RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1587-WC
WEBSTER COUNTY COAL, LLC APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NOS. 17-WC-94604, 18-WC-01335,
AND 18-WC-01336
DAVID SEXTON; TONYA
MICHELLE CLEMONS,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.
DIXON, JUDGE: Webster County Coal petitions for review of the Workers’
Compensation Board (Board) opinion entered November 25, 2020, affirming the
opinion, award, and order entered July 3, 2020, by Administrative Law Judge
(ALJ) Jeff V. Layson, III and order on reconsideration by ALJ Tonya M.
Clemons. Following review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On February 6, 2017, David Sexton was employed by Webster
County Coal as a mechanic roper performing underground maintenance. He was
driving an underground vehicle, traveling at approximately seven to eight miles per
hour, when he collided with the continuous miner machinery he was en route to
repair. He pried the steering wheel of his vehicle up and attempted to get out. He
fell to the ground; however, his left foot remained wedged under the brake pedal.
Sexton was transported from the scene of the accident to a local emergency room
where he complained of neck, back, chest, and lower left extremity pain. He
underwent physical therapy and eventually had left foot surgery. Following the
surgery, Sexton developed two blood clots, as well as complex regional pain
syndrome (CRPS).
Sexton filed multiple workers’ compensation claims, which were later
consolidated in this action. After a formal hearing was held, the ALJ entered a
meticulous and comprehensive 22-page opinion, award, and order finding Sexton
permanently and totally disabled and awarding him permanent income and medical
benefits. Webster County Coal petitioned the ALJ to reconsider the opinion,
award, and order. On July 31, 2020, the ALJ entered a six-page, single-spaced
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order on reconsideration denying “all issues except for omission of identification
of evidence contradicting medical treatment and a typographical error[.]”
Thereafter, Webster County Coal appealed to the Board. On November 25, 2020,
the Board entered a 16-page opinion affirming the ALJ, and this petition for review
followed.
STANDARD OF REVIEW
The appropriate standard of review for workers’ compensation claims
was summarized in Bowerman v. Black Equipment Company, 297 S.W.3d 858,
866-67 (Ky. App. 2009).
Appellate review of any workers’ compensation decision
is limited to correction of the ALJ when the ALJ has
overlooked or misconstrued controlling statutes or
precedent, or committed an error in assessing the
evidence so flagrant as to cause gross injustice. Western
Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992). Our standard of review differs in regard to
appeals of an ALJ’s decision concerning a question of
law or a mixed question of law and fact vis-à-vis an
ALJ’s decision regarding a question of fact.
The first instance concerns questions of law or mixed
questions of law and fact. As a reviewing court, we are
bound neither by an ALJ’s decisions on questions of law
or an ALJ’s interpretation and application of the law to
the facts. In either case, our standard of review is de
novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.
App. 2001); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.
App. 1998). De novo review allows appellate courts
greater latitude in reviewing an ALJ’s decision.
[Purchase Transp. Servs. v. Estate of Wilson, 39 S.W.3d
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816, 817-18 (Ky. 2001); Uninsured Emp’rs’ Fund v.
Garland, 805 S.W.2d 116, 117 (Ky. 1991)].
The second instance concerns questions of fact.
[Kentucky Revised Statutes (KRS)] 342.285 designates
the ALJ as finder of fact, and has been construed to mean
that the factfinder has the sole discretion to determine the
quality, character, weight, credibility, and substance of
the evidence, and to draw reasonable inferences from the
evidence. Paramount Foods, Inc. v. Burkhardt, 695
S.W.2d 418, 419 (Ky. 1985); [McCloud v. Beth-Elkhorn
Corp., 514 S.W.2d 46, 47 (Ky. 1974)]. Moreover, an
ALJ has sole discretion to decide whom and what to
believe, and may reject any testimony and believe or
disbelieve various parts of the evidence, regardless of
whether it comes from the same witness or the same
adversary party’s total proof. Caudill v. Maloney’s
Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
KRS 342.285 also establishes a “clearly erroneous”
standard of review for appeals concerning factual
findings rendered by an ALJ, and is determined based on
reasonableness. Special Fund v. Francis, 708 S.W.2d
641, 643 (Ky. 1986). Although an ALJ must recite
sufficient facts to permit meaningful appellate review,
KRS 342.285 provides that an ALJ’s decision is
“conclusive and binding as to all questions of fact,” and
that the Board “shall not substitute its judgment for that
of the [ALJ] as to the weight of evidence on questions of
fact[.]” Shields v. Pittsburgh & Midway Coal Mining
Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short,
appellate courts may not second-guess or disturb
discretionary decisions of an ALJ unless those decisions
amount to an abuse of discretion. [Medley v. Bd. of
Educ., Shelby Cty., 168 S.W.3d 398, 406 (Ky. App.
