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RENDERED: FEBRUARY 24, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0051-WC
FORD MOTOR COMPANY APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2020-CA-0622
WORKERS COMPENSATION BOARD
WC-17-91338
LARRY BROWN; APPELLEE
HONORABLE JONATHAN R.
WEATHERBY, ADMINISTRATIVE LAW
JUDGE, AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
This case is before the Court on appeal as a matter of right1 by Ford
Motor Company, the Appellant. The Administrative Law Judge dismissed the
compensation claim of Larry Brown, the Appellee, under KRS2 342.165(2),
which allows for dismissal of a worker’s compensation case if the claimant is
found to have falsely represented his physical condition or medical history. The
Workers’ Compensation Board (Board), however, vacated and remanded for
1 Ky. Const. § 115.
2 Kentucky Revised Statutes.
further fact finding. It believed the causal connection between the false
representation and the claimed injury had not been established. The Court of
Appeals affirmed the Board.
Ford presents several arguments but foremost is that the Board
improperly engaged in fact-finding when it reversed the ALJ’s finding of a
causal connection between Brown’s work injury and a prior, undisclosed
injury.3 We agree. For the following reasons, we reverse the Court of Appeals
and reinstate the ALJ’s order of dismissal.
I. Factual and Procedural Background
On February 21, 2017, Brown was working on the assembly line when he
bent to pick up a box of screws. Upon lifting the box, he felt a sharp pain from
his back to his buttocks. He attempted to continue working but the pain
proved too much. He was taken to the medical department at the factory then
transferred by ambulance to a hospital where he stayed for a few days. He then
left the hospital for a nursing home to recuperate for several weeks. He
developed blood clots in his left leg while there, was treated, and eventually
released.
He attempted to return to work on August 13, 2017, but there was no job
available due to the restrictions placed upon him. He finally returned to a
different position on November 14, 2017. He has received an annual raise and
3 The Board affirmed the ALJ’s finding that Brown had misrepresented his prior
medical history and that Ford had relied on the misrepresentation when it hired him.
Brown has not appealed that ruling therefore the evidence demonstrating those facts
is superfluous and omitted from our discussion.
2
works the same number of hours as before although he complains of pain,
which allegedly causes him to struggle through his shift. He testified to
overusing pain medication just to get through a shift. Brown’s claim relates to
the time period between August 13th and November 13th.
During discovery, it was revealed Brown had previous back problems
that he had not disclosed to Ford when he applied for work in 2016. Medical
records demonstrate Brown suffered a back injury in 1999. This injury
culminated in a 2003 surgery removing a disc and fusion at L5 and S1. In
2008, working for a different employer, Brown fell, resulting in post-operative
changes in the lower lumbar spine. Finally, in 2011, Brown was involved in a
vehicle collision and records demonstrate he complained of lower lumbar spine
pain. Notes from the treating doctor at the time mentioned Brown had
specifically complained of back pain radiating down through his left leg. None
of these facts were disclosed to Ford prior to hiring Brown.
Regarding his work injury in 2017, Brown testified his symptoms were
“extreme back pain” centered in the “nerves in my buttocks and in my butt,
and it goes in my legs, and my left leg seems to want to give out.” He also
testified to using three prescription drugs—Warfarin, Hydrocodone, and
Gabapentin. At Norton Healthcare, on August 28, 2017, Brown complained of
lower back pain radiating throughout the lower left of his body. He was
diagnosed with lumbar degenerative disc disease and L4-5 radiculopathy.
Dr. Peter Buecker performed an independent medical evaluation on
Brown’s behalf on November 30, 2017. He diagnosed Brown with spinal
3
stenosis with acute exacerbation from a work-related injury. Though he
attributed Brown’s harm to the work injury, he noted the previous spinal
stenosis from 2003. Dr. Buecker assessed Brown with a DRE Lumbar Category
III with 10% impairment. He specifically noted the 2003 surgery was a
contributing factor to Brown’s impairment. Finally, Dr. Beucker concluded
Brown reached maximum medical improvement in August 2017 and that
Brown did not have the physical capacity to return to his previous work. He
placed restrictions of no lifting more than 25 lbs. and no repetitive twisting,
bending, or walking on hard floors.
Dr. Russell Travis performed his independent medical examination on
Ford’s behalf on June 12, 2017. He found no medical evidence that would
explain Brown’s symptoms, particularly the complaint he could not walk
without support. Dr. Travis concluded at best, Brown may have suffered a
lumbar sprain/strain on February 21st, but it left no permanent sequelae. He
particularly noted that the MRI images post-injury, compared to MRI images
from 2008 and 2011, revealed no changes except normal age-related
degeneration.
