RENDERED: FEBRUARY 17, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0797-WC
KENNETH TURNER APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-15-94425
COMMONWEALTH OF KENTUCKY-
DEPARTMENT OF CORRECTIONS;
HONORABLE JONATHAN ROBERT
WEATHERBY, JR.,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, EASTON, AND JONES, JUDGES.
JONES, JUDGE: The Appellant, Kenneth Turner, seeks review of the June 18,
2021, opinion of the Workers’ Compensation Board (“Board”), wherein the Board
affirmed the Administrative Law Judge’s (“ALJ”) order on remand. Having
reviewed the record and being otherwise sufficiently advised, we affirm the Board.
I. BACKGROUND
In 2015, Turner was 58 years old and employed by the Department of
Corrections as a full-time maintenance employee. He performed most of his duties
at the Kentucky State Penitentiary in Eddyville, Kentucky, taking care of
plumbing, electrical, and air conditioning issues. Turner’s job duties required him
to lift and carry heavy items and climb ladders.
Turner worked the night shift at the penitentiary on February 15,
2015, and some overtime the following the day. Sometime between 2:00 p.m. and
3:00 p.m. on February 16, 2015, Turner was sent to return a key to the yard office
after which he planned to clock out and go home. After returning his key, Turner
attempted to walk along a sidewalk within the penitentiary. It had been snowing
the night before, and there was snow and ice on the walkway. Turner slipped and
fell on the icy sidewalk. As part of this claim, Turner alleges that he injured his
hip, ribs, right shoulder, and neck when he fell. Only Turner’s alleged neck injury
remains at issue.
The following week, on February 23, 2015, Turner visited his family
practitioner, Holly McCormick, APRN, with complaints of headaches, right
shoulder pain, and right-sided chest pain; it does not appear that Turner
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complained of any neck pain at that time. Turner described his fall to Nurse
McCormick. She ordered x-rays and a CT scan. The x-rays revealed a shoulder
abnormality of the clavicle and in the AC joint and broken ribs. Nurse McCormick
referred Turner to an orthopedic surgeon for his shoulder condition. Turner
returned to Nurse McCormick on March 4, 2015, with continued complaints of
pain in his right shoulder and ribs. He did not make complaints of neck pain at this
time either. Nurse McCormick referred Turner to the Trigg County Hospital
Rehabilitation Department (“Trigg County”) for physical therapy.
Turner complained of right upper extremity radicular pain during his
first physical therapy appointment on March 24, 2015. At a March 31, 2015, visit,
Turner again complained of right upper extremity pain with headaches, and the
office notes indicate cervical pathology was suspected.
Turner returned to Nurse McCormick again on April 6, 2015, because
of his neck pain, which he reported was gradually worsening since his fall. Nurse
McCormick noted that Turner reported to her that he had been having issues with
neck pain since his work accident, and that it had been coming on gradually after
the work accident. Turner continued his complaints on April 13, 2015. According
to office notes, Turner had a positive Spurling’s test for cervical radiculitis and
demonstrated limited cervical range of motion.
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Nurse McCormick referred Turner to Dr. Chang after an MRI
revealed pathology within Turner’s shoulder, and Dr. Chang recommended Turner
visit a cervical specialist. On May 7, 2015, Nurse McCormick noted that Turner
was still having difficulties with his neck and was awaiting a referral to an
orthopedic specialist for the condition. On July 16, 2015, Nurse McCormick
observed that the MRI of Turner’s neck was abnormal and wrote that “[t]his all
stems from a worker’s comp claim when he fell and hit his neck, head, and
shoulder area.”
Turner was eventually referred to Dr. Gregory Lanford, who saw
Turner for an independent medical examination (“IME”) and a neurological
evaluation on September 17, 2015. Dr. Lanford diagnosed right C6 radiculopathy,
weakness in the right biceps, and absent right biceps jerk consistent with foraminal
stenosis at C5-6 on the right. Dr. Lanford observed that Turner did not experience
any of his current symptoms prior to the work injury. Dr. Lanford noted that
Turner had failed conservative treatment and recommended a cervical fusion at
C4-6. Dr. Lanford concluded that, without surgery, Turner would be at maximum
medical improvement.
