         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    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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 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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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.
                                               RENDERED: FEBRUARY 18, 2016
                                                      NOT TO BE PUBLISHED
                                                                                WM"




               ,SuprrItir Court of
                               2015-SC-000202-WC
                                                                -4

                                                                                      a<ttfraiLb .C.
CITY OF INDEPENDENCE                                                   APPELLA



                    ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2014-CA-000230-WC
                   WORKERS' COMPENSATION NO. 12-00124



PHILLIP DUNFORD;
HONORABLE WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, City of Independence, appeals a Court of Appeals decision

which affirmed a Workers' Compensation Board ("Board") opinion that vacated

and remanded Phillip Dunford's workers' compensation award. Independence

argues that the Board issued contradictory opinions regarding the evidence the

Administrative Law Judge ("ALJ") could rely on and that the Court of Appeals

erred in ruling that even if Dunford had a pre-existing condition which caused

the entirety of his impairment rating he still could be entitled to future medical

benefits. For the below stated reasons, we affirm the Court of Appeals.

      Dunford was employed by Independence as a police officer when he

slipped and fell in the police station parking lot. Prior to the work-related
accident, Dunford had a twenty-year history of lower back problems for which

he was treated by chiropractors on numerous occasions. Dunford testified that

the fall worsened his low back problems. He filed a Form 101 for workers'

compensation benefits.

       Prior to, and after the work-related accident, Dunford received treatment

from Independence Chiropractic. After the accident, Dunford sought medical

treatment with his family physician, Dr. Craig Sanders, who referred him to Dr.

Michael Rohmiller. Dr. Sanders also ordered an MRI be performed on Dunford.

Dr. Rohmiller referred Dunford to Dr. Justin Kruer for pain management which

included radiofrequency ablations and epidural shots.

      In support of his workers' compensation claim, Dunford submitted

treatment records from Dr. Rohmiller and Dr. Kruer along with a lumbar MRI

scan. Dr. Kruer diagnosed Dunford with lumbar disc degeneration with

foraminal narrowing and facet arthropathy. Dr. Kruer found that the work-

related fall caused Dunford's pre-existing low back problems to worsen. He

determined that pursuant to the AMA Guides, Fifth Edition, Dunford "would

fall under DRE lumbar Category II with an 8% impairment rating." Dr. Kruer

later testified that he was not qualified to assess Dunford's impairment rating

prior to the work-related injury.

      In rebuttal, Independence submitted records from Independence

Chiropractic showing Dunford's treatment prior to the work-related fall.

Independence also submitted an independent medical examination report by

Dr. Thomas Bender. Dr. Bender compared Dunford's chiropractic records from



                                        2
before the work-related accident and after and found there were no interval

changes in the physical examination findings. Dr. Bender diagnosed Dunford

with longstanding structural spinal degenerative disease and history of

protracted chiropractic care. He also noted the existence of a pelvic contusion

and a potential sprain/ strain of the lumbar spine due to the work-related

accident. Dr. Bender concluded that Dunford had a pre-existing, active

condition prior to the work-related accident and assessed a 5-8% impairment

rating pursuant to the AMA Guides. In a supplemental report, Dr. Bender

opined that Dunford had an 8% pre-existing active impairment before the

work-related accident and that he does not qualify for any impairment rating or

increase in impairment due to the fall.

      The AI,J, after a review of the evidence, found that Dunford sustained a

work-related injury which resulted in an 8% impairment rating. He also

awarded Dunford the three multiplier pursuant to KRS 342.730(1)(c)1.

Independence filed a petition for reconsideration requesting that the ALJ make

a finding of fact as to whether Dunford actually retains the physical capacity to

perform his pre-injury job and to provide the particular evidence of record upon

which he relied to conclude Dunford would be unlikely to continue his current

wage earning capacity for the indefinite future. Independence also argued that

that the ALJ did not properly consider the records and deposition testimony of

Dr. Kruer. The petition for reconsideration was denied without any review of

the records or deposition testimony of Dr. Kruer. Independence appealed to

the Board.


                                          3
      The Board vacated and remanded the ALJ's opinion and award for

further findings of fact on whether Dunford had a prior active impairment. The

Board held in regards to Dunford's prior active impairment rating:

      The ALJ's decision, as well as the order on reconsideration, is
      bereft of any discussion of the basis for his decision, other than
      making the above conclusory statement. We find it puzzling the
      ALJ notes his reliance upon the medical report of Dr. Kruer, which
      contains no discussion of whether Dunford's alleged pre-existing
      condition was symptomatic and impairment ratable pursuant to
      the AMA Guides immediately prior to [the work-related injury].
      Likewise, Dr. Kruer testified by deposition he did not have an
      opinion as to whether Dunford qualified for an impairment rating
      prior to his fall since he was not privy to any of the records before
      he saw him.

On remand, the ALJ was ordered to consider Dr. Kruer's deposition testimony

as well as the records from Dr. Bender. The Board opined that in regards to

the existence of a pre-existing impairment, "The only medical opinion touching

on this issue appears to be rendered by Dr. Bender in his August 15, 2012 and

October 29, 2012 reports, who ultimately stated Dunford had an 8% active pre-

existing impairment." The Board additionally held that the ALJ did not provide

adequate support for awarding the three multiplier. No appeal was taken from

the Board's opinion.

