IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: DECEMBER 18, 2014 NOT TO BE PUBLISHED

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JOHNNY WILDER APPELLANT

ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2013-CA-000820-WC WORKERS' COMPENSATION NO. 11-01566

ENTERPRISE MINING; HONORABLE WILLIAM J. RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES

MEMORANDUM OPINION OF THE COURT

REVERSING

Appellant, Johnny Wilder, appeals from a Court of Appeals decision

which reversed his award of permanent total disability ("PTD") benefits. Wilder

argues that the Court of Appeals erred in reversing his award because the ALJ

had sole discretion to grant an award of PTD benefits and there is substantial

evidence to support the decision. For the below stated reasons, we reverse the

Court of Appeals.

Wilder was employed by Appellee, Enterprise Mining, for approximately

eleven years as a heavy equipment operator. On April 27, 2011, he stopped

working due to severe back and neck pain which was so unbearable that he

was unable to safely operate machinery. Wilder filed a Form 101 on December 5, 2011, alleging cumulative trauma injuries caused during his

employment with Enterprise.

Wilder testified as a part of his claim. He stated that he only has an

eighth grade education and has not obtained a GED. Wilder's job experience

included working as a heavy equipment operator in coal mines for over twenty

years. As a result of this employment, he experienced repetitive trauma to his

back and neck. Wilder testified that he did not experience any significant

symptoms due to the trauma prior to April 2010. However, in April 2010, he

began to feel pain but continued to work until his doctor informed him that his

job caused his condition. Wilder still experiences pain in his neck, back,

elbows, knees, ankles, shoulders, hands, left wrist, and joints. Wilder can walk

using a walker or cane, but his doctors recommend he use a wheelchair.

Wilder also suffers from non-work related degenerative arthritis.'

Wilder was examined by several medical experts as a part of his claim.

Of particular interest is the report of orthopedic surgeon Robert Johnson. Dr.

Johnson assigned Wilder a 45% whole person impairment according to the

AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, of which

he believed 9% was caused by work-related cumulative trauma. The other 36%

of the impairment was due to the non-work related degenerative arthritis. Dr.

Johnson also believed that Wilder not only lacked the physical capacity to

perform his pre-injury job but also could not hold any gainful employment due

to pain and mobility restrictions.

Wilder suffers from ankylosing spondylitis.

2 Dr. Richard Sheridan also examined Wilder. He believed that all of

Wilder's complaints were caused by either degenerative arthritis or Marie-

Strumpell disease. Dr. Sheridan did not believe Wilder's pain was work-related

and assigned no permanent partial impairment rating or work restrictions.

After a review of the evidence, the AL I rendered an opinion and order

which found Wilder was entitled to PTD benefits. However, due to an unrelated

issue, the Board reversed the ALJ and remanded the matter for him to consider

Dr. Sheridan's deposition testimony. After a review of that testimony, the ALJ

again entered an opinion and award finding that Wilder was entitled to PTD

benefits. In so finding, the ALJ stated:

[Wilder] argues that he has sustained a 9% whole person physical impairment and as a result of the work injury. He further argues that he is permanently and totally disabled from work. The defendant argues that the plaintiff sustained no new injury from the work incident.

In the present case the ALJ finds more convincing the opinions of Dr. Johnson. His opinion comports with the treatment records and with the ALJ's perception of [Wilder]. I, therefore find that the plaintiff has sustained a 9% physical whole person impairment.

"'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. To determine if an injured employee is permanently totally disabled, an ALJ must consider what impact the employee's post-injury physical, emotional, and intellectual state has on the employee's ability to find work consistently under normal employment conditions . . . . [and] to work dependably[.]' Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 51 (Ky. 2000). In making that determination, the ALJ must necessarily consider the worker's medical condition . . . [however,] the ALJ is not

3 required to rely upon the vocational opinions of either the medical experts or the vocational experts. A worker's testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured. Id. at 52 (Internal citations omitted). Also, a worker's testimony is competent evidence of his physical condition and of his ability to perform various activities both before and after being injured. Id.; see also Hush v. Abrams, 584 S.W.2d 48 (Ky. 1979). In the present case the ALJ considers [Wilder's] debilitating physical injuries, his limited education and lack of transferrable skills, alongside his work history. [Wilder's] injuries necessitate that he cease working and use a walker or wheelchair just to get around. In spite of his occupational youth, [Wilder] has a steady work history. Thus the AI,J. finds most persuasive the opinions of Dr. Johnson and Mr. Ellis. The ALJ is persuaded that if [Wilder] could work, he would be working. I therefore find that [Wilder] is permanently and totally disabled.