2004)]. Discretion is abused only when an ALJ’s
decision is arbitrary, unreasonable, unfair, or unsupported
by sound legal principles. Downing v. Downing, 45
S.W.3d 449, 454 (Ky. App. 2001).
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...
Generally, “arbitrariness” arises when an ALJ renders a
decision on less than substantial evidence, fails to afford
procedural due process to an affected party, or exceeds
her statutory authority. [K & P Grocery, Inc. v.
Commonwealth, Cabinet for Health Servs., 103 S.W.3d
701, 703 (Ky. App. 2002)].
Substantial evidence is “that which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in the mind of a
reasonable person.” Bowling v. Nat’l Res. & Envt’l Prot. Cabinet, 891 S.W.2d
406, 409 (Ky. App. 1994). Our standard of review requires we show considerable
deference to the ALJ and the Board.
LUMBAR INJURY
Webster County Coal first argues the ALJ erred in finding that Sexton
sustained a lumbar injury during the February 6, 2017, work-related incident.
Webster County Coal claims the evidence does not support such a finding;
Sexton’s initial treatment records do not contain lumbar spine complaints; a
subsequent MRI of Sexton’s lumbar spine only showed degenerative rather than
acute changes; and Sexton had a significant pre-existing thoracolumbar orthopedic
injury from 2013.
These arguments were addressed by the ALJ in the order on
reconsideration. The ALJ noted that Webster County Coal stipulated to the work-
related injury on February 6, 2017, at the final hearing and did not move to set
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aside that stipulation. Thus, the ALJ correctly found the parties and the ALJ are
bound by the stipulation. Osborne v. Pepsi-Cola, 816 S.W.2d 643, 644 (Ky. 1991)
(citing Wagoner v. Hopkins, 531 S.W.2d 511 (Ky. 1975)).
Also, in the order on reconsideration, the ALJ found, in addition to the
stipulation, the prior ALJ explicitly adopted the medical opinions of Dr. William
A. Ante—one of Sexton’s treating physicians—and Dr. Jeffrey A. Uzzle—who
conducted an Independent Medical Evaluation (IME) of Sexton—in finding a
work-related low back injury in the opinion, award and order. Medical records
from Dr. Ante were introduced into evidence, and he was deposed on January 22,
2020. Dr. Ante testified that Sexton “had complaints of back pain as a result of the
work injury. He denied any consistent back pain prior to that work injury and has
had consistent back pain and related symptoms since then.” Dr. Ante’s records and
testimony provide a causal link between Sexton’s current back pain and this
accident. Dr. Uzzle’s report dated October 27, 2018, following the IME was also
made part of the record. The report specifically noted Sexton’s prior back injury in
2013, but also attributed Sexton’s current back pain to this accident. Dr. Uzzle
opined that the prior injury had resolved and Sexton’s “chronic low back pain has
been aggravated by this 2/6/17 work injury.” Additional medical records were
provided from the date of the accident indicating a back injury, including a lumbar
CT with a history reading, “Mining accident. Back injury, initial encounter.
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Thoracic spine pain. Lumbar spine pain.” Accordingly, the Board correctly
determined the ALJ acted within his authority in finding that Sexton sustained a
back injury from this accident. This finding is supported by substantial evidence
and will not be disturbed.
