hands constantly and lift up to 20 pounds.

      Roby testified in her deposition and at the final hearing that she was

attending St. Catherine College with the goal of becoming a pediatric nurse.

According to Roby, nurses, counselors, and teachers had advised her that she

would be able to work as a pediatric nurse with her restrictions.
             I

      Based on the preceding evidence, the AW rendered an opinion on May

13, 2013, finding that Roby is totally and permanently disabled. Trim Masters

appealed to the Board. On January 3, 2014, the Board vacated the AW's

opinion and remanded with instructions for the AW to undertake additional

analysis regarding his finding of permane~t and total disability. In parti6ular,

the Board ordered the AW to address how Roby's age and her "current

schooling and nursing aspirations factor into his decision." Furthermore, the

Board stated that "[a]lthough there may be substantial evidence in the record

supporting the ultimate determination Roby is permanently and totally

disabled, the AW must provide an adequate explanation of the basis for his




                                        3
decision." Finally, the Board stated that it was not directing the AW to make

?UY particular finding al:l to the extent and duration of Roby's disability.

       On February 14, 2014, the AW rendered an amended opinion, again

finding that Roby is totally and permanently disabled. As noted by the Court of

Appeals, the AW's second opinion:

      [R]estated key points from the testimony of [Dr.] Bilkey, noting that
      it was the most compelling evidence presented. With regard to age,
      the AW only noted that [Roby] was in "early middle age." In regard
      to Roby's education, the AW noted that she received her high
      school diploma "many years ago" and it was reasonably probable
      that if Roby received vocational rehabilitation and completed her
      degree, she could find gainful employment, which would operate as
      grounds for Trim Masters to move to reopen the matter under
      [Kentucky Revised Statute] KRS 342.125.

Roby v. Trim Masters, Inc., 2015-CA-000923-WC, 2016 WL 3962602, at *2 (Ky.

App. July 22, _2016). Trim Masters again appealed to the Board.

      On July 3, 2014, the Board again vacated the AW's opinion, finding that

he had again failed to adequately addresii how Roby's age and educational

pursuits factored into his opinion. Additionally, the Board stated that the AW

had failed to factor into his opinion Roby's testimony that a number of people

had advised her that she would be able to work as a pediatric nurse within her

restrictions.                                         '

      On August 11, 2014, the AW rendered a third opinion, noting that he

observed Roby and was in the best position to judge her credibility. The AW

also found that Roby's "age places her in early middle age for the purposes of

re-employment in the highly competitive job market." As to her education, the

AW noted that it had been several years since Roby completed high school and

                                         4
that she had no vocational edu,cation or training, which also had an adverse

impact on her ability to find employment. As to Roby's physical capabilities,

the AW found that her restrictions limited her to one-handed work and that

her level of pain-further restricted her employment options. Based on the

preceding, as well as Ellis's opinion that Roby is incapable of returning to work,

the AW again found her to be permanently and totally disabled. Trim Masters

again appealed to the Board.

      On December 5, 2014, the Board again vacated the AW's opinion,

finding that he had failed to adequately address Roby's pursuit of a nursing

degree in his conclu~ion. The Board also stated that the AW's finding that

Roby is "early middle age" did not adequately address how he factored Roby's

age into his conclusion.

      On January 15, 2015, the AW rendered his fourth opinion, which as the

Court of Appeals found,

     was largely identical to the opinion he issued on August 11, 2014,
     with several exceptions. The AW underlined pertinent facts
     throughout his recitation of the evidence which tend to support his
     findings. Regarding Roby's age, the AW offered the following
     finding: "Ms. Roby is now 37 years of age and I make the
     determination that her age places her in the early middle age for
     purposes of re-employment in the highly competitive job market
     under Bureau of Labor Statistics studies" (emphasis in original).
     He further opined that the fact that Roby is 37 years old and has
     not worked in three years supports a finding of PTD, with no
     further elaboration. The AW also repeated Ellis' conclusions just
     as he had done in the previous order, but with underlining for
     emphasis. The AW also addressed the new concern raised by the
     Board in its previous order, by noting that no vocational evidence
     was produced which tended to show Ro.by would be physically
     capable of performing the job duties of a pediatric nurse, and the
     only evidence to the contrary is anecdotal. The AW ultimately
     reached the same conclusion· as in the previous three orders [sic].
                                       5
_Id. at *3. Trim Masters appealed to the. Board for the fifth time.

