RENDERED: SEPTEMBER 22, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0604-WC
LABORATORY CORP OF AMERICA APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-21-95319
HUNTER SMITH; HONORABLE JOHN MCCRACKEN,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
AND NO. 2023-CA-0720-WC
HUNTER SMITH CROSS-APPELLANT
CROSS-PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-21-95319
LABORATORY CORP OF AMERICA;
HONORABLE JOHN MCCRACKEN,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD CROSS-APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND JONES, JUDGES.
JONES, JUDGE: On October 17, 2022, an Administrative Law Judge (“ALJ”)
entered a final order directing Laboratory Corp of America (“Labcorp”) to pay
Hunter Smith (“Smith”) permanent partial disability (“PPD”) benefits for
psychological and lower back injuries Smith sustained. Labcorp subsequently
appealed to the Workers’ Compensation Board (“Board”), arguing the ALJ
improperly adjudicated Smith’s psychological injury by relying upon a conditional
psychological impairment rating in ascertaining whether Smith achieved maximum
medical improvement (“MMI”). Smith cross-appealed, arguing the ALJ
improperly adjudicated the whole person impairment (“WPI”) rating applicable to
the post-injury condition of his low back. The Board affirmed. Labcorp and Smith
now respectively appeal and cross-appeal to this Court, reasserting the same
arguments they raised before the Board. Upon review, we likewise affirm.
Before proceeding to our discussion and analysis of these appeals, we
note that the function of further review of the Board by this Court is to correct the
Board only where we perceive that it “has overlooked or misconstrued controlling
-2-
statutes or precedent, or committed an error in assessing the evidence so flagrant as
to cause gross injustice.” W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky.
1992). “Our standard of review in workers’ compensation claims differs
depending on whether we are reviewing questions of law or questions of fact.”
Miller v. Tema Isenmann, Inc., 542 S.W.3d 265, 270 (Ky. 2018). We review de
novo a decision of the Board or ALJ regarding proper interpretation of the law or
its application of facts. Id. (citation omitted). However, with regard to factual
findings, “[t]he ALJ as fact finder has the sole authority to judge the weight,
credibility, substance, and inferences to be drawn from the evidence.” LKLP CAC
Inc. v. Fleming, 520 S.W.3d 382, 386 (Ky. 2017) (citation omitted).
I. Labcorp’s Appeal: 2023-CA-0604-WC
The factual and procedural history relevant to Labcorp’s appeal is as
follows. Smith was employed by Labcorp as a phlebotomist. His last date of work
for Labcorp was January 27, 2021, when a shelving unit fell onto his head,
knocked him to the ground, and landed on his back. Smith later filed an action for
workers’ compensation benefits against Labcorp, asserting among other claims that
his January 27, 2021 work incident caused him psychological injury. In support,
he produced medical records from Dr. Robert Sivley, a clinical psychologist who
performed an Independent Medical Examination (“IME”) of his mental state on
January 5, 2022. Included in these records was Dr. Sivley’s initial report detailing
-3-
his assessment of Smith’s mental condition where, in pertinent part, Dr. Sivley
stated:
This individual has a ratable psychological impairment
resulting from his January, 2021, workplace injury.
However, he may not be at maximum medical
improvement, due to the fact that he has had no mental
health treatment to address these issues, and
antidepressant medication combined with psychotherapy
may well help him to adjust better and feel better
regarding his relatively new physical limitations. Based
on his current symptomatology it is the opinion of the
undersigned that he qualifies for an impairment rating in
Class II-Mild Impairment (American Medical
Association Guides to the Evaluation of Permanent
Impairment, Fifth Edition; Chapter 14-Mental and
Behavioral Disorders; Table 14-1; Page 363). The
second edition of the guides assign percentages of
impairment in the 10 to 20 percent range for Class II.
The undersigned is reluctant to offer a percentage of the
whole person impairment, due to this individual having
not received mental health treatment services which may
improve his psychiatric status.