Dr. Paul Phillips, Jr., analyzed Dr. Lanford’s surgical
recommendation through a utilization review on September 29, 2015. Dr. Phillips
found the requested anterior cervical fusion at C4-6 was not medically necessary
-4-
and appropriate as the records did not include significant findings of recent
electrodiagnostic studies confirming negative cervical radiculopathy. Dr. Phillips
indicated that the surgery was not pre-certified, because Turner had not undergone
selective nerve root blocks.
Dr. Berkman, a neurosurgeon, also saw Turner at the request of the
carrier. Dr. Berkman stated that the February 16, 2015, work-related injury caused
a right shoulder injury, cervical sprain, and exasperation of pre-existing cervical
spondylosis with a right C5 radiculopathy. Dr. Berkman recommended epidural
steroid injections at the C4-5 on the right and additional physical therapy for the
cervical spine problems.
The workers’ compensation carrier ultimately denied the proposed
cervical fusion, at which time there was a lapse in Turner’s treatment. By July 6,
2016, however, Turner obtained private insurance coverage and began treating
with Dr. John Yezerski for his shoulder and neck. Dr. Yezerski diagnosed a right
rotator cuff tear and adhesive capsulitis of the right shoulder. Dr. Yezerski initially
treated the condition conservatively with injections, but those measures failed and,
on August 1, 2016, Dr. Yezerski performed a total shoulder replacement, which
returned Turner to a functional range of motion and increased his strength. Dr.
Yezerski opined that following the surgery Turner had a 14% impairment to the
body as a whole.
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Dr. Yezerski provided Turner with a number of restrictions, including
prohibiting him from reaching overhead with his right arm. Since Turner had to
climb ladders to perform his maintenance job at the penitentiary, this precluded
Turner from returning to the type of work he was performing at the time of his
injury. Dr. Yezerski indicated that Turner reached maximum medical
improvement on September 13, 2017.
After the shoulder surgery, Turner again sought treatment for his neck
pain. Because his insurance would not permit a return to Dr. Lanford, Turner
visited Dr. Thomas Gruber on November 8, 2016, for neck pain and numbness.
Dr. Gruber noted that Turner’s issues were complicated insomuch as the cervical
spine problems and right shoulder problems made it hard to differentiate the cause
of pain. An MRI revealed degenerative disc disease with right foraminal stenosis
at the C4-5 and C5-6 levels along with disc herniation at both levels. Dr. Gruber
agreed with Dr. Lanford that a two-level fusion surgery was the appropriate
treatment.
Dr. Gruber performed the fusion surgery on February 6, 2017. Turner
indicated that his cervical condition improved after the surgery but he continued to
experience some cervical stiffness. Dr. Gruber recommended trigger point
injections to improve the stiffness. Following a July 11, 2017 visit, Dr. Gruber
concluded Turner had reached maximum medical improvement for his neck
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condition and could return to work. In an August 15, 2017, report, Dr. Gruber
indicated that Turner’s work injury exacerbated the pre-existing dormant, non-
disabling degenerative conditions in Turner’s cervical spine and concluded Turner
had no active impairment rating prior to the injury. He assigned Turner a 25%
impairment rating and gave him several restrictions regarding lifting loads over
twenty pounds and turning his head.
On August 12, 2015, Dr. Gregory Gleis performed an IME.
According to Dr. Gleis, a May 12, 2015 cervical spine x-ray and a June 25, 2015
cervical MRI revealed pre-existing degenerative changes. Dr. Gleis believed that
while Turner’s left shoulder condition was consistent with pain from the cervical
spine and his initial right shoulder symptoms were consistent with an AC joint
separation, Turner’s symptoms were now suggestive of referred cervical pain.
From Turner’s examination and medical records, Dr. Gleis found sufficient
correlation between the neck and right arm symptoms to conclude that the head
contusion from the February 16, 2015, incident could have caused Turner’s neck
injury. He determined that Turner was not yet at maximum medical improvement
for the cervical spine.
