|MPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON lS DES|GNATED ”NOT TO BE PUBL|SHED."
PURSUANT TO THE RULES OF ClVlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OPIN|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlNDlNG PRECEDENT |N ANY OTHER
CASE lN ANY_COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERATION BY THE COURT lF THERE lS NO PUBL|SHED
OP|N|ON THAT WOULD ADEQUATELY ADDRESS THE lSSUE
BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
DEC|S|ON lN THE F|LED DOCUMENT AND A COPY OF THE
ENT|RE DEC|S|ON SHALL BE TENDERED ALONG WlTH THE
DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACT|ON.

RENDERED.: AUGUST 24, 2017
NOT TO BE PUBLISHED

§§upreme Tnnri of B§W AL

2016-sc-000131-Wc Alj ‘§ U__jj_!l%[/_~z_gm_[)¢mu oc

SLATER FORE CONSULTING, INC. APPELLANT

 

ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2015-CA-000778-WC
WORKERS’ COMPENSATION BOARD
NO. 12-WC-70061

LESLIE B. RIFE; HON. WILLIAM APPELLEES
J. RUDLOFF, ADMINISTRATIVE LAW

JUDGE; AND WORKERS’ COMPENSATION

BOARD

MEMCRANDUM OPINION OF THE COURT
AFFIRMING

After an Administrative Law Judge (ALJ) determined that Appellee, Leslie
B. Rife, a long-distance truck driver, Was entitled to permanent total disability
and medical benefits following work-related injuries, the Workers’
Compensation Board (the Board) and the Court of Appeals both aflirmed.
Having reviewed the record, we also affirm the findings and award of the ALJ.

v RELEVANT FACTS

During a chemical delivery to a Montana mine in June 2012 while

working for his employer, Slater Fore Consulting, Inc. (Slater), Rife tripped over

a large hose attached to his tanker truck and struck his head on a metal beam,

necessitating a trip to the local emergency room. He was treated for a
significant laceration on his-head, a laceration on his knee and also underwent
diagnostic testing. He testified that he had a difficult trip home to Tennessee
and sought further treatment there. His cervical complaints eventually led to a
cervical fusion and post-operative complications from that surgery resulted in a
stay in intensive care where he spent a week in a coma. While in the intensive
care unit, Rife fell when attempting to get up from a chair unassisted, injuring
his lower back. When more conservative treatment of the lower back condition
Was unsuccessful, he had a lumbar fusion. Rife has not returned to work and
sought workers’ compensation benefits for the cervical and lumbar injuries as
well as a neurocognitive disorder stemming from an alleged traumatic brain
' injury at the time of his June 2012 fall.

Before the ALJ, Rife presented the deposition testimony and report of Dr.
Jules Barefoot who concluded that Rife had a 28% impairment rating of his
cervical spine, with 10% of that rating attributed to an earlier 2008 cervical
fusion. Barefoot noted that Rife’s symptoms resolved following that earlier
surgery and he was working with no complaints or restrictions at the time of l
the June 2012 accident. Barefoot assessed a 32% impairment rating for the
lumbar spine, for a combined 44% impairment rating which he attributed
solely to the June 2012 accident. In Barefoot’s opinion, Rife was unable to
return to his prior truck driving position and was totally and permanently

occupationally disabled. The ALJ also had before him medical reports from

various treating physicians including Rife’s primary care physician and his
surgeon.

Slater presented the reports of various medical experts, none of whom
found Rife’s injuries permanently disabling. Dr. Thomas O’Brien concluded
Rife reached maximum medical improvement (MMI) in June 2012 and had no
permanent impairment, with any surgeries or conditions unrelated to the work
injury and solely attributable to pre-existing, non-work-related injuries or
conditions. Dr. Henry Tutt similarly found no permanent impairment from the
June 2012 accident, concluding Rife reached MMI in early July 2012. He
found Rife had an active 33% impairment as to his cervical and lumbar
conditions but attributed all of it to pre-existing conditions unrelated to the
Montana accident. Two expert witnesses provided reports regarding Rife’s
traumatic brain injury or cognitive deficits, an issue that was eventually
remanded to the ALJ by the Board and that is not currently before us.