COMPLEX REGIONAL PAIN SYNDROME (CRPS)
Webster County Coal next argues the ALJ erred in finding Sexton has
CRPS based on Drs. Ante’s and Uzzle’s opinions, claiming they were either not
based on the AMA Guides1 or not based on the correct version of the AMA
Guides. Under KRS2 342.0011(35) and KRS 342.0011(37), impairment ratings in
workers’ compensation cases for physical injuries are determined by the Fifth
Edition of the AMA Guides.
Although Dr. Uzzle mentioned and referred to the Sixth Edition of the
AMA Guides in his report, he specifically stated that he utilized the Fifth Edition
in assigning Sexton’s impairment ratings, including the impairment rating for
CRPS. Dr. Ante only referenced the Fifth Edition in his reports, dated September
18, 2019, and October 6, 2019, assigning Sexton’s impairment ratings for his
disabilities, including CRPS. Thus, Webster County Coal’s argument that these
1
Guides to the Evaluation of Permanent Impairment, Fifth Edition, Linda Cocchiarella &
Gunnar B. J. Anderson, American Medical Association (AMA Press 2000).
2
Kentucky Revised Statutes.
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findings are not in accordance with the AMA Guides, and by extension fail to
constitute substantial evidence, is without merit.
We further note the case herein is factually distinguishable from Jones
v. Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006),
which Webster County Coal cites in its argument. In Jones, the doctor’s findings
were not in accordance with the AMA Guides, as that doctor assigned a much
higher impairment rating for the condition than provided for by the AMA Guides.
Here, the impairment ratings were based on and in line with the appropriate
version of the AMA Guides, and the ALJ was entitled to rely upon them.
PERMANENT TOTAL DISABILITY (PTD)
Under Kentucky’s Workers’ Compensation Act,3 “‘Permanent total
disability’ means the condition of an employee who, due to an injury, has a
permanent disability rating and has a complete and permanent inability to perform
any type of work as a result of an injury[.]” KRS 342.0011(11)(c). “‘Work’
means providing services to another in return for remuneration on a regular and
sustained basis in a competitive economy[.]” KRS 342.0011(34).
Here, the ALJ clearly complied with the law as set forth in City of
Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015). In that case, the Court held:
an ALJ is required to undertake a five-step analysis in
order to determine whether a claimant is totally disabled.
3
KRS Chapter 342.
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Initially, the ALJ must determine if the claimant suffered
a work-related injury. Here, the parties stipulated that
Stumbo suffered a work-related injury; therefore, the
ALJ was not required to make that finding. Next, the
ALJ must determine what, if any, impairment rating the
claimant has. Here, the ALJ listed the various
impairment ratings assigned to Stumbo by the physicians.
However, the ALJ never found which impairment rating
Stumbo actually has. Having failed to determine what
impairment rating Stumbo has, the ALJ could not then
determine what permanent disability rating Stumbo has.
Thus, the ALJ failed to satisfy the second and third steps
of the analysis. Next, an ALJ is required to determine
that the claimant is unable to perform any type of work.
Here, the ALJ attempted to undertake this analysis, but,
as noted by the Board and the Court of Appeals, he fell
short. An ALJ cannot simply state that he or she has
reviewed the evidence and concluded that a claimant
lacks the capacity to perform any type of work. The ALJ
must set forth, with some specificity, what factors he or
she considered and how those factors led to the
conclusion that the claimant is totally and permanently
disabled. Such findings are particularly crucial in a case
such as this where: part of Stumbo’s condition and
arguably some of his restrictions are related to his pre-
existing antiphospholipid syndrome; Stumbo testified he
could perform sedentary work with accommodations; no
physician imposed any restrictions that would foreclose
Stumbo from performing sedentary work; Stumbo has
performed a wide-range of work activity; and Stumbo
has obtained 90 hours of college credits. Finally, an ALJ
must determine that the total disability is the result of the
work injury.
Id. at 396-97. These five factors are the same as those in Ira A. Watson Dep’t
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000), mentioned by Webster County Coal.