On April 3, 2018, Dr. Thomas O’Brien also conducted an IME. He
diagnosed minor bruises/contusions to the shoulder, ribs, and hip as a result of the
work incident. Dr. O’Brien concluded Turner did not sustain a permanent injury in
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the fall; rather, Turner’s rib and hip contusions resolved a few days after the
incident and his shoulder pain improved. Dr. O’Brien, who did not review
Turner’s physical therapy records, emphasized that Turner did not complain of
neck pain until almost two months after the work accident and relied upon his
interpretation of the June 23, 2015, MRI scan of Turner’s cervical spine. Dr.
O’Brien concluded:
Mr. Turner has a non-work-related, multilevel, cervical
degenerative disc disease. The work activities of
February 16, 2015, did not cause an injury to the cervical
spine nor cause any type of temporary or permanent
aggravation, acceleration or precipitation of this
degenerative cervical condition above and beyond the
natural history of progression of this condition in a
middle-aged man. The two-month hiatus where there are
no symptoms of neck pain or cervical radiculopathy
effectively rules out a causal association with Mr.
Turner’s neck symptoms and the ultimate surgical
procedure that was carried out by Dr. Gruber in the form
of a C4-C5, C5-C6 anterior cervical decompression and
fusion procedure on February 6, 2017. Further support
for my causation opinion comes from the objective
imaging studies including the cervical MRI scan. The
cervical MRI scan dated June 23, 2015 depicts
longstanding, mild, degenerative disc changes at C4-C5
and C5-C6 with no acute objective findings that can in
any way be causally associated with an acute injury to
the cervical spine resulting from the work incident of
February 16, 2015.
(Record (R.) at 322) (emphasis added). Dr. O’Brien assessed a 0% impairment for
the neck and opined Turner could have returned to unrestricted work by May 12,
2015.
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Turner filed a Form 101 on November 11, 2018, seeking both
temporary and permanent wage and medical benefits for his work-related injuries.
In his Form 101, Turner alleged he sustained multiple injuries to multiple body
parts when he slipped and fell at work on February 16, 2015. Following a final
hearing, at which Turner testified, the ALJ rendered his initial decision on July 23,
2018. The ALJ relied heavily upon Dr. O’Brien’s opinions and determined that
Turner sustained only temporary injuries to the shoulder, ribs, and hip due to his
work accident. The ALJ awarded Turner temporary benefits from the date of the
accident until May 12, 2015, when he determined Turner had reached maximum
improvement. Turner appealed to the Board.
On January 11, 2019, the Board issued an opinion vacating the ALJ’s
opinion and remanding the claim to the ALJ for a review of the evidence with
particular regard to Dr. O’Brien’s opinion. The Board acknowledged that Dr.
O’Brien’s opinion on causation was based in part on a partially incomplete medical
history insomuch as it did not contain Turner’s physical therapy records. The
Board directed the ALJ to review Dr. O’Brien’s opinion in the context of those
records and provide additional findings related thereto.
On March 18, 2019, the ALJ issued his first decision on remand,
again finding that Turner had sustained only temporary injuries. Despite the
Board’s directions on remand, the ALJ did not reference the physical therapy
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records or explain whether he considered how Dr. O’Brien’s failure to review
those records as part of his IME might affect the reliability of Dr. O’Brien’s final
opinion.
Turner appealed, and on August 2, 2019, the Board rendered its
second opinion vacating and remanding the ALJ’s judgment. Although the Board
had directed the ALJ to provide a summary of the Trigg County records, the ALJ
failed to include the fact that Turner was experiencing cervical spine pain at his
appointments and did not reference the March 24 and 31 physical therapy records
in his summary. The Board noted that the ALJ’s only reference to the physical
therapy records was: “[w]hile there was some reference to neck symptoms made at
a physical therapy visit on March 24, 2015, as well as a complaint to a nurse on
April 6, 2015, the point made by Dr. O’Brien regarding the late onset of symptoms
is still persuasive.” (R. at 1056.) On remand, the Board refused to direct the ALJ
to issue an opinion without considering Dr. O’Brien’s medical opinions altogether
as Turner requested; instead, it directed the ALJ to address all the records before
him as they pertained to Turner’s cervical condition and to explain that Dr.
