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RENDERED: APRIL 27, 2017
NOT TO BE PUBLISHED

Supreme Tnurt of Beniuckg

2016-SC-00046S-WC
ROGER BRENT BOLING APPELLANT

ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2016-CA-000086-WC
WORKERS’ COMPENSATION BOARD NO. 14-WC-99215

OWENSBORO MUNICIPAL UTILITIES, APPELLEES
HONORABLE JONATHAN R. WEATHERBY, ADMINISTRATIVE

LAW JUDGE AND

THE WORKERS’ COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Roger Boling appeals a ruling of the Court of Appeals which affirmed a
ruling rnade by the Workers’ Compensation Board. Boling raises two
arguments before this Court: (1) the evidence compels a finding contrary to the
previous rulings which held that Boling’s 2013 work-related injury was an
exacerbation of a previous work-related injury; and (2) that the findings of fact
and conclusions of law set forth by the Administrative Law Judge, (“ALJ”) are
inconsistent Boling has not previously asserted his second issue. Accordingly,

because Boling raises his second issue for the first time on appeal to this

Court, We refuse to entertain his argument.1 After reviewing the record we

affirm the ruling of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Boling has been employed by Owensboro Municipal Utilities since 1996.
In the course of his employment Boling repairs auxiliary equipment associated
with power generation. This work is physically demanding and entails lifting
heavy objects as well as having to bend, twist, and squat.

Boling sustained a work-related injury in 2007 while carrying a piece of
equipment down a set of stairs. As a result of this injury, Boling underwent
surgery on his L4-L5 spine, and was later released to work in 2009. Boling
settled his claim on September 23, 2008, based on a 13% AMA impairment
rating.

On December 26, 2013, while carrying a piece of equipment weighing
close to 100 pounds, Boling was injured again. His condition improved after
being put on light duty and completing limited physical therapy. Boling was
released to regular duty in late January of 2014.

In April, 2014, his symptoms reappeared. This Was the result of working
for long periods of time and performing heavy lifting and bending. Boling
complained that the pain worsened on the right side of his buttocks, leg, calf,

and ultimately reached into his right foot.

 

1 KRS 342.281; See Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985); Halls
Harwood Floor Co. v. Stapleton, 16 S.W.3d 327, 330 (Ky. App. 2000).

Boling went to Dr. Rhodes, the company physician, who referred him to
Dr. Troffkin, the same physician who had treated Boling in 2007. A MRI was
performed on May 22, 2014, and confirmed a right-sided L4-L5 disc bulge with
nerve root compression. Dr. Troffkin performed surgery on July 16, 2014, to
repair Boling’s L4-L5 injury. Boling returned to full duty on September 8, 2014.

Boling then sought permanent occupational disability benefits as a result
of his December 26, 2013, injury. A Benefits Review Conference and a Formal
Hearing were conducted in March, 2015. As was noted by the Court of Appeals,
the contested issue revolved around Whether Boling was entitled to any
benefits, or if further benefits were barred by KRS 342.730, the exclusion for
prior active disability or impairment, temporary total disability, and temporary
exacerbation of a prior injury.

On May 2, 2015, an ALJ rendered an Opinion and Award denying Boling
permanent partial disability benefits. The judge cited three physicians in his
decision, Dr. Rhodes, Dr. Troffkin, and Dr. Loeb. The ALJ held that the
evidence supported a finding that Boling suffered a temporary exacerbation of
his 2007 injury. v

Boling appealed to the Workers’ Compensation Board. Finding that the
ALJ properly exercised his discretion as a fact-finder, the Board rendered an
Opinion Affirming.

Boling then appealed-to the Court of Appeals. Similar to the Workers’

Compensation Board ruling, the Court of Appeals found that the ALJ properly

used his discretion in his ruling. Ultimately, using the same standard we must

use, the Court of Appeals affirmed the Board ruling.

II. ANALYSIS.

Boling faces a stringent standard of review before this Court. In a hearing
before an ALJ, the worker shoulders the burden of proving each essential
element of his claim.2 Furthermore, if a party is unsuccessful before the ALJ,
we will not disturb the ruling unless there is evidence that compels a different
result.3 Compelling evidence is defined as evidence so overwhelming that no
reasonable person could reach the same result as the ALJ.4

A. The evidence presented _does not compel a finding in favor of Boling.

The ALJ relied on three different physicians in making his finding.
According to the ALJ’s iindings, two of the physicians, Dr. Loeb and Dr.
Rhodes, agreed that Boling’s 2013 injury Was not a new injury. On the other
hand, Dr. Troffkin did believe that Boling’s 2013 injury should be considered a
new injury. The ALJ, as the finder of fact, has the sole authority to determine
the weight, credibility, substance, and inferences to be drawn from the
evidence.5 Furthermore, where the evidence is conflicting the ALJ may choose

whom or what to believe.6

 

2 Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).

3 See Hale v. CDR Operations, Inc., 474 S.W.3d 129, 140 (Ky. 2015]; WolfCreek
Collieries z). Crum, 673 S.W.2d 735 (Ky. App. 1984).

4 REO Mechanical v. Bames, 691 S.W.2d 224 (Ky. App. 1985).
5 See Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985)
6 See Pruitt v. Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).

Dr. Loeb conducted a peer review to address Boling’s diagnosis. In doing
So, Dr. Loeb reviewed all relevant medical records and examined Boling’s
history of work related incidents, including treatment and recovery. In his
medical opinion, Dr. Loeb believed that Boling did not suffer a new injury in
2013, rather it was Dr. Loeb’s opinion that Boling was suffering from the
recurrence of a prior medical condition. In addition to Dr. Loeb’s medical
opinion was that of Dr. Rhodes. In his medical opinion, Dr. Rhodes believed
that Boling’s symptoms were a temporary exacerbation of the 2007 injury.
Contrary to Dr. Loeb and Dr. Rhodes, Dr. Troffkin believed that Boling was
suffering from a new injury.

Considering the evidence as a whole, the ALJ made the following finding,
“...the ALJ is convinced by the opinions of Drs. Loeb and Rhodes that the
December incident Was a temporary exacerbation of the 2007 injury. The ALJ
further finds that per the opinion of Dr. Troffkin, no additional permanent
impairment rating is warranted. The ALJ finds that the Plaintiff suffered a
temporary exacerbation of the prior injury.”

Because a review court must give great deference to the ALJ as the finder
of fact, Boling has not convinced us that the evidence compels a different
result. Like the Court of Appeals and Workers’ Compensation Board, we fail to
find any compelling evidence which would permit us to overturn the ALJ’s
decision. While Boling may believe Dr. Troffkin’s testimony is more correct than
that of the other two physicians, the ALJ acted within his authority in

exercising his discretion and finding the testimony of Drs. Loeb and Rhodes

more persuasive. There is no indication that the ALJ was derelict in his
examination of the evidence and he made a reasonable ruling. As a result, we

will not disturb a proper ruling by the Court of Appeals.

III. CONCLUSION

For the foregoing reasons, the Court of Appeals is affirmed.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Scott Mitchell Miller

COUNSEL FOR APPELLEE: OWENSBORO MUNICIPAL UTILITIES

Sherri Lynn Keller
Ferreri 85 Fogle, PLLC