      As the Court ofAppeals indicated, it appears that "[t]he patience of the

[Board] members had clearly grown thin by this point." Id. This time, the

Board vacated the AW's opinion stating as follows:

             After having been afforded the opportunity to do so on
      multiple occasions, the AW has failed to provide more than mere
      conclusocy statements in determining Roby is permanently totally
      disabled. Regarding the impact of Roby's college enrollment, the
      AW merely stated there was no "expert testimony". Regarding
      Roby's age, the AW repeated the fact Roby is thirty-seven years of
      age, which he found to be "early middle age", again without
      explaining the impact, or how this supports his finding of PTD.
      The AW's statement Roby has not worked in over three years 1s
      based on an assumption since there is no such testimony in the
      record. The AW merely assumes Roby had not worked since the
      claim was initially taken under submission.
             Authority generally establishes an AW must effectively set
      forth adequate findings of fact from the evidence in order to
      apprise the parties of the basis for his decision, although he is not
      required to recount the record with line-by-line specificity nor
      engage in a detailed explanation of the minutia of his reasoning in
      reaching a particular result. Shields v. Pittsburgh and Midway
      Coal Min. Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Cmty.
      Action Program v. Chaffins, 502 S.W.2d 526 (Ky. 1973).
             We agree the AW was not required to discuss every shred of
      evidence which factored into his decision. However, after being
      directed to do so, and having been afforded the opportunity to
      provide some explanation for his reasoning, the AW has failed to
      explain how the fact Roby is now thirty-seven years of age
      translates into her being permanently totally disabled. Likewise,
      although directed to do so, the AW has failed to address how the
      fact Roby is attending college has factored into his reasoning.
             The AW has failed to respond to the directive of this Board,
      and has only provided conclusocy statements. Merely making
      conclusocy statements without citation to supporting substantial
      evidence amounts to an abuse of discretion. Abuse of discretion
      has been defined, in relation to the exercise of judicial power, as
      that which "implies arbitrary action or capricious disposition under
      the circumstances, at least an unreasonable and unfair decision."
      Kentucky Nat. Park Commission, ex rel. Comm., v. Russell, 301

                                         6
       Ky. 187, 191 S.W.2d 214 (Ky. 1945). Bullock v. Goodwill Coal Co.,
     . 214 S.W.3d 890, 893 (Ky. 2007).
              Because the AW has inexplicably failed to point to ·
       substantial evidence supporting his decision, the award of PTD
       benefits is hereby reversed. On remand, the AW is directed to
       make a determination regarding the extent of Roby's entitlement to
       PPD benefits. In arriving at this decision, we are not engaging in
       fact-finding. The AW has had multiple opportunities to cite to the
       evidence which supports his determination, and has been unable
       to do so.
              As noted in the dissent from the December 5, 2014 opinion,
       it is not in the interest of judicial economy to remand this case for
       additional fact-finding regarding entitlement to PTD benefits. We
       note the evidence has established Roby sustained a serious injury,
       but the AW has failed to provide substantial evidence supporting
       an award of PTD benefits. However, clearly Roby is entitled to an
       award of PPD benefits. Therefore, we remand for the AW to make
       an award of PPD benefits supported by the evidence.

      Roby appealed to the Court of Appeals, which reversed, finding that

substantial evidence supported the AW's opinion and that the Board had

engaged in impermissible fact finding. Trim Masters now appeals to us,

arguing that the Board was simply performing one of its duties by "reel[ing] in

an AW when that AW has made a decision that is clearly erroneous and is not

supported by substantial evidence of record."

                          II. STANDARD OF REVIEW .

     .The 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. Paramount Foods, Inc. v.

Burkhardt, 695 S.W.2d 418,419 (Ky. 1985). Roby had the burden of proving

every element of her claim, including the extent and duration of :her disability.

See Gibbs v. Premier Scale Co./Indiana Scale Co., 50 S.W.3d 754, 763 (Ky.
                                        7
2001), as modified on denial of reh'g (Aug. 23, 2001). Because she was

successful before the AW, the question for us on appeal is whether the AW's

finding of permanent and total disability 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. Thus, the determinative question to be answered on review is whether

the AW's finding that Roby is permanently and totally disabled "is so

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

matter of law." KRS 342.285; Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d.

48, 52 (Ky. 2000).

                                 III. ANALYSIS.

      There are essentially two issues before us: (1) whether the AW's ultimate

finding of permanent and total disability was supported by substantial

evidence; and (2) whether the AW's opinion was adequate to support his

finding of permanent total disability. We address those issues in that order

below.

A.    The AL.J's finding of permanent and total disability was supported
      by substantial evidence.

      In pertinent part, KRS 342.0011(1 l)(c) 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 iajury." Work is defined as "providing services to

another in return for remuneration on a regular and sustained basis in a
                                        8
competitive economy." KRS 342.0011(34). In determining whether a claimant

is totally and permanently disabled an AW is required to undertake:

      an individualized determination of what the worker is and is not
      able to do after recovering from the work injury. Consistent.with
      Osborne v. Johnson, [432 S.W.2d 800 (Ky. 1968)), it 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. The definition of "work" clearly contemplates that a
      worker is not required to be homebound in order to be found to be
      totally occupationally disabled. See, Osborne v. Johnson, supra, at
      803.

Ira A. Watson Dept. Store, 34 S.W.3d at 51.