The Board affirmed the ALJ's opinion and order.

Enterprise appealed to the Court of Appeals who reversed the award of

permanent and total disability benefits in a two to one opinion. The majority

opinion believed that the ALJ erroneously relied on Dr. Johnson's report for

three reasons: 1) the report only attributed Wilder's back and neck condition to

the work-related cumulative trauma; 2) the report did not specifically state that

Wilder's cumulative trauma prevented Wilder from being able to work; and 3)

the ALJ misinterpreted a section of the report where Dr. Johnson states that

Wilder does not retain the physical capacity to return to his prior employment.

On remand the ALJ was instructed to enter an award in Wilder's favor for

permanent partial disability benefits based on the 9% impairment rating.

Judge Thompson dissented because he believed that the ALJ's decision to rely

on Dr. Johnson's report in finding that Wilder was permanently and totally

disabled was within his discretion as fact finder. This appeal followed. In reviewing Wilder's argument, we note that the Court of Appeals only

needed to reverse the Board "if it overlooked or misconstrued controlling

statutes or precedent, or committed an error in assessing the evidence so

flagrant as of to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992). The ALJ has the sole authority to determine

the weight, credibility, substance, and inference to be drawn from the evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Further,

[t]he standard of review with regard to a judicial appeal of an administrative decision is limited to determining whether the decision was erroneous as a matter of law. Where the ALJ determines that a worker has satisfied his burden of proof with regard to a question of fact, the issue on appeal is whether substantial evidence supported the determination. Substantial evidence has been defined as some evidence of substance and relevant consequence, having the fitness to induce conviction in the minds of reasonable people. Although a party may note evidence which would have supported a conclusion contrary to the ALJ's decision, such evidence is not an adequate basis for reversal on appeal. The crux of the inquiry on appeal is whether the finding which was made is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law.

Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000).

Keeping these standards in mind, we reverse the Court of Appeals.

The majority opinion attempts to take over the fact finding role from the

ALJ. The Court of Appeals was charged with reviewing the ALJ's opinion and

award to determine whether substantial evidence supported the finding that

Wilder is permanently and totally disabled as a result of cumulative trauma

suffered while working at Enterprise Mining. Instead the Court of Appeals

interpreted the evidence in a manner to support its own conclusion. The ALJ

was free to interpret Dr. Johnson's medical report and the ALJ's conclusions

5 based on those interpretations were not unreasonable. Additionally, the AW

cited not only to Dr. Johnson's report to support his findings but also to a

vocational review, Wilder's limited education, and that Wilder must use a

walker or wheelchair just to move around in finding that he was permanently

and totally disabled. While evidence was presented to counter the ALJ's

conclusion, the mere fact that contrary evidence could lead to a different result

does not provide grounds to reverse the ALL Id.; McCloud v. Beth-Elkhorn

Corp., 514 S.W.2d 46, 47 (Ky. 1974). Additionally, while it is clear that Wilder's

degenerative arthritis is a large part of his disability, the ALJ . was within his

discretion to find, that the work-related cumulative trauma also prevented

Wilder from working. We cannot say that the ALJ's conclusion was so

unreasonable to compel a reversal of his opinion because substantial evidence

supported it.

For the above stated reasons, we reverse the opinion of the Court of

Appeals.

All sitting. All concur.

COUNSEL FOR APPELLANT, JOHNNY WILDER:

McKinnley Morgan

COUNSEL FOR APPELLEE, ENTERPRISE MINING:

Jeffrey Dale Damron

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