To reiterate, Dr. Sivley believed that treatment could improve Smith’s
psychological condition, and Smith’s lack of treatment caused him to stop short of
declaring Smith to be at MMI and thus assigning Smith a whole person impairment
rating for it. However, in a February 14, 2022 addendum to his report, he amended
his opinion as follows:
This addendum is to clarify the issue of maximal
medication [sic] improvement with regard to Mr. Smith’s
workplace injury. In my report of that evaluation I
indicated that Mr. Smith would have a Class II
Impairment Rating of 10 to 20 percent under the second
-4-
edition of the AMA Guides. I did not set forth a specific
impairment rating at that time in the hope that Mr. Smith
would be able to improve with mental health treatment.
However, if Mr. Smith is not able to receive mental
health treatment, because the Workers’ Compensation
Carrier does not pay for that treatment, or he is not able
to obtain it from other sources, it would be my opinion
that Mr. Smith is at maximal medical improvement with
regard to his psychological condition and that the
psychological impairment rating as a result of [sic]
January 27th, 2021, work related injury would be 20% of
the whole body under the second edition of the AMA
Guides. If this individual is able to participate in
psychotherapy, he is not yet ratable, due to not being at
maximal medication [sic] improvement[.]
Owing to his deficient finances and Labcorp’s unwillingness to
otherwise pay for it, Smith never received treatment for his alleged psychological
injury prior to when the ALJ rendered his final award. This, in turn, leads to the
sole issue in Labcorp’s appeal. The ALJ ultimately determined that the January
27, 2021 incident did cause Smith a compensable psychological injury; and,
considering Smith’s lack of treatment and the dearth of evidence demonstrating
Smith’s condition had since improved, the ALJ awarded Smith benefits consistent
with Dr. Sivley’s 20% WPI rating. Labcorp has maintained, however, that the ALJ
was precluded from considering Dr. Sivley’s 20% WPI rating because it was
conditional and thus, in Labcorp’s view, did not qualify as the kind of substantial
evidence required to justify an award.
-5-
The Board rejected Labcorp’s argument, as do we. Indeed, our
Supreme Court rejected roughly the same argument nearly ten years ago in Martin
County Coal Co. v. Goble, 449 S.W.3d 362 (Ky. 2014):
The sole issue on appeal is whether there was
substantial evidence to support the ALJ’s finding that
Goble has a permanent psychological impairment rating.
Martin County argues that there was no such evidence for
three interrelated reasons: . . . (3) Dr. Johnson stated he
could not assess a permanent impairment rating because
Goble’s condition could improve with treatment, which
Goble did not receive. . . .
...
As to the third argument, a permanent impairment
rating is “the percentage of whole body impairment
caused by the injury or occupational disease as
determined by the ‘Guides to the Evaluation of
Permanent Impairment’” (the Guides). KRS
342.0011(35). As noted by Martin County, the Guides
defines “permanent impairment” as “[a]n impairment that
has reached maximal medical improvement.” Id. at 602.
The Guides defines “maximal medical improvement” as
“[a] condition or state that is well stabilized and unlikely
to change substantially in the next year, with or without
medical treatment. Over time, there may be some
change; however, further recovery or deterioration is not
anticipated.” Id. at 601.
It is true that Dr. Johnson stated he could not
estimate what Goble’s permanent impairment was at the
time of his evaluation and that any impairment should
improve with physical and psychological treatment.
However, he also stated that any improvement in Goble’s
psychological condition was dependent, in part, on a
reduction of pain and an increase in functional activities.
Goble testified his pain had not improved significantly;
-6-
his functional abilities had not increased significantly;
and he had not gotten any psychological/psychiatric
treatment. Therefore, the ALJ could reasonably infer that
Goble’s psychological condition had stabilized and that
Goble had reached maximum medical improvement.
