RENDERED_: JUNE 15, 2017
TO BE PUBLISHED

§§npreme Tnnrt of Béntuckg

2016-sc-0_00407-Wc
LKLP cAc INC. . 1 AP`PELLANT

ON APPEAL FROM COURT OF APPEALS
_ ` CASE NO. 2016-CA-000163-WC
V. \ WORKERS’ COM‘PENSATION BOARD
' ` NO. 09-WC-97826

BRA_NDON FLEMING; APPELLEES
HON. ‘R. ROLAND CASE, ' '
ADMINISTRATIVE LAW JUDGE; AND

WORKERS’ cOMPE-NSATION BOARD

opinion oF THE coUR'r BY JUs'rrcE KELLE_R`.
AFFIRMING
In 2010, an Administrative Law Judge [ALJ) awarded Brandon Flerning`
permanent partial disability benefits based on a finding that Fleming had a l
physical impairment rating of 13% and a psychological impairment rating o`f
5% for a combined permanent impairment rating of 17%. Fleming- filed a
motion to reopen his claim in 2014 alleging that his condition had yvorsened.\ 'A
different ALJ found that Flerning had a physical impairment rating pf 23% and

a psychological impairment rating of 12% for a combined permanent

impairment rating of 32%.1 LKLP CAC Inc. (LKLP) appealed, and a divided
'Workers’ Compensation Board (the Board] affirmed. LKLP then sought review
before the Court of Appeals, which also affirmed Bei`ore us, as it did before then
Board and the Court of Appeals, LKLP argues that the ALJ’s opinion is not
supported by evidence of substance because the ALJ relied on a physician who
stated that Fleming’s permanent impairment rating had not changed following
the 2010 opinion and award. As did the majority of the Board and the Court of
Appeals, we disagree that the ALJ’s'iindings are not properly supported by the
evidence and affirm. -

I. BACKGROUNI_).

Fleming Worked as a youth director for LKLP, a community action
agency. On October 22, 2007, Fleming suffered a work-related back injury
when the van he was driving was struck from behind. In September 2008,

7 Fleming underwent lumbar spine fusion surgery, which initially alleviated some
of his leg symptoms, and he returned to work. However, Fleming continued to
suffer from low back pain that was aggravated by standing or sitting for long
periods and he stopped working in August 2010. We note that, in addition to
his physical complaints, Fleming complained of irritability and depression.

However, the only issues before us are related to Fleming’s physical

 

1 The 17% and 32% permanent impairment ratings were calculated using the
“Combined Values Chart” on pages 604- 06 1n Linda Cocchiarella and Gunnar B. J.
Andersson, AMA Gu.ides to the Evaluation of Permanent Impai.rn:cent (5'¢h ed. 2012).

complaints; therefore, we do not further address Fleming’s psychological
condition.

LKLP disputed`the work-relatedness of Fleming’s injury, and Fleming
iiie<i a claim ibt beneats. outing'the litigation Oi that ciaim, the parties
introduced the following pertinent medical evidence. Dr. David Herj_r diagnosed
Fleming with a herniated disc at L5-Sl that had been surgically repaired. He
assigned Fleming a 13% permanent physical impairment rating and stated that
Fleming should avoid heavy lifting and repetitive bending and should change
positions frequently. ‘

" Based on that evidence, the A]l.J found that Fleming had a 13%
permanent physical impairment rating and that Fleming was capable of
performing the type of work' he performed at the time of his injury. Therefore,
the ALJ did not award Fleming the three multiplierl under Kentucky Revised‘
statute (KRs) 342.:730(1)(¢)1.` ' l '

On March 26, 2014, Fleming filed a motion to reopen, alleging that his
condition had worsened. During the reopening litigation, the parties filed the

following pertinent evidence. ` v d

Fleming testified that, after the 2010 opinion and award, his back and
leg pain increased,\ and he was no longer able to: work, mow his lawn, perform
most non-sedentary household chores, or_ drive long distances In an attempt
to alleviate his pain, Fleming had undergone implantation of a spinal cord

stimulator in 201 1. That device proved to be helpful in partially alleviating

\

Fleming’s'leg symptoms; however, his physician had to remove it within a year
because of a malfunction.