Dr. Travis also reviewed the findings of Dr. Buecker. He disagreed with
the assessment of DRE Lumbar Category III with 10% impairment. Dr. Travis
explained per the Fifth Edition of the American Medical Association Guides, such
a diagnosis was inappropriate as there was no sign of radiculopathy. He further
noted Brown’s symptom magnification during his examination, and he believed
Brown had developed an addiction or dependency on pain medication
4
prescriptions, virtually all of which he thought inappropriate for Brown to be
taking.
Finally, Dr. Travis noted video evidence showed Brown walking around
his car, as well as entering and exiting it, without the use of a cane or visible
signs of struggle. Dr. Travis also noted at a rehabilitation center on June 6,
2017, the physical therapist noted “5/5 Waddell findings.” In layman’s terms,
Brown displayed all behaviors indicative of symptom magnification. From all
this, Dr. Travis concluded there is no evidence for an impairment rating except
DRE Lumbar Category I 0%. He noted as well the current injury of Brown was
“not related in any way” to his 2003 surgery.
The ALJ found Dr. Travis credible, persuasive, and “effectively refuted
the opinion of Dr. Buecker with objective medical evidence.” Combined with
testimony pertaining to the other elements of KRS 342.165(2) not pertinent to
our review, the ALJ dismissed the claim as statutorily barred. Brown moved for
reconsideration and further findings of fact. While the ALJ did make some
additional findings, he reaffirmed his dismissal. Brown appealed to the Board.
The Board affirmed in part, vacated in part, and remanded back to the
ALJ. The portion vacated pertained to the finding of a causal connection. The
Board believed it was “unclear from the evidence whether there is specific
connection between the alleged injury, and the previous back injuries
concealed.” The Board noted that the ALJ relied upon Dr. Travis’ testimony,
particularly his MRI image analysis, to find a causal link. But the Board did
not believe that sufficient. It stated,
5
Standing alone, Dr. Travis’ finding of no structural change appears
to establish that Brown’s current complaints are unrelated to his
previous injury for which surgery was performed. There appears to
be no evidence in the record establishing that Brown sustained any
structural lumbar injury on February 21, 2017, while working for
Ford. The ALJ failed to provide a finding as to how a possible
strain in 2017 is related to a previous structural injury without
interval change demonstrated on imaging studies. Dr. Travis
acknowledged that Brown might have sustained a sprain or strain,
despite his opinions regarding symptom embellishment. This
would seem to establish his complaints are unrelated to the
previous structural changes which were not disclosed to Ford.
The Board remanded for further fact finding regarding a causal link but
directed no particular result.
On remand, the ALJ remained steadfast. In his Remand Opinion and
Order, he explained
the opinion of Dr. Travis supports the causal connection between
the false representation and the injury . . . the objective findings
referenced by Dr. Travis reveal the Plaintiff’s back condition had
not changed since his prior undisclosed injury thus making the
complaints directly related to the prior undisclosed back condition
of the Plaintiff.
The ALJ then cited to our unpublished opinion in Daniels v. B.R. & D.
Enterprises, Inc., No. 2005-SC-0652-WC, 2006 WL 734407 (Ky. Mar. 23, 2006)
for support. Brown moved for reconsideration, but the petition was denied. He
again appealed to the Board.
The Board once again disagreed with the ALJ. It held the MRI image
study by Dr. Travis alone did not establish a causal link between the
undisclosed back injury and the work injury. The Board stated, “we find the
evidence cited by the ALJ does not establish Brown sustained an injury at the
fusion site while working for Ford . . . Dr. Travis’ diagnosis of a possible lumbar
6
sprain/strain establishes Brown’s complaints are unrelated to the previous
structural changes, which were not disclosed to Ford.” The Board vacated the
ALJ’s dismissal and remanded for further fact finding but directed no
particular result. Ford appealed.
The Court of Appeals affirmed the Board. It did not believe the Board had
reweighed or reinterpreted evidence. Instead, the Court of Appeals believed,
“[t]he Board was very clear on what additional findings were needed to satisfy
the causal connection under the third prong of KRS 342.165(2). When the ALJ
failed to identify other evidence in the record to support the causal connection,
the Board was compelled to vacate the ALJ’s decision.” The Court of Appeals
concluded that the statute required substantial evidence to support a causal
connection, and in so holding stated “[s]imply because Dr. Travis opines that
the previous back injury and 2017 work injury are related does not make it so.
