IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
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RENDERED: APRIL 29, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2019-SC-0683-WC
WHAS-TV APPELLANT
V. ON APPEAL FROM COURT OF APPEALS
NO. 2019-CA-0904 WC
WORKERS’ COMPENSATION BOARD NO. 15-WC-60076
BRYAN DERBY; APPELLEES
HON. STEPHANIE L. KINNEY, ALJ; AND,
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
WHAS-TV appeals the Court of Appeals’ opinion affirming the decision of
both the Workers’ Compensation Board (“Board”) and Administrative Law
Judge (“ALJ”) determining that Bryan Derby’s (“Derby”) cervical fusion surgery
was compensable. WHAS-TV contends that the ALJ reached a conclusion not
supported by substantial evidence in the record. We disagree, and we affirm.
I. FACTUAL BACKGROUND
In 2015, Derby worked as a cameraman for WHAS-TV. This position
required him to carry and hold camera equipment on his shoulder for extended
periods of time. That September, Derby felt a severe, shooting pain through his
neck and right shoulder while carrying his camera and equipment back to his
vehicle.
Derby first sought treatment with his family doctor, Dr. Dhamy
Sivamohan. Dr. Sivamohan diagnosed degenerative disc disease in Derby’s
lumbar spine and cervical intervertebral disc. Despite treatment, Derby’s neck
and shoulder pain steadily progressed. Dr. Sivamohan concluded that Derby
suffered cervical radiculopathy as a result of his degenerative joint disease.
Derby next met with Dr. Ty Richardson, who initially treated Derby’s
shoulder. At a follow-up appointment in December 2015, Dr. Richardson
noted that Derby reported improvement in his right shoulder but also
increased numbness and tingling pain in his right forearm and fingers. Dr.
Richardson discovered that Derby’s cervical spine was stiff and diagnosed
cervical stenosis with radiculopathy. At this point, Dr. Richardson
recommended referral to either a spine specialist or neurosurgeon.
Upon referral, Derby met with Dr. Venu Vemuri. Dr. Vemuri diagnosed
severe cervical stenosis in the cervical spine and recommended cervical fusion
surgery. Shortly thereafter, Dr. Warren Bilkey performed an independent
medical evaluation (IME). Dr. Bilkey reviewed Derby’s work and medical
history, noting a gradual onset of shoulder and neck pain related to the
carrying of camera equipment. Ultimately, Dr. Bilkey concluded that Derby
suffered a work-related injury to the neck and right shoulder in September
2015 and assigned an impairment rating for the neck and shoulder area
pursuant to AMA guidelines.
Two physicians subsequently disagreed with Dr. Bilkey’s assessment.
Dr. Michael Best disagreed with the diagnosis of cervical stenosis. He reported
2
that he suspected that arthritis and aging better explained Derby’s symptoms.
Similarly, Dr. Michael Moskal concluded that Derby’s condition was likely a
result of natural aging and unrelated to his work for WHAS-TV. Dr. Bilkey,
testified by deposition and filed a supplemental report stating that his opinion
had not changed in the time since his initial evaluation.
Based on the foregoing evidence, the ALJ issued an Interlocutory Opinion
finding that Derby sustained an injury to his right shoulder and neck during
his work for WHAS-TV. The ALJ determined these injuries resulted from
cumulative trauma that manifested in September 2015. The ALJ awarded
medical benefits, including but not limited to the recommended cervical fusion
surgery, and held the case in abeyance pending treatment.
Derby underwent further medical examination following the ALJ’s
interlocutory order. Dr. Jules Barefoot examined Derby one year after the
cervical fusion procedure. Dr. Barefoot noted that Derby reported significant
improvement in neck and arm pain following the procedure but observed
continuing right shoulder pain. Several months later, Dr. Moskal performed a
second evaluation on Derby upon Derby’s complaints of neck pain and stiffness
while sanding and painting in his house. Dr. Moskal opined that the
sensations, and the related cervical fusion, were not related to Derby’s work
activities. Finally, Dr. Richardson testified by deposition regarding Derby’s
condition. He believed that Derby’s neck condition was dormant prior to his
injury in September 2015. Dr. Richardson further opined that Derby’s work
3
activities were a contributing factor in rendering this latent condition
symptomatic and requiring subsequent medical treatment.
Ultimately, the ALJ reaffirmed her previous finding that the neck and
right shoulder injuries were related to the September 2015 injury, entitling
Derby to future medical benefits (including the cervical fusion surgery). The
ALJ noted that WHAS-TV’s failure to timely file a Form 111 constituted an
admission of causation on their part.1 The ALJ further determined that even if
WHAS-TV properly filed its response, Derby had provided sufficient evidence to
support a finding of causation.
WHAS-TV then appealed to the Board, which affirmed the ALJ’s order.
The Board found that the ALJ reasonably reached a conclusion supported by
substantial, expert medical testimony notwithstanding the evidence to the
contrary. The Court of Appeals affirmed the decision of the Board.
II. ANALYSIS
In reviewing an ALJ’s order, an appellate court must consider whether
the decision is supported by substantial evidence.2 Further, this Court will
only correct the Board when it “perceives the Board has overlooked or
1 We note that WHAS-TV did fail to timely file its Form 111 response. Pursuant
to regulation, the failure to file a timely response results in an admission of all
allegations of the application. 803 Kentucky Administrative Regulation (KAR) §
25:010. Both the Board and the Court of Appeals addressed the merits of WHAS-TV’s
appeal in spite of this procedural default. Likewise, we choose to address the merits of
this case.