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Additionally, in Arnold v. Toyota Motor Manufacturing, 375 S.W.3d
56, 61-62 (Ky. 2012), the Court held:
Mindful that Chapter 342 and the Kentucky Constitution
require review of decisions in post-1987 workers’
compensation claims by the Board, the Court of Appeals,
and the Supreme Court, when requested, we conclude
that KRS 342.275(2) and KRS 342.285 contemplate an
opinion that summarizes the conflicting evidence
concerning disputed facts; weighs that evidence to make
findings of fact; and determines the legal significance of
those findings. Only when an opinion summarizes the
conflicting evidence accurately and states the evidentiary
basis for the ALJ’s finding does it enable the Board and
reviewing courts to determine in the summary manner
contemplated by KRS 342.285(2) whether the finding is
supported by substantial evidence and reasonable.
(Footnotes omitted). Webster County Coal contends the ALJ failed to set forth the
legal significance of his findings concerning Sexton’s inability to return to work.
This argument is refuted by the Board, which opined:
The ALJ explained the five-step process required to
support his determination of permanent total disability.
He found Sexton sustained compensable work-related
injuries. He next determined Sexton has a 35%
impairment rating based upon Dr. Ante’s assessment.
The ALJ next translated the impairment rating to a
disability rating in accordance with KRS 342.730. The
ALJ next determined Sexton is unable to perform any
work. He specifically noted that even Dr. Lyon
conceded Sexton is limited to sedentary work. We
note that Dr. Lyon’s concession on this point is the
only medical evidence indicating Sexton, an
underground coalminer, could perform any activities.
Despite that concession, Dr. Lyon opined Sexton is
unable to return to his previous work. Based upon
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the evidence, the ALJ determined Sexton’s inability to
work is due to the residual limitations from his work
injuries.
(Emphasis added). Based on our review of the ALJ’s opinion, award, and order,
we agree with the Board’s characterization of same. We further note the ALJ also
found “Sexton credibly testified that he is not particularly computer literate and
there is no evidence that he has any experience or transferrable skills which would
qualify him for any type of sedentary gainful employment,” and “Sexton testified
that his post-injury medications have adversely affected his memory.” The ALJ
concluded the fact Sexton “cannot walk, stand or climb for any substantial period
of time or on a regular and continuous basis make[s] him unemployable.”
The case herein is distinguishable from the unpublished case of
Richmond v. Masco Building Cabinet Group, No. 2013-CA-1733-WC, 2014 WL
6696665 (Ky. App. Nov. 26, 2014), where “the ALJ’s opinion [was] conclusory,
merely listing facts on which he relied without explanation concerning their
occupational significance vis-à-vis his ultimate legal determination of PTD.” Id. at
*5. As an unpublished case, we need not discuss this case further. Even so, here,
although the ALJ may have minced words, there is no doubt as to the relevant facts
which support the finding that Sexton is unable to work, nor is there any doubt as
to their legal significance.
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Nevertheless, Webster County Coal asserts the ALJ’s finding that
Sexton is permanently and totally disabled is not supported by Kentucky case law,
namely Osborne v. Johnson, 432 S.W.2d 800 (Ky. 1968). Ironically, Osborne
indeed supports the ALJ’s findings. It held, “If the board finds that the workman is
so physically impaired that he is not capable of performing any kind of work of
regular employment . . . the man will be considered to be totally disabled.” Id. at
803. Here, the ALJ found Sexton’s inability to “walk, stand or climb for any
substantial period of time or on a regular and continuous basis make[s] him
unemployable.” This finding makes Sexton permanently and totally disabled as a
matter of Kentucky law under both the Act and applicable case law.
We further agree with the Board herein that “[t]he ALJ appropriately
outlined the steps necessary, and outlined the evidence he relied upon in reaching
his determination. The ALJ properly analyzed the claim, and his decision falls
squarely within his discretion. Therefore, his determination on this issue will
remain undisturbed.”
CONCLUSION
For the foregoing reasons, the Opinion of the Workers’ Compensation
Board is AFFIRMED.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE DAVID
SEXTON:
Brandy B. Hassman
Lexington, Kentucky McKinnley Morgan
London, Kentucky
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