      The ALJ issued a new Amended Opinion and Order on Remand which

again did not satisfy the Board's directive. Independence appealed again to the

Board which issued a second Opinion and Order Vacating and Remanding.

The Board again found that the ALJ failed to consider Dr. Kruer's deposition

testimony and the records of Independence Chiropractic. The Board stated:

      We decline Independence's invitation to declare there is not
      substantial evidence which would support a determination

                                       4
      Dunford did not have a prior active condition meriting an
      impairment rating. Dunford's, testimony that he merely had
      intermittent problems off and on over twenty years which
      chiropractic care substantially alleviated and the pain he
      experienced after the injury is completely different, along with Dr.
      Kruer's August 17, 2012, letter and portions of his deposition
      testimony would constitute substantial evidence in support of a
      determination. Dunford sustained a work-related injury which
      merited an impairment rating.

The Board pointed out that the fact that Dr. Kruer did not have any of

Dunford's pre-injury records only went to the weight and not the admissibility

of his opinion. The Board again found that the ALJ performed a faulty analysis

regarding application of the multipliers and vacated an interlocutory order he

issued awarding medical expenses.

      Independence appealed to the Court of Appeals arguing that the Board's

second opinion contradicted its first opinion. Independence argued that the

Board's first opinion stated that the only relevant evidence regarding the

existence of a prior active impairment was the opinion of Dr. Bender. Dr.

Bender found that Dunford's impairment rating was entirely pre-existing and

active when the work-related injury occurred. Independence then noted that

the Board's second opinion stated that Dunford's testimony, Dr. Kruer's letter,

and portions of Dr. Kruer's deposition testimony constituted evidence that

would support a conclusion that not all of the 8% impairment was pre-existing

and active. The Court of Appeals affirmed holding that the Board was not

making a merit based factual finding or legal holding concerning the pre-

existing condition in its opinions, but was only highlighting the evidence the

AU could consider on remand. This appeal by Independence followed.



                                         5
      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only where

the Court perceives 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 Id. at 687-88. Finally, review by this

Court"is to address new or novel questions of statutory construction, or to

reconsider precedent when such appears necessary, or to review a question of

constitutional magnitude Id. The ALJ, as fact-finder, has the sole discretion

to judge the credibility of testimony and weight of evidence. Paramount Foods,

Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).

      Independence's first argument is that the Board erred in its second

opinion by stating that on remand the ALJ could rely on Dunford's deposition

testimony and a certain letter and testimony by Dr. Kruer to find that Dunford

suffered a work-related injury which merits an impairment rating.

Independence states that by specifically highlighting this evidence, the Board

contradicted its first opinion which stated that the ALJ should review Dr.

Kruer's deposition testimony and Dr. Bender's records to determine whether

any of Dunford's impairment rating was caused by pre-existing back injuries.

The first opinion also noted that only Dr. Bender's opinion touched on whether

Dunford had an active pre-existing impairment. We disagree.




                                         6
      The Board's first opinion remanded the matter to the ALJ for him to

review the evidence which supports Independence's argument that Dunford

had an active pre-existing impairment when he suffered the work-related

injury. In so doing, the Board pointed out certain evidence that the ALJ

needed to review and analyze in his new opinion, but did not mandate the ALJ

reach a certain result. In the Board's second opinion, it noted that the ALJ

again failed to provide an adequate review of the evidence, but again did not

order that the A1.0 make a certain decision. On remand, the ALJ is free to find

that Dunford did or did not have an active pre-existing impairment. The key

will be for the ALJ to provide a detailed analysis of the evidence in the record

and an explanation for his decision.

      Independence's other argument is that the Court of Appeals erred by

making the following statement, "Even if, upon remand, Dunford is found to

have a pre-existing condition, he would still be entitled to some future medical

benefits." The Court of Appeals noted that this issue was found to be moot by

the Board because it was the law of the case that Dunford did in fact suffer a

work-related injury. Independence objects to the use of the word "would"

because if the AU finds   on remand that all of Dunford's current impairment
rating is related to an active pre-existing condition, there could not be an

award of future medical benefits. But as long as Dunford has a disability from

the work-related injury he is entitled to medical treatments as warranted by

the evidence. KRS 342.020(1). Furthermore "disability exists for the purposes

of KRS 342.020(1) for so long as a work-related injury causes impairment,


                                         7
regardless of whether the impairment rises to a level that it warrants a

permanent impairment rating, permanent disability rating, or permanent

income benefits." FEI Installation, Inc. v. Williams, 214 S.W.3d 313, 318-319

(Ky. 2007). On remand, we trust that the ALJ will review the record and base

his decision regarding an award of future medical benefits on evidence of

substance.

      Thus, for the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. Minton, C.J.; Cunningham, Keller, and Venters, JJ., concur.

Hughes, Noble, and Wright, JJ., concurs in result only.




COUNSEL FOR APPELLANT,
CITY OF INDEPENDENCE:

James Gordon Fogle
Derek Scott Monzon


COUNSEL FOR APPELLEE,
PHILLIP DUNFORD:

Larry Steven Shelton




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