2 Wolf Creek Colleries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
4
misconstrued controlling statutes or precedent, or committed an error in
assessing the evidence so flagrant as to cause gross injustice.”3 The purpose of
review by this Court is to address novel questions of statutory construction;
reconsider precedent; or review a question of constitutional magnitude.4
WHAS-TV argues that the ALJ’s decision was not supported by
substantial evidence. It raises two specific contentions in support of this claim:
(1) the expert opinions favoring Derby relied on incomplete and inaccurate
facts, and (2) the ALJ impermissibly rendered its own medical conclusions
unsupported by the record.
By statute, the ALJ is the sole arbiter of questions of fact.5 Pursuant to
this authority, the ALJ possesses the discretion to determine the quality,
character, and substance of the evidence.6 The mere existence of evidence that
supports a different conclusion is inadequate to support reversal on appeal.7
When, however, the factual issue at hand must properly be determined by a
medical expert, the ALJ may not disregard the uncontradicted conclusion of a
medical expert and reach a different conclusion.8 Further, if a physician’s
3 Active Care Chiropractic, Inc. v. Rudd, 556 S.W.3d 561, 564 (Ky. 2018)
(internal quotations and citations omitted).
4 Id.
5 See Kentucky Revised Statute (KRS) 342.285(1).
6 Am. Greetings Corp. v. Bunch, 331 S.W.3d 600, 602 (Ky. 2010) (internal
footnotes omitted) (emphasis added).
7 Id.
8 Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842 (Ky. 2004) (internal
quotations and citations omitted) (emphasis added).
5
opinion is based on a “substantially inaccurate or largely incomplete” medical
history, that opinion cannot constitute substantial evidence.9
WHAS-TV first contends that the opinions of Drs. Bilkey and Barefoot are
based upon inaccurate and incomplete findings. Specifically, WHAS-TV asserts
that both opinions and the ALJ’s decision fails to account for the fact the
December 2015 finding of nerve pain through the forearm and fingers was a
separate and distinct finding from the prior examination of neck and shoulder
pain. WHAS-TV essentially argues that the December incident was a separate,
outside of work injury or condition unrelated to the September injury.
At bottom, this case involved a contest between conflicting medical
opinions. The record demonstrates that Dr. Bilkey reviewed the medical
records of Dr. Vemuri and the IME findings of Drs. Best and Moskal. Dr.
Bilkey specifically disagreed with Drs. Best and Moskal as to the work-
relatedness of the injury and the best course of treatment moving forward.
Given his review of the medical evaluations preceding his involvement, it is
reasonable to conclude that he was aware of emergence of the symptoms in
Derby’s forearm and finger after the initial injury at the time of his evaluation.
The findings of Drs. Richardson and Barefoot similarly support the
conclusion that Derby’s issues with his cervical spine were related to the
September injury. Dr. Richardson characterized the issues as “dormant” prior
to Derby’s injury on the job. Dr. Barefoot, in turn, found permanent injuries to
the cervical spine and shoulder. There is no support in the record that any of
9 Id.
6
these physicians conducted their evaluations with incomplete or inaccurate
findings.
WHAS-TV insists that our decision in Cepero v. Fabricated Metals Corp.
guides the resolution of this case.10 Cepero, however, presented much more
severe gaps in the evaluating physician’s knowledge of the claimant’s medical
history. There, a workers’ compensation claimant failed to disclose a prior,
severe knee injury to several treating physicians.11 On review, we determined
that the ALJ’s order awarding benefits to the claimant was not based on
substantial evidence because it relied heavily on the opinions of the physicians
who were not aware of the prior injury.12 The situation here is much different.
The ALJ relied on the reports of physicians who had considered multiple
reports presenting contrasting findings.
Although WHAS-TV identifies multiple sources of evidence supporting a
different conclusion than the ALJ ultimately reached, Derby also presents
substantial evidence in support of his claim. Thus, the ALJ appropriately
exercised her discretion in determining which evidence to rely upon and her
conclusions rely upon a reasonable basis.
WHAS-TV next argues that the ALJ impermissibly reached conclusions
on causation unsupported by the medical evidence. In particular, WHAS-TV
takes issue with the ALJ’s conclusion that symptoms investigated in December
2015 progressed from the September 2015 injury. It insists that this
10 132 S.W.3d 839 (Ky. 2004).
11 Id. at 840-842.
12 Id. at 843.
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conclusion was a medical judgment not supported by the testimony of a
medical professional.
We disagree. Multiple evaluations determined that the numbness and
pain in Derby’s forearm and neck were related to issues in his cervical spine.
Dr. Richardson found that Derby’s work activities were a contributing factor of
this condition and Dr. Bilkey determined that Derby’s work activities were a
significant factor in rendering his degenerative condition symptomatic.
Considered as a whole, these evaluations constituted ample medical evidence
for the ALJ to conclude that the cervical fusion surgery, intended to address
these issues, was work-related and compensable.
III. CONCLUSION
The ALJ relied on the assessments of multiple qualified physicians in
determining Derby’s neck surgery to be compensable. Moreover, there is no
suggestion that the physicians relied upon an incomplete or inaccurate medical
history in rendering their assessments. This constituted substantial evidence
supporting the award of compensation. Accordingly, we affirm.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Walter E. Harding
Boehl Stopher & Graves, LLP
COUNSEL FOR APPELLEES:
Chad Jennings
Jennings Law Offices
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COUNSEL FOR THE WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvery
Hon. Stephanie Letitia Kinney
Administrative Law Judge
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Whas-Tv v. Bryan Derby
Combined Opinion