After considering all of the evidence, the ALJ found Rife to be a credible
witness regarding his current condition and limitations and further found
Barefoot’s testimony persuasive and compelling The ALJ rejected Slater’s
argument that Rife suffered from a pre-existing active disability, determining
that that condition had fully resolved prior to June 2012, Ultimately, the ALJ
held that Rife had a 44% whole person impairment attributable to the work-
related accident and was permanently and totally disabled effective from and
after September 9, 2012, the date Rife last worked. The Board affirmed this

ruling in its entirety but remanded the issue of cognitive injury to the ALJ for a

3

determination as to the appropriate impairment rating attributable to that
injury.

On appeal, the Court of Appeals rejected Slater’s arguments that (l)
Rife’s back condition was solely the result of a pre-existing condition, not the
June 2012 fall; (2) Rife’s lumbar injury resulting from his fall in the hospital
was not causally related to the work accident; and (3) the ALJ erred in not
apportioning any of Rife’s disability to an active, pre-existing condition. Slater
appeals from the Court of Appeals’ opinion affirming the decision of the
Workers’ Compensation Board.

ANALYSIS

The ALJ is the fact-finder in workers’ compensation cases and is
entrusted with sole authority to determine the quality, character and
substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky.
1993). There must be substantial evidence of probative value supporting the
ALJ’s decision. Whittaker v. Rowland, 998 S.W.2d 479, 481-82 (Ky. 1999). On
appellate review, we defer to the ALJ’s decision unless we find the ALJ has b
overlooked or misconstrued controlling law or has flagrantly erred in assessing
the evidence. U.S. Bank Home Mortgage 1). Schrecker, 455 S.W.3d 382, 384 (Ky.
2014). Although we review matters of law de novo, findings of fact will be set
aside only if the evidence compels a contrary finding. Id.

Slater maintains that the ALJ erred in finding that Rife’s cervical
condition was attributable to the June 2012 work injury. Noting evidence of

record concerning Rife’s prior cervical spine issues, including a cervical

4

discectomy and fusion in 2008, Slater maintains that Rife’s neck complaints
are a result of degenerative changes, not acute trauma. Slater further
maintains that Rife has minimized his earlier complaints and the ALJ
inappropriater ruled that the cervical condition was a work-related injury
based solely on the claimant’s credibility. The evidence was undisputed that
Rife was working with no restrictions at the time of the June 2012 accident.

In fact, the ALJ did find Rife to be_a credible witness regarding his
medical history and condition but the ALJ further grounded his findings in the ‘
medical testimony of Barefoot. As noted, Barefoot assigned a 28% impairment
rating to the cervical spine but he also apportioned 10% of that to the 2008
cervical fusion. Thus, Slater errs in contending that the cervical spine finding
ignores Rife’s earlier neck issues because Barefoot specifically accounted for
any pre-existing condition in making his assessment There is certainly
evidence to the contrary from experts presented by Slater but sorting through
conflicting evidence is the province of the ALJ. Here there is substantial
evidence to support the cervical injury finding and the evidence, considered in
its entirety, does not compel a contrary finding. U.S. Bank Home, 455 lS.W.3d
at 384. Thus, the Board and Court of Appeals did not err in affirming the
ALJ’s decision on this issue. l

Next, Slater challenges the ALJ’s conclusion that Rife’s lumbar injury,
suffered when he fell in the intensive care unit of the hospital while recovering
from the December 2012 cervical surgery, is causally related to his work injury.

The ALJ relied on Pond Creek Collieries Co. v. La Santos, 212 S.W.2d 530 (Ky.

5

1948) and Elizabethtown Sportswear v. Stice, 720 S.W.2d 732 (Ky. App. 1986),
in finding that this lower back injury was compensable Both cases address
injuries occurring in the course of a patient’s treatment for a work-related
injury.