O’Brien did not review Turner’s physical therapy records in the course of his
evaluation.
On October 22, 2019, the ALJ rendered his second opinion on
remand. The ALJ addressed the Trigg County physical therapy records briefly,
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mentioning that Turner was seen on April 13, 2015, and referenced notes of
shoulder impingement, cervical complaints, apparent range of motion
measurements, and a possible Spurling’s test. However, the ALJ ultimately found
these records to be “illegible” and therefore of little evidentiary value. The ALJ
again failed to discuss the March 2015 physical therapy records and reiterated his
reliance upon Dr. O’Brien’s opinions without accounting for the fact that Dr.
O’Brien rendered his opinion without the benefit of having reviewed all the
physical therapy records. The ALJ also noted the objective findings supporting Dr.
O’Brien’s opinions, including his review of the June 23, 2015, MRI.
Turner again appealed to the Board, arguing that the ALJ had once
again failed to explain how he could rely on Dr. O’Brien’s conclusion with respect
to the cervical injury when it appeared that opinion incorrectly relied on the fact
that Turner had not complained of cervical pain to any of his providers in the
immediate aftermath of his fall. On February 7, 2020, the Board once again
vacated and remanded the ALJ’s judgment. The Board wrote:
We note the ALJ has had multiple opportunities to
provide an accurate review of the evidence but has failed
to do so. In his latest decision, the ALJ only made a
passing statement that the records from the Trigg County
Hospital Rehabilitation Department are “illegible,” and
did not reference the physical therapy records. We must
therefore, again vacate the ALJ’s determinations, and
remand for a complete review of the records, and those
from the Trigg County Hospital Rehabilitation
Department. The ALJ must then discuss the impact of
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the information contained in those records upon Dr.
O’Brien’s opinion. After reviewing the evidence and the
impact, the ALJ may make any determination supported
by the evidence. We do not direct any particular result;
however, any decision must be based upon an accurate
review of the evidence and its impact.
(R. at 1146) (emphasis added).
This time, Turner did not wait for the ALJ to render another opinion.
Instead, Turner petitioned our Court for review of the Board’s opinion. Before us,
Turner argued the Board abused its discretion insomuch as it should have: (1) held
that Dr. O’Brien’s opinion cannot constitute substantial evidence supporting the
ALJ’s opinion; (2) and remanded the claim to the ALJ for new findings and
conclusions in conformity with that holding and without reference to or reliance
upon Dr. O’Brien’s IME.
Following an extensive review of the record and case law, we
affirmed the Board, holding that Dr. O’Brien’s failure to review the physical
therapy records did not require exclusion of his report. We explained:
We are not convinced that the facts before us are
analogous to those of Cepero [v. Fabricated Metals
Corp., 132 S.W.3d 839 (Ky. 2004)] or Eddie’s Service
Center [v. Thomas, 503 S.W.3d 881 (Ky. 2016)]. Rather,
we are persuaded that the facts before us most closely
resemble those of GSI Commerce [v. Thompson, 409
S.W.3d 361, 365 (Ky. App. 2012)]. Turner accurately
points out that Dr. O’Brien did not have the opportunity
to review his full medical history, while the other doctors
did. However, Dr. O’Brien did not arrive at his medical
determination solely on the basis of the partially flawed
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medical history before him. Dr. O’Brien’s premise for
concluding that Turner’s injuries were not causally
related to his work injury was not entirely based upon his
somewhat incomplete medical history – it was also based
upon his interpretation of objective medical data:
Turner’s June 23, 2015, MRI. Dr. O’Brien opined that
the MRI “depicts longstanding, mild, degenerative disc
changes at C4-C5 and C5-C6 with no acute objective
findings that can in any way be causally associated with
an acute injury to the cervical spine resulting from the
work incident of February 16, 2015.” R. at 322.