      The undisputed evidence established that Roby has a 6% permanent

impairment rating, cannot lift more than lb pounds with her right arm, cannot

use her. right arm repetitively, and has increased
                                         .         pain with use of her right

arm. Roby has a high school education and, based on the record before the

AW at the time he completed his opinion, Roby_had completed no other

vocational or specialized training. In terms of work-experience, Roby's past

jobs required her to use her upper extremities repetitively and she has not

worked since 2011.l Based on this evidence, and noting in particular Roby's


       1 The Board stated that the AW's statement that Roby had not worked for three
years was based on an assumption as there was no such testimony in the record. We
note that the parties stipulated that Roby last worked in ·october 2011. This
stipulation is suppo'rted by Roby's February 15, 2013 deposition testimony that she
was receiving unemployment benefits and her April 24, 2013 hearing testimony that
she continued to receive unemployment. Neither party introduced evidence following .
the hearing, and there is no evidence in the record that Roby ever returned to work.
                                         9
complaints of pain with use of her right arm, Roby's vocational expert, Ellis,

.concluded that she is totally disabled. Furthermore, Ellis stated that Roby's

status would remain unchanged until she completed her education; however,

he doubted she would be able to do so until she could get her pain under

control. Based on the preceding, and considering Roby's age, which he

described as "early middle age," the AW concluded that Roby is permanently

and totally disabled.

       Although we might not have reached the same conclusion, we cannot say

that the AW's conclusion was, as a matter of law, unsupported by the

evidence. Certainly, based on Roby's age, continuing education efforts, and

belief that she could perform work in the future as a pediatric nurse, the AW

could have concluded that Roby is only partially disabled. However, the

evidence did not compel that finding. Furthermore, the Board acknowledged as

much in its first opinion, stating that "there may be substantial evidence in the

record supporting the ultimate determination Roby is permanently and totally

disabled." Therefore, we affirm the AW's determination that Roby is

permanently and totally disabled.2

B.     The AL.J's Opinion was sufficient.

       KRS 342.275(2) and KRS 342.285 contemplate an opinion.that
       summarizes the conflicting evidence concerning disputed facts;

Therefore, the AW's assumption was a permissible inference based on the evidence of
record.
      · 2 As the Court of Appeals noted, while the ALJ found Roby to be permanently
and totally disabled based on the record as it existed, he recognized that completion of
her education could lead to employment. If that occurs, Trim Masters can certainly
reopen the award pursuant to KRS 342.125.

                                          10
      weighs that evidence to make findings of fact; and ·determines the
      legal significance of those findings. Only when an opinion
      summarizes the conflicting evidence accurately and states the
      evidentiary basis for the AW's finding does it enable the Board and
      reviewing courts to determine in the summary manner
      contemplated by KRS 342.285(2) whether the finding is supported
      by substantial evidence and reasonable.

Arnold v. Toyota Motor Mfg., 375 S.W.3d 56, 61-62 (Ky. 2012) (footnote

omitted).

      As set forth above, the Board found, on four occasions, that the AW's

opinions were deficient. The Court of Appeals disagreed, as do we. The AW set

forth the evidence in some detail, noting Roby's education, work-experience,

and medical and vocational deficits. He also noted that she was attending

college and seeking a degree which would lead to employment she believed she

could perform. However, he concluded that she was, at the time of his opinion,

unable to perform any work in a competitive economy.

      The Board, with each remand, found that the AW's opinions were

deficient because the AW did not sufficiently explain how Roby's age and her

pursuit of a college degree had an impact on her disability rendering his

opinion deficient. While we understand the Board's frustration with an ·Aw it
             .                                  .
perceived to be uncooperative, we disagree th~t the AW's opinion was deficient.

We agree that the AW did not explicitly.state that Roby would be precluded or

even impaired from finding work because of her age. However, it is implicit in

the AW's statement that Roby's "age places her in the early middle age for

purposes of re-employment in the highly competitive job market" that he

believed her age was a partial impediment to h,er returning to work. ("Implicit

                                       11
in the AW's decision to reject the employer's argument that the shoulder injury

did not prevent the claimant from working until November 2008 are findings

that pain from the irtjury contributed to causing [his) stress and depression."

Id. at 62.) Furthermore, the AW did address the impact Roby's continuing

education had on his assessment of disability, stating that she might be able to

return to work after completing that education. Again, implicit in that finding

is a finding that Roby would not be able to return to work until she had

completed that education.

      Finally, although we believe the AW's last opinion was sufficient, the

Board should not, based on this opinion, simply "rubber stamp" AW opinions

that do not meet the requirements of KRS 342.285 and Tudor and its progeny.

However, the solution for deficient opinions is to require more thorough

opinions, as the Board attempted to do, not to make independent findings of

fact, which is what the Board did here. Here, the AW'.s opinion is sufficient to

enable reviewing courts to determine that it is reasonable and supported by

substantial evidence; therefore, the Board's remand for a finding that Roby

only suffers from a permanent partial disability was inappropriate.

                                IV, CONCLUSION.

      Having reviewed the record and the arguments of the parties, we affirm

the Court of Appeals.

      Minton, C.J.; Cunningham, Hughes, Keller, Venters and Wright, JJ.,

sitting. All concur. VanMeter, J., not sitting'.




                                         12
COUNSEL FOR APPELLANT:

Russell Scott Borders
Sarah Hays
Fogle Keller Purdy, PLLC

Emily Wetmore


COUNSEL FOR APPELLEE, EVA BETH ROBY:

Audrey Haydon
Ben Thomas Haydon, Jr.




                              13