In addition to his testimony, Fleming filed voluminous medical records as
Well as reports from Drs. Brackett and Guberman. Dr. Brackett stated that
Fleming has a 47% permanent impairment rating, 15% attributable to his
' cervical spine, 6% attributable to his thoracic spine, and 28% attributable to

_ his lumbar spine.r Furthermore, Dr.; Brackett stated that Fleming could not
return to the type of work he performed at'the time of his injury, and that
Fleming should avoid: prolonged walking, standing,. stooping, squatting, hip
bending, climbing, and excessive flexion, extension, and rotation of his back._
Dr. Guberman.stated that Fleming has a 28% permanent impairment rating,

' which reflects a 15% increase from the permanent impairment rating initially
assessed'by the ALJ. Dr. Guberman also stated that Fleming should avoid

. prolonged sitting,_ travelingz carrying, lifting, pushing, and pulling. Finally,
Fleming filed a functional capacity assessment indicating that he could perform
light and sedentary work as long as he could frequently change positions.

LKLP filed a medical report from Dr. Vaughan and the transcript of Dr.
Vaughan’s deposition. Dr. Vaughan, who did not evaluate Fleming during the \
initial litigation, stated that Fleming has a 23% permanent impairment rating,
should avoid lifting more than 25 pounds and repetitive bending and twisting,
and should alternate between sitting and standing Dr. Vaughan stated that
he would have assigned the same permanent impairment rating and imposed

_ the same restrictions-if he had seen Fleming following his surgery. LKLP also

4

filed a functional capacity assessment that indicated Fleming could perform a
wide range of sedentary to medium level work.

h The ALJ undertook a thorough review of the evidence and concluded that
Fleming is not totally disabled. However, the ALJ found that Fleming’s
permanent physical impairment rating had increased from_13% to 23%. The
Al.,l also found that Fleming is incapable of returning to his pre-injury work
activity, and he awarded permanent partial disability benefits accordingly. ln
determining Fleming’s permanent impairment rating, the ALJ stated as follows:

The Administrative_Law Judge in the original claim found the
plaintiff had a 13% physical impairment This finding is res
judicata. The Administrative Law Judge has reviewed the medical
evidence and is persuaded by the IME report done at the request of
the defendant-employer that'the plaintiff now has a 23%
impairment rating. The impairment rating of Dr. Brackett` is
rejected since it includes impairment ratings for the thoracic and
cervical area. Dr. Guberman assessed a 15% impairment but after
comparing the reports of Dr. Guberman and Dr. Vaughn [sic], the
Adrninistrative Law Judge is persuaded by the report of Dr.
Vaughn [sic] that the plaintiff has a 23% impairment rating. Since
the plaintiff only had a 13% impairment rating at the time of the
original opinion and now has a 23% impairment, there has
obviously been an increase in his impairment and the
Adrninistrative Law Judge will so find. As previously indicated the
findings of .the 13% impairment in the original opinion is res
judicata and the defendant cannot now argue that he actually had
a 23% impairment the whole time.

As previously noted, the Board and the Court of Appeals affirmed this opinion
by the ALJ. ' n
11. sTANDARD oF REerw.
The ALJ as fact finder has the sole authority to judge the weight,
credibility, substance, and inferences to be drawn from the evidence.

- Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). ln _
' ' 5

reaching his decision, the ALJ is free to choose to believe or disbelieve parts of
»the evidence from the total proof, no matter- which party offered it. Caudill v.
Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977). I_f` the party with the
burden of proof is successful before the ALJ, the question on appeal is whether
the ALJ’s opinion was supported by substantial evidence. Whittaker v. v
Rowland, 998 S.W.2d 479, 481 (Ky. 1999]. Substantial evidence is- evidence of
` substance and relevant consequence, having the fitness to induce conviction in
the minds of reasonable people. Sm.yzer v. B.F. Goodrich Chem. Co., 474
S.W.2d 367, -369 (Ky. 1971). However, the ALJ’s discretion is not limitless and
we will reverse the ALJ if his opinion “is so unreasonable under the evidence
that it must be viewed as erroneous as a matter of law.” Ira A. Watson Dep’t. '
Store v. Hamz'lton, 34 S.W.3d 48, 52 (Ky. 2000). Furthermore, when there are
mixed questions of fact and law, we have greater latitude in determining if the
underlying decision is supported by the evidence. Purchase Transp. Servs. v.
Estate _of 1Wilson., 39 S.W.Sd 816, 817-18 (Ky. 2001); Uninsured Employers’
Fund v. Garlan.d, 805 S.W.2d 116, 117 (Ky. 1991).
III. ANALYSIS.
-KRS 342.125(1) provides in relevant part that “an administrative law
judge may reopen and review any award or order” upon a showing of a
‘“[c']hange of disability a_s shown by objective medical evidence of worsening or
improvement of impairment due to a condition caused by the injury since the

