                                               RENDERED: NOVEMBER 2, 2017
                                                          TO BE PUBLISHED


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                              2017-SC-000031-WC



TOYOTA MOTOR MANUFACTURING,                                           APPELLANT
KENTUCKY, INC.


                  ON APPEAL FROM COURT OF APPEALS
v.                     CASE NO. 2015-CA-001762
                WORKERS' COMPENSATION NO. 06-WC-94736


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


              OPINION OF THE COURT BY JUSTICE VENTERS

                                  AFFIRMING

                                                           .   .
      Toyota Motor Manufacturing, Kentucky, Inc., appeals from an opinion of

the Court of Appeals which affirmed the decisions of the Workers'

Compensation Board (Board) and the Administrative Law
                                                   . Judge (ALJ)
                                                       .    .
                                                                 holding

thatr the claimant, Kathy Prichard, was entitled to reopen her workplace injury

claim almost seven years after her initial award of workers' compensation

benefits, but within four years of a subsequent order granting her additional

disability benefits. As grounds for relief Toyota contends that (1) Prichard's

motion to reopen was barred by the four-year limitation period contained in

KRS 342.125(3); and (2) Prichard failed to demonstrate through objective
 medical evidence a change in her disability indicating a. worsening of her ·

 impairment as required for reopening a claim under KRS 342.125(1)(d).

       For the reasons stated below we affirm the opinion of the Co"Qrt of

 Appeals.


                 I. FACTUAL AND PROCEDURAL BACKGROUND
       On March 14, 2007, Prichard filed a claim with the Department of

 Workers' Claims contending that, on March 16; 2005, she had sustained an

 injury to!her neck while working as an assembly line employee· at Toyota's

 Georgetown factory. As a result of her injury, Prichard was diagnosed with a

 cervical strain and degenerative disc disease in her neck area. On Noverriber

 13, 2007, the AW approved an award of permanent partial disability benefits

 based upon a permanent impairment rating of eight percent.         Prich~d
                                  .               .
 returned to work but left.after a few months due to continuing pain resulting

 from the original injury. tn an effort to alleviate Prichard's problem, in August

· 2008, Dr. James Bean performed surgery to fuse four of Prichard's cervical

 vertebrae.

    · In April 2009,_well within the four-year limitation period, Prichard filed a·

 motion to reopen   h~r   2007 award on the basis that her injury and the resulting

 impairment had worsened. In          Sept~mber   2011, the AW determined that

 Prichard was not totally disabled, but that her permanent partial disability

 rating had increased from eight percent to twenty-eight percent, based upon

 testimony indicating that Prichard could still perform sedentary work and that

 she suffered from non-work-related conditions.

                                             2
      Prichard continued to suffer pain, headaches, and impairment attributed

fo her initial work-place injury. After further evaluation, Dr.. Bean concluded in

April 2014 that Prichard's condition had further deteriorated in that she had

"an essentially immobile neck that would be unable to sustain routine neck

movements in an employed position for a full day's work." Dr. Bean concluded

th_at Prichard was unable to return to even sedentary work. Dr. Bean imposed

additional restrictions on Prichard's physical movements as a result of his

revised medical conclusions.

      On August 12, 2014, based upon Dr. Bean's latest evaluation, Prichard

moved to reopen the 2011 award. At the hearing, Prichard testified that the

pain in her neck had increased and her cervical range. of motion had decreased

since her first award. She stated that .she had last worked in 2008.

      In addition to Prichard's· testimony and the record of her extensive

medical history, the AW considered evidence from Dr. Bean, from Prichard's

primary care physician since 1999,. Dr. William Childers, and from Toyota's

expert medical witness, Dr. Timir Banerjee. Dr. Childers largely concurred

with Dr. Bean's determination that Prichard was unable to perform even

sedentary work because of her chronic pain and her need for strong pain-

relieving medications. In opposition to Prichard's motion, Dr: Banerjee

concluded that Prichard's condition had remained unchanged with an

impairment rating of eight percent   sine~   he first examined her in 2009.

      On May 20, 2015, the AW entered an opinion and award, concluding

that as a result of the further deterioration of Prichard's work-related cervical.

                                         3
condition, she was totally disabled. The AW based his decision,in part, upon

. what he described as the "persuasive, compelling. and reliable"
                                                              .
                                                                  medical

evidence. The Board and the Court of Appeals subsequently affirmed the AW's

decision. This appeal followed.