He must have objective medical evidence to support this conclusion.” Ford
appealed to this Court as a matter of right.
We now address the merits of the appeal.
II. Standard of Review
“A party who appeals a finding that favored the party with the burden of
proof must show that no substantial evidence supported the finding, i.e., that it
was unreasonable under the evidence.” Kroger v. Ligon, 338 S.W.3d 269, 272
(Ky. 2011) (internal citations omitted). Before the Board, Ford need only have
shown “some evidence of substance to support the finding, meaning evidence
which would permit a fact-finder to reasonably find as it did.” Special Fund v.
7
Francis, 708 S.W.2d 641, 643 (Ky. 1986). While the Board does have authority
to determine whether an ALJ’s finding is “clearly erroneous,” KRS
342.285(2)(d), “a finding which can reasonably be made is, perforce, not clearly
erroneous.” Special Fund, 708 S.W.2d at 643.
III. Analysis
A. The Roles of the ALJ as Fact Finder and the Board as an Appellate Body
In a workers’ compensation claim, the ALJ is the sole factfinder. He has
“the sole authority to judge the weight, credibility, substance, and inferences to
be drawn from the evidence.” Holcim v. Swinford, 581 S.W.3d 37, 39 (Ky. 2019).
He “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
party's total proof.” Ligon, 338 S.W.3d at 272. “Where, as here, the medical
evidence is conflicting, the question of which evidence to believe is the
exclusive province of the ALJ.” Square D Co. v. Tipton, 862 S.W.2d 308, 309
(Ky. 1993).
On appeal, “[t]he board shall not substitute its judgment for that of the
administrative law judge as to the weight of evidence on questions of fact . . . .”
KRS 342.285(2). “The appellate tribunal may not usurp the ALJ's role as fact-
finder by superimposing its own appraisals as to weight and credibility or by
noting other conclusions or reasonable inferences that otherwise could have
been drawn from the evidence.” Miller v. Go Hire Emp. Dev., Inc., 473 S.W.3d
621, 629 (Ky. App. 2015). Instead, it may only review for a limited number of
scenarios, i.e., the ALJ acted beyond his power; his judgment was procured by
8
fraud; or he committed an error of law. Ligon, 338 S.W.3d at 272-73. An error
of law occurs if an ALJ “made a clearly erroneous finding of fact”. Id. at 273;
KRS 342.285(2)(d).
B. The Board Improperly Reinterpreted the MRI Image Study
The ALJ found as a fact the prior, undisclosed back injury was causally
connected to Brown’s work injury. He identified the evidence which he found
particularly persuasive, the MRI image study. He explained his rationale as to
why that evidence supported his inference, i.e., the extreme symptoms of
Brown cannot be explained by any objective medical evidence demonstrating a
new injury thus, the symptoms can only be explained in relation to the prior,
undisclosed injury.
Had the Board believed this did not constitute substantial evidence and
requested only “a sufficient explanation by the ALJ of the basis for the
decision,” then its order would not be objectionable. Miller, 473 S.W.3d at 630
(internal quotation and citation omitted). But the Board did something more
which went beyond merely asking the ALJ to provide a factual basis for his
decision. Instead, the Board posited an alternate, inconsistent inference drawn
from the MRI image study and, based upon that inference, then demanded the
ALJ provide more evidence to support his now-rejected inference. In a word,
the Board has demanded more than substantial evidence to support a finding
of fact made by the ALJ on a contested issue contrary to law. Ligon, 338
S.W.3d at 272.
9
This is demonstrated by the Board’s first order which stated, “[s]tanding
alone, Dr. Travis’ finding of no structural change appears to establish that
Brown’s current complaints are unrelated to his previous injury for which
surgery was performed.” (Emphasis added.) In other words, the Board believed
an alternate, inconsistent interpretation of the evidence was more plausible
and, on that basis, ruled there was a lack of substantial evidence. It also
believed since Brown “might have sustained a strain or sprain” that his
complaints were thereby unrelated to the prior injury. The ALJ never made
such a finding and if he had, his judgment would be erroneous as it would be
contradictory to the finding that the MRI image study established a causal
connection. Miller, 473 S.W.3d at 634 (“An ALJ's discretion to pick and choose
from the evidence does not authorize conflicting findings of fact.”). But the
Board’s order does not suggest contradictory findings are the reason for
reversal, merely disagreement as to what the evidence demonstrates.