date of the award or order.” While KRS 342. 125 permits an ALJ’s_award to be

reopened with regard to a change in disability, it does not permit that award to

be reopened for all purposes

[O]nce an ALJ-adjudicated award and order becomes final, the

ALJ's determinations with respect to, e.g., causation, notice,

apportionment, etc., cannot be readdressed under KRS 342. 125

except upon an allegation of fraud, newly discovered evidence, or

mistake, grounds that do not exist and are not asserted in this

case. The reason, of course, is that revisiting issues previously

decided is precluded by the principle _of res judicata.
- Garrett Mining Co. v. Nye, 122 S.W.3d 513, 522 (Ky'. 2003).' Although not
specifically in_the list of final non-reviewable determinations, an ALJ’s finding -
regarding a claimant’s permanent impairment rating at the time of the initial
award is non-reviewable once final._ We reach this conclusion for two reasons.
First, a finding of a permanent impairment rating, like a finding as to
causation, notice, etc., is a threshold issue that forms the basis of an award.
Second, in Garrett Mining,.the Court held that an ALJ could not award benefits
based on a 100% disability when a prior ALJ had found that 22% of the
claimant’s disability actively pre~existed his injury. Id. at 522-23. Because a
permanent impairment rating forms the basis for an award of disability
benefits, it cannot be ignored any mo`re than a finding of pre~existing disability
can be. Thus, we agree with the ALJ, the majority of the Board, and the Court
of Appeals that the first ALJ’s finding that Fleming had a 13% permanent
impairment rating is res judicata and that baseline rating cannot be revised on
reopening absent factors that are not present herein. To be clear, on

reopening, an ALJ can find that a claimant’s permanent impairment rating has

‘ increased; however, an ALJ on reopening cannot revisit a predecessor’s finding

7

regarding a claimant’s permanent impairment rating. The initial permanent
impairment rating is the baseline which the ALJ must use on reopening to
determine if there has been any increasel We recognize that KRS 342. 125
states that ari-ALJ on reopening can find an increase or decrease in
“impairment.” However, as set forth below, “impairrnent” and “permanent
impairment rating,” although related, are not the same.

Having determined that the initial ALJ’s' finding that Fleming had a 13% -~
permanent impairment rating is not subject to alteration on reopening, we
must determine if` the ALJ’s finding ofa 23% permanent impairment rating on
reopening is appropriate Bef`ore undertaking that analysis, we s`et forth the
difference between “impairment,” as used in KRS 342.125, and “permanent
impairment rating.”

“Impairment” involves the “loss of use, or derangement of a body part,
organ system, or organ function due to a condition caused by the injury.”
Colwell v. _Dresser Instrument l)ii)., 217 S.W.Sd 213, 218 (Ky. 2006). Thus,
impairment involves a claimant’s ability to function. “Permanent impairment
rating” is the “percentage of whole body impairment caused _by the injury or
occupational disease as determined by the ‘Guides to the Evaluation of
Permanent lmpairment.”’_ -KRS 342.001 1 (35). A permanent impairment rating
-measures the impact an impairment has on a claimant’s ability to perform

activities of daily living and is used in the Workers"Compensation Act to

determine the extent of partial disability.2 Colwell, 217 S.W.3d at 217. Thus, a
permanent impairment rating is a. number used to quantify the extent to which
an injury impedes a worker’s ability to function‘.

On reopening, an ALJ may find that a claimant who was initially
permanently partially disabled is permanently totally disabled if the claimant
has established`his impairment has increased to the extent that he is no longer
able to work as defined in KRS 342.001 1(34). Id. at 218. ln such cases, the
ALJ is not required to find, and the claimant is not required to establish, that
he has an increase in permanent impairment rating. Id. On the other hand, in
order to find that a claimant who was initially permanently partially disabled
only has an increase in that partial disability, the ALJ must find that the .
claimant’s impairment and permanent impairment rating have increased. Id.
This is so because KRS 342. 125 requires a claimant to show an increase of
impairment on reopening and the extent of a claimant’s permanent partial
disability is inexorably tied to the claimant’s permanent impairment rating. Id.
Seelalso, KRS 342.730(1)(b). ln other words, to show a change from a
permanent partial disability to a permanent .total disability on reopening, a
claimant need only show an increase in impairment, i.e., additional'loss of the

use of body part, organ, etc. However, to show an increase in permanent

 

2 Pursuant to KRS 342.001 1(11)(0] and KRS 342.0011(36), a claimant must also
have a permanent impairment rating in order to qualify for permanent total disability.
Fleming has_not challenged the ALJ’s finding of only an increase in permanent partial
disability; therefore, our analysis focuses on permanent partial disability.

