RENDERED: OCTOBER 16, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0221-WC
TIME WARNER CABLE, INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-15-69813
RICKY SMITH;
HONORABLE JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, GOODWINE, AND JONES, JUDGES.
ACREE, JUDGE: Time Warner Cable appeals the Workers’ Compensation
Board’s January 17, 2020 order upholding the Administrative Law Judge’s (ALJ)
decision assessing Ricky Smith as permanently, totally disabled. Time Warner
asserts the ALJ abused its discretion by failing to rely on substantial evidence.
Finding no error, we affirm.
BACKGROUND
For twenty-eight years, Smith worked for Time Warner as a
maintenance technician. His position involved fixing outages by climbing utility
poles. This means Smith had to lift, pull, push, stretch, crawl, carry, and bend
multiple times a day. Smith only ever knew manual labor in his career and only
had a high school education. He worked for cable companies since 1989 and prior
to his employment, worked at a feed store, loading feed and fertilizer.
On August 24, 2015, he felt a pop in his back while carrying an
extension ladder from his truck to a pole. He fell to the ground in severe pain and
the ladder landed on his shoulder and neck. The fall resulted in Smith being
diagnosed with multiple injuries to his back, shoulder, and neck. Over the years,
he was diagnosed with multiple physical ailments, including, but not limited to:
low back pain, disc degeneration, intervertebral disc disorder, cervicalgia, tightness
in range of motion, AC joint arthrosis, and disc herniation. In addition to his
physical diagnoses, he was also assessed as having psychological problems such
as: anxiety, probable symptom magnification, depressive disorder, and somatic
symptom disorder.
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Because of his injuries, Smith filed for workers’ compensation
benefits. The ALJ held a hearing on September 5, 2018, and ultimately found
Smith permanently, totally disabled due to his physical and psychological
condition. Time Warner appealed to the Workers’ Compensation Board, which
upheld the ALJ’s decision. This appeal followed.
STANDARD OF REVIEW
The ALJ is the finder of fact in workers’ compensation matters. Ira
A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). In that regard,
KRS[1] 342.285(2) provides that the Board shall not
reweigh the evidence and substitute its judgment for that
of the ALJ with regard to a question of fact. The standard
of review with regard to a judicial appeal of an
administrative decision is limited to determining whether
the decision was erroneous as a matter of law. American
Beauty Homes v. Louisville & Jefferson County Planning
& Zoning Commission, Ky., 379 S.W.2d 450, 457 (1964).
Where the ALJ determines that a worker has satisfied his
burden of proof with regard to a question of fact, the issue
on appeal is whether substantial evidence supported the
determination. Special Fund v. Francis, Ky., 708 S.W.2d
641, 643 (1986). Substantial evidence has been defined as
some evidence of substance and relevant consequence,
having the fitness to induce conviction in the minds of
reasonable people. Smyzer v. B.F. Goodrich Chemical
Co., Ky., 474 S.W.2d 367 (1971). Although a party may
note evidence which would have supported a conclusion
contrary to the ALJ’s decision, such evidence is not an
adequate basis for reversal on appeal. McCloud v. Beth-
Elkhorn Corp., Ky., 514 S.W.2d 46 (1974). The crux of
the inquiry on appeal is whether the finding which was
1
Kentucky Revised Statutes.
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made is so unreasonable under the evidence that it must be
viewed as erroneous as a matter of law. Special Fund v.
Francis, supra, at 643.
Id.
ANALYSIS
Time Warner argues the ALJ erred in finding, without substantial
evidence, that Smith was permanently, totally disabled. After review of the record,
we are not persuaded by Time Warner’s argument.
Time Warner claims Smith’s psychological condition was the sole
reason he was found to be permanently, totally disabled. That is ill-founded. The
ALJ stated Smith’s physical injuries alone were not enough to find him
permanently, totally disabled, but, when taken in conjunction with his
psychological injuries, he was disabled. Additionally, the ALJ considered Smith’s
“age, education level, vocational skills, medical restrictions, [and] emotional state”
to determine an award.
The ALJ’s determination is supported by substantial evidence. It is
undisputed that Smith sustained physical, work-related injuries. Additionally, two
doctors assessed Smith to be psychologically impaired, although their opinions
differed in their details. One doctor noted a 5% impairment rating, whereas
another doctor assessed a 60% impairment rating, with no restrictions. The doctors
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who assessed Smith’s condition had a near unanimous decision that he could not
return to the work he performed for the past twenty-eight years.
The ALJ found Smith’s injuries left him with pain that is not
adequately managed and determined he is unlikely to find and continue
employment. On conflicting evidence, the ALJ has sole discretion to determine
the quality, character, and substance of evidence. Burton v. Foster Wheeler Corp.,
72 S.W.3d 925, 929 (Ky. 2002) (citing KRS 342.285); see also KRS 342.290.
This Court cannot reverse a decision simply because there may be evidence of
record that conflicts with the decision; the test is whether there is evidence of
substance to support it. The ALJ was well within its bounds to assess a permanent,
total disability on the combined effects of the physical and psychological
conditions. For the foregoing reasons, we affirm the Board’s January 17, 2020
order affirming the ALJ’s decision.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE RICKY
SMITH:
Rodney J. Mayer
Louisville, Kentucky Bruce R. Bentley
London, Kentucky
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