In its second order, the Board went further and explicitly couched its
ruling in the terms of fact finding—“we find the evidence cited by the ALJ does
not establish Brown sustained an injury at the fusion site while working for
Ford . . .” and that “a possible lumbar sprain/strain establishes Brown’s
complaints are unrelated . . .”. (Emphasis added.) Thus, in its second order the
Board went from merely positing alternative interpretations or noting other
possible conclusions from the evidence, to outright making findings of fact
contrary to the findings of the ALJ.
10
Suffice it to say, the Board may not hypothecate alternate inferences or
interpretations of the evidence to reverse an ALJ’s finding of fact. Miller, 473
S.W.3d at 629. Nor may it make its own findings. KRS 342.285(2). It must be
remembered that by its very definition, substantial evidence is evidence fit to
induce conviction in the minds of reasonable men. Nonetheless, “it is
something less than the weight of the evidence, and the possibility of drawing
two inconsistent conclusions from the evidence does not prevent an [ALJ’s]
finding from being supported by substantial evidence.” Ky. State Racing
Comm’n v. Fuller, 481 S.W.2d 298, 307 (Ky. 1972) (internal quotation and
citation omitted).
C. The Court of Appeals’ Error on Review
The Court of Appeals did not believe the Board had improperly
reinterpreted evidence or was demanding more than substantial evidence upon
remand. It thought the Board had merely demanded a substantial factual basis
be shown in the first place to support the causal connection. Additionally, it
stated, “[s]imply because Dr. Travis opines that the previous back injury and
2017 work injury are related does not make it so. He must have objective
medical evidence to support this conclusion.” But Dr. Travis gave no such
opinion. It was the ALJ who found a causal connection based on Dr. Travis’
report. Thus, we do not disagree that a causal connection must be supported
by substantial evidence on appeal. But the Court of Appeals has mistakenly
inserted an evidentiary standard of “objective medical evidence” that is not
found in KRS 342.165(2)(c) therefore, we reject the notion that a causal
11
connection under KRS 342.165(2)(c) must be supported by objective medical
evidence.4
Said rejection, however, does not contradict our prior opinion that the
finding of a causal connection is a “medical question.” Baptist East Hosp. v.
Possanza, 298 S.W.3d 459, 463 (Ky. 2009). That holding came in the specific
context of rejecting the argument that KRS 342.165(2)(b) and (c) were capable
of combination, thus a causal connection under the latter need only be shown
by “proof that the injury would not have occurred because the worker would
not have been hired . . .” Id. Instead, we held that by listing three elements the
General Assembly intended “three distinct requirements.” Id. Because of that
ruling, the ALJ in Baptist East had no evidence whatsoever to support a finding
of a causal connection because the claimant had failed to disclose a prior
lumbar injury but was seeking compensation for a neck injury. Id.
Thus, we believe the reasoning of Daniels v. B.R. & D. Enterprises, Inc.,
although unpublished, is essentially correct—"medical evidence may be a
means for proving such a [causal] connection, [but] it is not the sole means for
doing so.” No. 2005-SC-0652-WC, 2006 WL 734407, at *5 (Ky. Mar. 23, 2006).
4 “We presume when interpreting a statute that the legislature intended for it to
mean exactly what it says.” Falk v. Alliance Coal, LLC, 461 S.W.3d 760, 764 (Ky. 2015)
(internal quotation and citation omitted). Because the General Assembly has inserted
an objective medical evidence standard in another provision of the Workers’
Compensation chapter, its omission in the provision under consideration indicates a
deliberate choice not to do so by the legislature. Cf. KRS 342.125(1)(d) (requiring
objective medical evidence to demonstrate change of disability). See also KRS
342.0011(1) (requiring an injury to be proved by “objective medical findings”).
12
To require objective medical evidence to support a causal connection in all
cases would import a standard not found in the statutory text.
IV. Conclusion
The Board reversed a finding of fact of an ALJ not by demonstrating the
finding was unsupported by substantial evidence but by advancing its own
inferences and highlighting other possible conclusions from the evidence. This
the Board cannot do. In affirming, the Court of Appeals improperly applied an
evidentiary standard not found in the statute. Therefore, we reverse the Court
of Appeals and remand with instructions to reinstate the ALJ’s order of
dismissal.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Joshua W. Davis
Priscilla C. Page
O’Bryan, Brown & Toner, PLLC
COUNSEL FOR APPELLEE:
John W. Spies
Morgan & Morgan Louisville, PLLC
ADMINISTRATIVE LAW JUDGE:
Hon. Jonathan R. Weatherby
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey, Chairman
13
Ford Motor Company v. Larry Brown
Combined Opinion