                            II. STANDARD OF      R~VIEW

      "An award or order of the administrative law judge . . . shall be

conclusive and binding as to all questions of fact .... " KRS 342.285(1).

Accordingly, .as the statutorily assigned fact-finder in this proceeding, the AW

has the 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) (citation

omitted).· Similarly, the AW has the sole authority to judge the weight and ·

inferences to be drawn from the evidence. Miller .v. East Kentucky

Beverage/Pepsico, Inc., 951 S.W.2d 329, 331 (Ky. 1997) (citation omitted). As

the fact finder, the AW "may reject any testimony and believe or disbelieve

various parts of the evidence, regardless of w1:1ether it comes from the same

witnes~ or the same adversary party's total proof." Magic Coal v. Fox, 19;

S.W.3d 88, 96 (Ky. 2000) (citation omitted).

      When reviewing a decision of the Board, we will affirm, absent a finding

that the Board has misconstrued or overlooked controlling law or has so

flagrantlY' erred in evaluating the ·evidence that a gross injustice has occurred.

Western Baptist.Hospital v. Kelly, 827 S.W:2d 685, 687-68.8 (Ky. 1992).




                                         4
       III. THE   ~EOPENING     WAS AUTHORIZED UNDER KRS 342.125(3)

       Except in circumstances not applicable in this case, KRS 342.125(3)

 provides. that "no claim shall be reopened more than four (4) years following .the

 date of the original award or order granting or denying benefits." Toyota .

 contends that because Prichard's original workers' compensation award .

 occurred in 2007, her 2014 mqtion to reopen was time-barred by the four-year

 limitation period stated in KRS 342.125(3). Toyota's interpretation of the

' statutory language depends upon the assumption that the adjective "original"

pertains to the entire phrase, "award or order granting or denying benefits."

 (Ef11phasis added.) This Court   m~ifestly   rejected that interpretation in Hall· v.

Hospitality Resources, Inc., 276 S.W.3d 775 (Ky. 2008).

       In Hall, we explained that, based upon the us~ of the language in other

provisions of KRS_ 342.125, the legislature recognized an "original award" as

something separate and distinct from a subsequent "order granting or denying

benefits" and intended to allow a four-year period for the reopening of an order .

granting or denying benefits. 276 S:W.3d at 784-785. We need not repeat the

analysis here. It suffices to say, that we are not persuaded that our decision in

"Hail misinterpreted or misstated the legislative intent ofKRS 342.125(3).

      Moreover, we cannot fail to observe that several legislative sessions have

come and gone in the nine years since Hall was rendered, and the legislature

has not acted to amend the statute. "[T]he. failure of.the legislature to change a

known judicial interpretation of a statute [is] extremely persuasive evidence of

the true legislative intent. There is a strong implication that the legislature


                                         5
    agrees with a prior court interpretation of its statute when it does not amend

     the statute interpreted." Rye v. Weasel, 934 S.W.2d.257, 262 (Ky.. 1996)

     (citation omitted). Accordingly, we reiterate that when an order granting or

    denying workers' compensation benefits has been entered subsequent to the

    date of the original award, the four-year limitation period prescribed by KRS

    342.125(3) for reopening the claim is calculated from the later date, rather

    · than from the original award.

           Toyota argues th.at even if Hall was correctly decided, factual differences.

    distinguish this case from Hall and; therefore, compel a different result in the

    application of KRS 342.125(3). We acknowledge those factual differences.

    They pertain to the nature of the injury for which the original award in each

    case was made. The claimant in Hall was awarded temporary total disability

    benefits. "[G)iven the fact that Hal.I was still receiving [temporary total

    disability) benefits and had not r~ached [maximum medical improvement) by

    the time the four-year limitation allegedly ran, 'she could not have made the

. pri.ma facie showing
                  '
                       as is required upon the filing of a motion to reopen prior
                                                                              '
                                                                                  to
I           '                                        '




    its alleged expiration date."· 276 S.W.3d at 781. Here, Prichard was not

    'hampered by thatcircumstance. But the obstacles Hall faced in altering her

    disability benefits played no role in our. interpretation of the statute in Hall.

    The obstacles merely .illustrated an injustice arising from the alteniative

    interpretation of KRS 342.125(3)-the interpretation now favo.red by Toyota.

    Indeed, KRS 342.125(3)    ha~   no language that would authorize us to adopt one

    interpretation of the statute.for·claimants in Prichard's f;ituation and another

                                              6
interpretation for claimants situated as in Hall. Toyota's analysis of KRS

342.125(3) does not offer arguments beyond those we considered and rejected

in Hall.