Additionally, we note that Dr. O’Brien states in his
report that he based his opinion, at least partially, on the
lack of reference to any neck pain for two months. Two
months is approximately eight weeks. Turner fell on
February 16, 2015. The first mention of neck pain in the
physical therapy records is around March 24, 2015, a
period of five weeks and one day, less than two months
but greater than one month. It is entirely possible the
ALJ could have determined that the physical therapy
records would not have totally contradicted Dr.
O’Brien’s statements insomuch as Turner did not report
neck pain to any medical provider in the days, weeks, or
even first month following his fall. Turner also testified
that his neck pain was not immediate, beginning a few
weeks after his fall.
Based on our review of the records, we agree with
the Board. Dr. O’Brien’s opinion, although based in part
on an incomplete review of all the medical records, is not
so “substantially inaccurate or largely incomplete” that it
could not be considered substantial evidence by the ALJ.
See Cepero, 132 S.W.3d at 842. As such, we cannot
disagree with the Board’s decision refusing to direct the
ALJ to reconsider the award without consideration of or
reliance on Dr. O’Brien’s opinion.
In this circumstance, evaluating the credibility and
proper weight of Dr. O’Brien’s report falls on the ALJ.
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Paramount Foods, Inc. [v. Burkhardt, 695 S.W.2d 418,
419 (Ky. 1985)]. The ALJ may determine whom and
what to believe when there is conflicting evidence.
Pruitt v. Bugg Brothers, 547 S.W.2d 123, 124 (Ky.
1977). The Board is charged with making sure the ALJ’s
opinion is based on an accurate understanding of the facts
and evidence. To date, the ALJ’s opinions have not
demonstrated a sufficient understanding of the record to
allow the Board to confidently conclude that the ALJ
considered the scope of the issues before deciding that
Dr. O’Brien’s report was the most credible and reliable
report before him. The Board cannot affirm the ALJ
unless his determinations are based upon an accurate
review of the evidence and its impact. The ALJ must
provide a sufficient basis for his determination as the
Board has directed. Kentland Elkhorn Coal Corp. v.
Yates, 743 S.W.2d 47, 49 (Ky. App. 1988).
Turner v. Department of Corrections, No. 2020-CA-0330-WC, 2020 WL 6114559,
at *8 (Ky. App. Oct. 16, 2020).
Hoping to put an end to the impasse between the ALJ and the Board,
we attempted to articulate how the ALJ might go about demonstrating to the Board
that he had an adequate understanding of the record. To this end, on remand, we
urged the ALJ to:
separately discuss each of the following in as much detail
as possible to provide the assurances the Board requires
with respect to the record: (1) provide a summary and
analysis of the March and April records at issue
highlighting any complaints or references to
cervical/neck pain or treatment; (2) summarize and
explain his understanding of Dr. O’Brien’s opinions
regarding Turner’s neck injury and the rationale
underpinning those opinions, if any; (3) provide some
explanation of whether Dr. O’Brien’s failure to review
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the records at issue affected the ALJ’s assessment of the
credibility and reliability of Dr. O’Brien’s report, and the
explanation for such determination; and (4) in light of
any such determination explain how the ALJ considered
Dr. O’Brien’s opinion in comparison to the other
opinions of record.
Id.
Finally, we reminded the Board that if the ALJ did so, “the Board
must then accept the ALJ’s ultimate findings so long as they are legally sufficient,
as the Board ha[d] plainly determined that Dr. O’Brien’s opinion is capable of
serving as substantial evidence if supporting analysis is provided by the ALJ.” Id.
On January 26, 2021, the ALJ rendered a remand opinion and order.
In relevant part, it states:
This matter is before the ALJ upon Remand from
the Workers’ Compensation Board with direction to
provide additional findings in light of [Turner’s] physical
therapy records that indicate complaints of cervical pain
that [Turner] related to the work injury as well as the
suspicion referenced by Holly McCormick to the
suspected cervical pathology. The prior findings and
evidence summaries, specifically including the references
to the physical therapist’s conclusions and APRN Holly
McCormick’s notes as listed in the Opinion, Award and
Order issued on July 23, 2018, are specifically
incorporated herein by reference.