Furthermore, the Guides states “[a] patient may
decline surgical, pharmacologic, or therapeutic treatment
of an impairment. If a patient declines therapy for a
permanent impairment, that decision neither decreases
nor increases the estimated percentage of the individual’s
impairment.” The Guides at 20. Thus, contrary to
Martin County’s argument, Goble’s failure to seek
psychological/psychiatric treatment did not bar Dr.
Johnson from assigning a permanent impairment rating.
As noted above, the ALJ was free to infer that Goble had
reached maximum medical improvement, and he was
also free to infer that Dr. Johnson’s estimated impairment
rating was permanent. Thus, the ALJ’s adoption of Dr.
Johnson’s estimated impairment rating was supported by
evidence of substance, and we cannot disturb it on
appeal.
Id. at 366-67 (internal footnote omitted).
There is no meaningful difference between Dr. Sivley’s conditional
impairment rating in this case and Dr. Johnson’s estimated impairment rating in
Goble; and Goble is binding precedent that such a conditional impairment rating
can, under the circumstances, qualify as substantial evidence supportive of an
award of benefits. Labcorp’s sole appellate argument accordingly lacks merit and
provides no basis for reversing the decision of the Board.
-7-
II. Smith’s Cross-Appeal: 2023-CA-0720-WC
Smith also asserted a claim for benefits against Labcorp based upon
an injury to his lower back he allegedly sustained as a result of the January 27,
2021 work incident. His claim was successful, but not to the extent he had hoped.
His total award of PPD benefits encompassed what the ALJ ultimately determined
was a resulting 5% WPI to his low back, but Smith argues on cross-appeal that the
ALJ’s determination was improper, and that his impairment rating should have
been higher. We disagree.
For context, Smith’s argument involves two conflicting expert
opinions about the post-injury condition of his low back – one from Dr. Jules
Barefoot, and the other from Dr. Michael Best. The Board aptly summarized this
evidence as follows:
Dr. Barefoot evaluated Smith on November 10,
2021 at the request of Smith’s counsel. He reviewed
Smith’s history of left L4-L5 hemilaminectomy, medical
facetectomy, diskectomy, and foraminotomy. He noted
Smith’s last day of work with Labcorp was in January
2021 and he has not worked since that date. Dr. Barefoot
diagnosed a January 27, 2021 work injury to the lumbar
spine. He noted the April 5, 2021 lumbar spine surgery
and reviewed the February 10, 2021 and September 7,
2021 lumbar MRI reports. He assessed a 24% whole
person impairment rating but found a 5% impairment for
pre-existing back condition to the lumbar spine. Thus,
Dr. Barefoot opined Smith has a 19% impairment rating
related to the January 27, 2021 work injury. Dr. Barefoot
recommended pain management and that Smith be
allowed to sit and rest intermittently. He stated Smith
-8-
would have difficulty with prolonged standing, walking,
climbing and descending stairs.
Dr. Barefoot provided a supplemental report on
September 10, 2022 after reviewing Dr. Best’s medical
report. He disagreed with Dr. Best’s statement that
Smith’s condition was not work-related. He also took
issue with Dr. Best’s reference to Smith’s back pain two
days before the work incident as the record indicated
Smith had no pain that day and rated his pain level at
zero.
...
Dr. Best evaluated Smith and reviewed medical
records on June 17, 2022 at Labcorp’s request. Dr. Best
diagnosed a herniated L4-L5 disc, left, status post left
hemilaminotomy, medial facetectomy, discectomy and
foraminotomy on April 5, 2021. He stated Smith
displayed significant magnification of symptoms and
believes Smith’s prognosis was poor due to marked
overreaction. He believed Smith’s low back condition
occurred prior to the January 27, 2021 work incident. Dr.
Best referred to a January 25, 2021 physical therapy visit
specifically emphasizing that back pain began on or
about five years previously. Regarding causation, Dr.