9

partial disability on reopening, a claimant must show both an increase in
impairment and in permanent impairment rating.

Applying the preceding to this matter, it is clear that Fleming has
established that he had an increase in permanent impairment rating. The
initial ALJ found that Fleming had a 13% permanent impairment rating, a
finding that is res judicata, i.e., “[a]n'issue that has been definitively settled by
judicial .decision.?’ Black's Law Dictionary (10th ed. 2014). _ The current ALJ
found that Fleming has a 23% permanent impairment rating. By using simple `
arithmetic, it is clear that Fleming"ha_s a 10% greater permanent impairment
rating now than he had in 2010.

We recognize LKLP’s argument that Dr. Vaughan stated that Fleming had
a 23% permanent impairment rating in 2010. However, Dr. Vaughan did not
evaluate Fleming in 2010, was not the finder of fact in 2010, and Was not the l
finder of fact on reopening lt is the fact finder’s opinion regarding a claimant’s
permanent impairment rating that controls, not the opinion of a physician. As
noted above, the ALJ was free to choose what evidence to believe. He chose to
believe Dr. Vaughan, who opined that Fleming has ja 23% permanent v
impairment rating, which is greater than the initial baseline permanent

jimpairment rating of 13%. As did the majority of the Board and the panel of
the Court of Appeals, we discern no abuse of discretion in the ALJ’s choice.

Further'rnore, we note that, had the AI..J chosen not to rely on Dr.
Vaughan’s permanent impairment rating, he could have relied on Dr.

Guberman’s permanent impairment rating or Dr. Brackett’s lumbar spine t

`10

permanent impairment rating, either of which would have resulted in a finding
of a 15% increase in permanent impairment rating.

l We note LKLP’s argument that Fleming “could have filed other evidence
of impairment during the original~litigation. He chose not to. He can not [sic]
now re-litigate by disguising evidence of a higher impairment at the time of the
original ALJ decision as new evidence of a worsening. The ALJ’s decision is
ultimately allowing 'such re-litigation.” While, that argument initially has some
appeal, its underlying premise is flawed. There was no evidence during the
initial litigation that Fleming had a 23% permanent impairment rating.
Certainly, Fleming may have been able to obtain such an opinion. If he had
done so and the AI.J had rejected that evidence, he would not now be able to
argue that the rejected permanent impairment rating amounted to new
evidence of an increase in permanent impairment rating. However, the same
holds true for LKLP, lt could have obtained an opinion that Fleming had a
permanent impairment rating other than 13%, but it chose not to do so. Just
as Fleming could not argue that rejected evidence supported an increase in
permanent impairment rating, LKLP cannot now argue that evidence that did
not exist at the time of the initial litigation is.binding on that issue before the
ALJ on reopening.

Having determined that Fleming established that he has an increased
permanent impairment rating, we must address whether Fleming established a
“[c]liange of disability as shown by objective medical evidence of worsening . . .

of impairrnent.” KRS 342.125, As this Court stated in Colwell, “greater

11

permanent impairment rating is objective medical evidence of a worsening of
impairment.” 217 S.W.3d`at 2 18'. Thus, when the ALJ found that Fleming has
an increased permanent impairment rating, _he simultaneously found that
Fleming had an increase in impairment Furthermore, we note that the initial
ALJ found that Fleming’s restrictions permitted him to return to the type of

n work he performed at the time of his injury. The ALJ on reopening found that

' _ Fleming is not capable of performing that type of Work, which is evidence of a

change in impairment That finding by the ALJ is supported by Fleming’s self-
reported restrictions, the restriction against travelling imposed by Dr.
Guberma.n, and Dr. Brackett’s opinion that Fleming cannot return to that type
of Work. Therefore, we discern no abuse of discretion in the ALJ’s finding that
Fleming has a change in' disability as shown by objective medical evidence of
worsening of impairment '
IV. CONCLUSION.

We discern no abuse of discretion in the AL._l’s finding that Fleming has
an increase in his permanent impairment rating, in his impairment, and in his
disability. Therefore, we affirm.

All sitting. All concur.

COUNS_EL FOR APPELLANT:

Hugh Brettelle Stonecipher

Ryan Thompson

Fogle Keller Purdy, PLLC

-COUNSEL FOR ARPELLEE, BRANDON FLEMING:

John Earl Hunt
12 `