1. [Turner] in this matter alleged a work-related injury
occurring on February 16, 2015. He presented to Trigg
County Hospital and the medical records reference
shoulder impingement, cervical complaints and a positive
Spurling’s test.
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2. The medical records of Holly McCormick, APRN
indicate that [Turner] presented on February 23, 2015, a
week after the fall at work, but did not complain of neck
pain or issues. [Turner] was referred to physical therapy
and began to complain about radicular pain in the right
upper extremity on March 24, 2015, and again on March
31, 2015. On April 6, 2015, [Turner] reported having
had some issues with neck pain since the work accident.
His physical therapist believed that his shoulder pain
could have been work-related and cervical pathology was
suspected per the office note of the same date.
...
5. The ALJ has repeatedly found that the opinion of Dr.
O’Brien is the most persuasive and convincing in this
matter. The ALJ acknowledges that the report of Dr.
O’Brien includes a review of the records of Holly
McCormick, APRN, but does not include a reference to
[Turner’s] cervical spine complaints or the much-
discussed physical therapy records which include a
reference to [Turner’s] initial cervical spine complaints.
While this omission is unexplained, the poor image
quality of the documents cannot be overlooked.
6. The ALJ finds that these omissions by Dr. O’Brien do
not diminish the substantial credibility of his opinions
regarding [Turner’s] condition. The ALJ also notes that
while Dr. O’Brien referenced a two-month delay in the
reporting of symptoms by [Turner], the records
referenced herein clearly limit that delay to
approximately five weeks. The ALJ also finds that this
discrepancy has no effect on the credibility of the
opinions offered by Dr. O’Brien.
...
8. The ALJ finds that the failure by Dr. O’Brien to
acknowledge that [Turner] complained about work-
related cervical symptoms a few weeks earlier than he
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previously believed, or that a nurse practitioner suspected
cervical pathology, do not rise to the level articulated in
Cepero that would constitute a medical history so
inaccurate as to nullify his otherwise credible opinion.
9. The ALJ therefore finds that while Dr. O’Brien
included a summary of the records of Holly McCormick
but omitted any reference to cervical complaints or
suspected pathology resulting therefrom, his
understanding of [Turner’s] medical history is not so
inaccurate that it serves to diminish his ultimate
conclusions. The ALJ therefore finds that his opinions
are credible and convincing.
10. The ALJ continues to find that the report of Dr.
O’Brien in this matter is the most comprehensive,
thorough, and persuasive and further finds that ample
substantial evidence as referenced hereinbefore supports
his conclusions.
11. Dr. O’Brien assessed a 0% impairment for cervical
spine and found that [Turner] reached maximum medical
improvement and could return to work unrestricted on
May 12, 2015. The opinions of Dr. O’Brien have
convinced the ALJ and the ALJ thus finds that [Turner]
sustained only temporary injuries that resolved as of May
12, 2015.
(R. 1555-58.)
Once again, Turner appealed to the Board. Turner argued to the
Board that the ALJ failed to comply with this Court’s directives. He requested the
Board vacate the ALJ’s remand opinion and send the case back down with
directions that it be assigned to a different ALJ and that the new ALJ should
reassess the evidence without consideration of Dr. O’Brien’s IME report. This
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time, however, the Board affirmed the ALJ concluding that his decision on remand
contained the sufficient analysis required by the law of the case. Specifically, the
Board stated:
The Board previously remanded this claim on
three occasions to insure the ALJ accurately summarized
and understood the evidence, and performed a sufficient
analysis in light of Dr. O’Brien’s inaccurate statement
that Turner had no cervical complaints until two months
after the alleged February 16, 2015 injury.
...