Best again emphasized that Smith was complaining of
back pain two days before the work event when he went
to physical therapy. Dr. Best found Smith had an active
medical condition before January 27, 2021. He placed
Smith at MMI in September 2021. Dr. Best found Smith
met the criteria for a Lumbar DRE Category III 10%
impairment based on a pre-existing active medical
condition and not a work-related injury. Dr. Best
disagreed with Dr. Barefoot’s assessment of a 5%
impairment for a prior active condition as he believed the
entire rating was due to a prior active condition.
-9-
In determining Smith sustained an injury to his low back from the
January 27, 2021 work incident, the ALJ relied on Dr. Barefoot in resolving
causation. He accepted Dr. Best’s 10% impairment rating utilizing the lumbar
diagnosis-related estimate (“DRE”) Category III. He did not use Dr. Barefoot’s
24% impairment rating based on the range-of-motion (“ROM”) method but
utilized Dr. Barefoot’s assessment of 5% impairment for pre-existing condition,
which Dr. Barefoot had based on the lumbar DRE Category II. Consequently, the
ALJ determined the work incident had caused Smith a 5% net whole person
impairment attributable to his low back.
We now proceed to the specifics of Smith’s argument. Smith faults
the ALJ for borrowing from both Dr. Barefoot’s and Dr. Best’s opinions to arrive
at an ultimate impairment rating because these experts (1) utilized different
methodologies to arrive at their respective ratings, and (2) disagreed regarding the
work-relatedness of his low back condition. With that said, both of these points
were addressed, and we believe properly resolved, by the Board in its analysis. We
quote and adopt the Board’s opinion as follows:
First, Smith contends the impairment rating found
by the ALJ did not conform to the AMA Guides. He
contends the ROM method utilized by Dr. Barefoot was
the correct method for determining his lumbar
impairment. In his view, even though Smith had only
one back surgery, implicating the DRE method, the fact
that he had acknowledged prior back complaints
mandated the use of the ROM method. Smith cites to the
-10-
criteria for use of the ROM method, particularly the
paragraph based on recurrent radiculopathy or recurrent
injury in the same spinal region. AMA Guides at 379-
380. While Smith had periodic injections over the
preceding years, it was disputed whether he was
symptomatic when he went to a physical therapist on
January 25, 2021, a couple days before the injury.
In Kentucky River Enterprises, Inc., v. Elkins, 107
S.W.3d 206 (Ky. 2003), the Kentucky Supreme Court
held the proper interpretation of the AMA Guides is a
medical question solely within the province of the
medical experts. Where opinions from medical experts
conflict regarding the appropriate percentage, it is the
ALJ’s function, as fact-finder, to weigh the evidence and
select the rating upon which permanent disability
benefits, if any, will be awarded. Knott County Nursing
Home v. Wallen, 74 S.W.3d 706 (Ky. 2002).
In George Humfleet Mobile Homes v. Christman,
125 S.W.3d 288 (Ky. 2004), the Supreme Court further
held that, while an ALJ is not authorized to
independently interpret the AMA Guides, as fact-finder,
he may consult them in the process of assigning weight
and credibility to evidence. Although assigning a
permanent impairment rating is a matter for medical
experts, determining the weight and character of medical
testimony and drawing reasonable inferences therefrom
are matters for the ALJ. Wallen, supra. The ALJ is not
required to engage in a detailed analysis under the AMA
Guides, nor is he required to engage in a detailed
explanation of the minutia of his reasoning in reaching a
particular result. Shields v. Pittsburgh and Midway Coal
Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big
Sandy Community Action Program v. Chaffins, 502
S.W.2d 526 (Ky. 1973).
Here, we have conflicting medical opinions, from
which the ALJ has full authority to pick and choose. The
ALJ accepted Dr. Best’s 10% impairment rating for the
-11-
post-surgery condition, which he obtained utilizing the
DRE method, Category III, and Dr. Barefoot’s 5%
impairment rating attributable to the pre-existing active
condition, also based on the DRE method, Category II.