       In summary,-we conclude that Prichard's 2014 motion to reopen the

2011 order granting benefits was timely filed within the.four-year period

provided by KRS   342~ 125(3).   ·

      IV. THE REOPENING WAS AUTHORIZED 'UNDER KRS 342.125(1)(d)
                                         .                 .

      Toyota also claims that Prichard failed to meet the burden imposed by

KRS 342.125(1)(d) for reopening her claim by demonstrating a "[c]hange of

disability as shown by objective medical evidence of worsening or improvement
                                                 I

of impairment due to   a condition caused by the injury since the date of the
award or order. "l The company also argues that the AW decided the question

based upon medical evidenctr which-predated the 2011 opinion and award.

      We are unpersuaded by Toyota's arguments because recent "objective

medical evidence" was, in fact, presented to support the AW's finding of a

worsened impairment ofa condition caused by her work-related injury. The

updated medical conclusions of Dr. Bean and Dr. Childers. supported the

conclusion that Prfohard's co'ndition had worsened from partial disability to

total disability between the dates of the original award and the first reopening, .

and from then until the filing of the second reopening .. The AW expressly


      ·1 KRS 342.125(1) provides four grounds for reopening a claim but only
subsection (d) is applicable here. The other grounds for reopening, (a) fraud, (b)
newly-discovered evidence which could not have been discovered with the exercise of
due diligence, and (c) mistake, have not been invoked here.

                                             7
 referenced the determinations of Dr. Bean and Dr. Childers, describing it as

 "the persuasive, compelling and reliable medical evidence." Crucially, both

 doctors clearly stated that the onset of Prichard's inability to perform even

 sedentary work occurred a.fterthe·2011 order.2 These updated expert

 professional determinations by Dr. Bean and Dr. Childers manifestly qualify as

 "objective.medical evidence of [the] worsening" of "a condition caused by the

 injury since the date of the award or order."

      ·To be sure, Dr. Bean did indeed reference, and therefore, we may

 presume his conclusions were influenced by, a functional capacity evaluation·

 which predated the 2011 AW opinion and        award~   Toyota criticizes the use of

this information as constituting medical evidence of a change in Prichard's

condition. However, this was just one aspect of Dr. Bean's overall evaluation of

Prichard's changing physical impairment, and it is not unusual for a thorough

physician to make use of prior medical evaluations in a later evaluation setting.

The bottom line, however, is that the previous proceeding established a twenty-·

eight percent impairment rating under which Prichard could continue to work

in a sedentary work environment, whereas later medical evidence supported

. the AW's finding ofa subsequent onset of total disability, characterized by

.Prichard's inability to perform even sedentary work. Substantial evidence

supports the AW's determination that objective medical evidence was present

to support the reopening.



       2 The 2011 order concluded Prichard's partial disability had increased but
rejected her claim that she had, by then, become totally disabled.

                                          8
       We are mindful that Dr. Banerjee expressed the opinion that no objective.

change in Prichard's impairment occurred. Given the sufficiency of the

evidence presented by Drs. Bean arid Childers, Dr. Banerjee's opposing view

constitutes merely a battle of the experts, the resolution of which is properly

left. to the AW as the individual ·privileged to view first-hfill:d. the totality .of the

evidence and the .credibility of witnesses.· Square D. Co., 862 S.W.2d at 309

("Where, as here, the medical evidence is conflicting, the question
                                                                  . of which
                                                                        .

evidence to believe is ·the exclusive province of the AW."). The existence of

conflicting medical evidence in the record, by itself, does not render the AW's

decision erroneous.

                                     V. CONCLUSION
      For the foregoing reasons the decision of the Court of Appeals is affirmed.

      All sitting. Miriton, C.J.; Cunningham, Hughes, Keller, and Wright, JJ.,

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




COUNSEL FOR APPELLANT:

Kenneth J. Dietz
Emily Walters
Lucas & Dietz, PLLC

COUNSEL FOR APPELLEE KATHY PRICHARD:

Roy Church Gray III
331 St. Clair. Street
Frankfort, KY 40601



                                            9
 COUNSEL FOR APPELLEE HON. WILLIAM J. RUDLOFF, ADMINISTRATIVE
 LAW JUDGE:

William J. Rudloff
Administrative Law Judge


COUNSEL FOR APPELLEE WORKERS.' COMPENSATION BOARD:

  DWight Taylor Lovan
. Executive Director
  Office of Workers' Claims




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