On appeal, Turner argues the ALJ erred by failing
to comply with the dictates of the Board and the Court of
Appeals. Turner argues the ALJ did not provide a
summary and analysis of the March and April 2015
records at issue highlighting any complaints and
references to cervical/neck pain or treatment. Turner
contends the ALJ’s summary on remand remains
insufficient, as the ALJ failed to discuss the limited range
of motion and positive Spurling’s test found in the
physical therapy records from March 24, 2015 and April
13, 2015. Turner contends the ALJ did not adequately
summarize and explain his understanding of Dr.
O’Brien’s opinions regarding the neck injury and the
rationale underpinning those opinions. Turner contends
the ALJ shows he did not review the evidence again, and
he is confused about Dr. O’Brien’s opinion regarding
when the cervical pathology started. Finally, Turner
notes the Court of Appeals directed the ALJ to explain
how he considered Dr. O’Brien’s opinion in comparison
to the other opinions of record. Turner observes the ALJ
made no reference on remand to the fact that six other
medical experts indicated the cervical spine complaints
were work-related.
...
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Since the first decision of the Board, we have
noted that Dr. O’Brien’s opinion on causation was not
based solely on a mistaken belief that Turner had no
cervical complaints for two months following the injury
. . . Dr. O’Brien also formed his opinion based upon MRI
studies that he stated revealed longstanding mild
degenerative disc changes with no acute objective
findings that can be associated with an acute injury
resulting from the work incident. Dr. O’Brien stated the
work injury did not cause any temporary or permanent
aggravation, acceleration or precipitation of the
degenerative cervical condition above the natural
profession of this condition. Turner initially voiced no
complaints of neck or radicular pain to Nurse
McCormick when she saw him on week following the
accident. He first reported neck complaints to her on
Apri16, 2015, or seven weeks following the work
incident. Turner voiced no complaint of neck problems
to Dr. Chang until May 12, 2015, approximately three
months following the incident and two months after
beginning treatment with Dr. Chang.
We have repeatedly indicated we directed no
particular finding regarding the weight to be given Dr.
O’Brien’s opinions. . . . [T]he Court of Appeals
concluded it could not disagree with the Board’s decision
refusing to direct the ALJ to reconsider the award
without consideration of, or reliance on, Dr. O’Brien’s
opinion. The Court further noted the evaluation of the
credibility and proper weight to be given to Dr.
O’Brien’s opinion falls on the ALJ.
The Board’s function is to determine whether the
ALJ’s decision is based upon an accurate understanding
of the facts and evidence. Here, the ALJ found Dr.
O’Brien’s failure to acknowledge Turner complained
about work-related cervical symptoms a few weeks
earlier than he previously believed, or that a nurse
practitioner suspected cervical pathology did not rise to
the level of the inaccuracy articulated in Cepero
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constituting a medical history so inaccurate as to nullify
Dr. O’Brien’s otherwise credible opinions. . . . Again we
note, Dr. O’Brien also based his opinion on the type of
changes reflected in the MRI. Based upon this evidence,
the ALJ could reasonably believe the difference between
a five-week delay and an eight-week delay would not
significantly alter Dr. O’Brien’s causation opinion.
...
In this instance, we determine the ALJ sufficiently
provided the basis for his decision, supported by the
evidence, and a contrary result is not compelled. While
Turner has identified evidence supporting a different
conclusion, there was substantial evidence presented to
the contrary. As such the ALJ acted within his discretion
to determine which evidence to rely upon, and it cannot
be said the ALJ’s conclusions are so unreasonable to
compel a different result.
(R. at 1622-1633.) This appeal followed.
II. STANDARD OF REVIEW
Pursuant to KRS1 342.285, the ALJ is the sole finder of fact in
workers’ compensation claims. Our courts have construed this authority to mean
the ALJ has the sole discretion to determine the quality, character, weight,
credibility, and substance of the evidence and to draw reasonable inferences from
that evidence. Paramount Foods, Inc., 695 S.W.2d at 419; 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
1
Kentucky Revised Statutes.
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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). On review, neither the
Board nor the appellate court can 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).