The ALJ rejected the 24% AMA rating assigned by Dr.
Barefoot based on the ROM method. The AMA Guides
specifically state the DRE method is the principal
methodology used to evaluate an individual who has a
distinct injury. AMA Guides, Sec. 15.2, p. 379. Further,
regarding apportionment, the AMA Guides state,
“Ideally, use the same method to compare the
individual’s prior and present condition.” Id. at 381.
While there are various criteria for using the ROM
method, it is the ALJ’s prerogative to rely on the medical
opinions and pick and choose what to rely upon.
Smith contends Dr. Best’s opinion on causation
was based on erroneous information, whether Smith
complained of pain at the physical therapy visit. Smith
states the pre-existing active complaints were fully
acknowledged by both Dr. Lanford and Dr. Barefoot
when they opined the work injury necessitated the need
for surgery. There was a dispute as to what was stated at
the physical therapy visit a few days before the injury.
As to whether Smith complained of back pain on that
date, his testimony indicated he did not. Regardless, it
was for the ALJ to parse through the evidence and pick
and choose what evidence to rely upon. See Copar, Inc.
v. Rogers, 127 S.W.3d 554, 561 (Ky. 2003); Pruitt v.
Bugg Brothers, 547 S.W.2d 123 (Ky. 1977).
The ALJ did not rely on Dr. Barefoot’s 24%
impairment rating based on the ROM method but
accepted his rating for pre-existing active impairment.
The ALJ accepted Dr. Best’s post-surgery impairment
rating but rejected his opinion that this rating was due
solely to a pre-existing condition. Smith contends that
since Dr. Best did not believe he suffered a work-related
injury, he cannot assign an impairment rating for his back
condition. Smith supports this argument by stating a
-12-
doctor who opines there is no work injury cannot assign a
MMI date for that work injury. The two issues are
distinguishable. The MMI date for recovery from a work
injury is based on an opinion that there was a work
injury. The assigning of an impairment rating analyzes
the condition of the individual, and whether the rating
relates to conditions pre-injury or caused by the injury is
a separate matter. It is for the ALJ, and not this Board, to
make this finding when analyzing conflicting evidence
regarding causation and the degree of a pre-existing
active condition. “The proper interpretation of the
Guides and the proper assessment of an impairment
rating are medical questions.” Plumley v. Kroger, Inc.,
557 S.W.3d 905, 913 (Ky. 2018). It is also the ALJ’s
sole authority as fact-finder to judge the weight,
credibility, substance, and inferences to be drawn from
the evidence. AK Steel Corp. v. Adkins, 253 S.W.3d 59
(Ky. 2008).
The current appeal is not one where the
impairment ratings assigned are not grounded upon the
AMA Guides, such as utilizing the wrong edition or
adding separate impairment ratings when the Guides
expressly state this is not to be done. See George
Humfleet Mobile Homes v. Christman, supra. The two
physicians expressed conflicting opinions regarding
causation and the proper method to be utilized in
assessing an impairment rating. It was for the ALJ to
choose whom to believe. The case law cited above
supports the ALJ in accepting portions of each
physician’s opinion while rejecting other parts of their
opinion. The ALJ’s lumbar impairment rating was
supported by substantial evidence.
We agree with the Board’s reasoning set forth above. Accordingly,
Smith has put forth no basis for reversing the Board’s decision.
-13-
III. CONCLUSION
Because the Board has not overlooked or misconstrued controlling
statutes or precedent, or otherwise committed an error in assessing the evidence so
flagrant as to cause gross injustice, we affirm with respect to both Labcorp’s
appeal and Smith’s cross-appeal. See Kelly, 827 S.W.2d at 687-88.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSS- BRIEF FOR APPELLEE/CROSS-
APPELLEE LABORATORY CORP APPELLANT HUNTER SMITH:
OF AMERICA:
Jeffery A. Roberts
Jeremy N. Faulk Murray, Kentucky
Louisville, Kentucky
-14-