In Pond Creek, the claimant fell from a hoist car at a coal mine and
suffered multiple injuries including fractured ribs and a punctured lung that
led to his hospitalization 212 S.W.2d at 531. On his third day in the hospital,
he fell and x-rays revealed a hip fracture, an injury not previously identified.
Id. It was impossible to determine when the hip fracture occurred but this
Court’s predecessor concluded that regardless of whether it was part of the
original workplace injury or solely a result of the hospital fall it was still
compensable Id. at 532. “[E]ven if his hip was fractured when he fell from or
beside his hospital bed, this occurred during his medical treatment at a time
when he could not be held accountable for his acts, and as direct and
proximate result of the original injury suffered in an ‘accident arising out of
and in the course of his employment.”’ Id.

Almost forty years later, in Elizabethtown Sportswear, the Court of
Appeals addressed a case brought by the estate of a worker who suffered a
work-related back injury. 720 S.W.2d at 733. The worker was hospitalized
over a year following the injury for recurring back pain and a lumbar
myelogram was ordered. Id. Tragically, she suffered an allergic reaction to the
dye used in the procedure and died Within twenty-four hours. Id. Relying in

part on Pond Creek, the Elizabethtown Sportswear panel held that the widower

6

was entitled to death benefits for this work-related death. Id. at 734. The
court reasoned that an employee or her estate can recover for additional
disability (or death) suffered as a result of medical treatment for the work-
related injury. Id.
Slater summarizes what it perceives as the distinction between this case

and the foregoing cases as follows:

Here, there is no evidence that Appellee’s fall in the

hospital was in any way caused by his work injury or

the treatment he was receiving. The simple fact that

he fell while in the hospital does not lead to the

conclusion that the fall is a ‘direct and natural result’

of his treatment. There is a clear difference between

an injury that occurs during treatment and an injury

that is caused by the treatment. The hospital fall

must therefore be considered a subsequent intervening
cause and not ‘a direct and natural result’ of the work

injury.
Appellant’s Brief at pp. 15-16 (emphasis in original).

Here, as in Pond Creek, Rife was confined to the hospital following
cervical surgery necessitated by his work-related injury. While still in the
intensive care unit following a week-long coma, he stood to get up from a chair
and fell, injuring his lower back in a manner that required further surgery in
June 2013. We see no principled basis for distinguishing Rife’s situation from
that of the claimant in Pond Creek. The ALJ properly found the lumbar injury
to be compensable and, consequently, the Board and Court of Appeals
appropriately affirmed.

Slater’s third and final argument concerns Rife’s alleged pre-existing

condition as to both his neck and lower back. Slater insists that the ALJ erred

in not recognizing the evidence of prior problems Rife experienced with his neck
and lower back and then reducing any award accordingly. Both the Board and
the Court of Appeals noted that the ALJ correctly differentiated between
impairment and disability, an important distinction in determining permanent
total disability,

Impairment and disability are not synonymous. We

conclude, therefore, that an exclusion from a total

disability award must be based upon pre-existing

disability, while an exclusion from a partial disability

award must be based upon pre-existing impairment

For that reason, if an individual is working without

restrictions at the time a work-related injury is

sustained, a finding of pre-existing impairment does

not compel a finding of pre-existing disability with

regard to an award that is made under [Kentucky

Revised Statutes] 342.730(1)(a).
Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 183 (Ky. 2003).

Here there was certainly evidence of Rife’s prior neck and lower back
issues but he was never deemed disabled and he continued to work without
restrictions up to the date of his accident in Montana. Rife may well have had
a pre-existing impairment of his neck and lower back but that did not equate
with a pre-existing disability, Under the Roben‘s Bros. Coal standard, there
was no basis for reducing the permanent total disability award due to a pre-
existing disability and, accordingly, the ALJ did not err.

For the foregoing reasons, we affirm the Court of Appeals’ opinion

affirming the Workers’ Compensation Board’s decision in this matter.

All sitting. All concur.

COUNSEL FOR APPELLANT:

Bonnie Jo Hoskins

Carl Martin Brashear

Hoskins Law Offices, PLLC

COUNSEL FOR APPELLEE, LESLIE B. RIFE

Christopher P. Evensen
Evensen Law Office, LLC