If the fact finder finds in favor of the person having the burden of
proof, the burden on appeal is only to show that there was some substantial
evidence to support the decision. See Special Fund v. Francis, 708 S.W.2d 641,
643 (Ky. 1986). However, if the ALJ finds against the party having the burden of
proof, the appellant must “show that the ALJ misapplied the law or that the
evidence in [his] favor was so overwhelming that it compelled a favorable
finding.” Gray v. Trimmaster, 173 S.W.3d 236, 241 (Ky. 2005).
On appeal, our role “is to correct the Board only where . . . the Board
has overlooked or misconstrued controlling statutes or precedent, or committed an
error in assessing the evidence so flagrant as to cause gross injustice.” ViWin Tech
Windows & Doors, Inc. v. Ivey, 621 S.W.3d 153, 157 (Ky. 2021) (quoting Western
Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).
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III. ANALYSIS
As he did before the Board, Turner argues to this Court that the ALJ’s
opinion on remand should be vacated and this matter remanded for a new
determination without any reference whatsoever to Dr. O’Brien’s medical
opinions. However, as the Board correctly noted, such a result would be
inconsistent with this Court’s prior opinion. The last time this case was before us,
we explicitly held that Dr. O’Brien’s opinion was not so faulty or so substantially
incomplete as to require its exclusion.2 Furthermore, we agreed with the Board
that the ALJ could rely on the opinion as long it was clear that he had a proper
understanding of what Dr. O’Brien did and did not rely on in reaching his opinion
and made a reasoned decision to rely on it notwithstanding its shortcomings.
To this end, we urged the ALJ on remand to provide a more complete
analysis of his understanding of Dr. O’Brien’s report and the other evidence of
record. The ALJ’s remand opinion, which incorporated his prior opinions by
reference, substantially complies with our directives. The ALJ correctly observed
that Dr. O’Brien was off by a few weeks in his assessment of when Turner first
complained of neck pain and that Dr. O’Brien had not reviewed Turner’s physical
2
We note that since our initial remand, the Kentucky Supreme Court has continued to apply
Cepero consistent with our prior analysis. See Yahagi America Molding, Inc. v. Craine, No.
2021-SC-0262-WC, 2022 WL 17726210, at *5 (Ky. Dec. 15, 2022); Papineau v. Trans Ash Inc.,
No. 2020-SC-0296-WC, 2021 WL 2617124, at *12 (Ky. Jun. 17, 2021); Packers Sanitation
Services v. Cabrera, No. 2020-SC-0215-WC, 2021 WL 1133613, at *3 (Ky. Mar. 25, 2021).
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therapy records. Nevertheless, the ALJ pointed out it is clear from the evidence of
record that Turner did not affirmatively complain of neck pain until several weeks
after his fall, which is consistent with Dr. O’Brien’s statements, even if those
statements are off by a week or two. The ALJ further noted that he was persuaded
by Dr. O’Brien’s opinion because it was based on subsequent imaging of Turner’s
cervical spine. The ALJ determined that the imaging and Dr. O’Brien’s
assessment that the cervical changes were degenerative overrode his minor
misstatement of the dates and his failure to reference having reviewed the physical
therapy records.
We are cognizant that there are several other medical opinions in the
record that are at odds with Dr. O’Brien’s opinion; however, proof is not a
numbers game. The ALJ was not required to discount Dr. O’Brien’s report simply
because it was in the minority. The ALJ was free to pick and choose which
evidence he found most convincing.
“No purpose is served by second-guessing such judgment calls, let
alone third-guessing them.” Western Baptist Hosp., 827 S.W.2d at 687. “[T]his
debatable issue has already been fully debated and reasonably resolved. It merits
no further consideration.” Id. at 688. The fact that the ALJ decided this case in a
way that differed from how this Court or even the Board might have decided the
case is not a basis for reversal.
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IV. CONCLUSION
For the reasons set forth above, we affirm the Board’s June 18, 2021,
opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE
COMMONWEALTH OF
Jeffery A. Roberts KENTUCKY, DEPARTMENT OF
Murray, Kentucky CORRECTIONS:
Sara May
Pikeville, Kentucky
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