RENDERED: JANUARY 12, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1201-WC
BELINDA TYGRETT APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-19-00793
NORTON HEALTHCARE; HONORABLE GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.
CETRULO, JUDGE: Belinda Tygrett (“Tygrett”) appeals from the Opinion and
Order of the Workers’ Compensation Board (the “Board”), which affirmed the
Opinion and Order of the Administrative Law Judge (“ALJ”). Having reviewed
the record on appeal, we affirm. BACKGROUND
In February 2019, Tygrett began working for Norton Healthcare as a
registered nurse in the emergency department. She testified that she was injured
on March 24, 2019 while transporting a patient from the emergency department to
a room. She completed her shift and did not seek immediate treatment. A few
weeks later, she began treatment reporting “right hip pain for two weeks.” She
denied low back pain, and the only diagnosis in the medical records was right hip
pain. However, she alleged in the Form 1011 that she injured both her low back
and hips/groin. Ultimately, in 2021, Tygrett underwent a right total hip
replacement, which was considered work-related and compensable. Dr. Lawrence
Schaper performed the hip replacement, and on November 4, 2021, he determined
that she had reached maximum medical improvement (“MMI”) from the hip
injury. While she had other complaints that he felt were due to a lumbar problem,
he did not state that those problems were related to the work accident.
However, in the intervening period and in an interlocutory decision,
the ALJ had denied her claim for a low back injury. Thereafter, Tygrett presented
additional evidence from an evaluating physician, Dr. Barefoot, who opined that
the lumbar condition was also work-related. The employer presented additional
evidence from its evaluating physician, Dr. Loeb, that the lumbar issues were
1 The Form 101 is the initiating application to commence an injury claim.
-2- degenerative and not work-related. The final and appealable opinion, award, and
order was entered on January 6, 2023.
With regard to the low back claim, the ALJ found that no evidence
presented since the interlocutory decision was so persuasive as to warrant
overturning that decision. Rather, the ALJ found, “[Tygrett] has not carried her
burden of proving her alleged lumbar condition is work-related and, in this regard,
finds Dr. Loeb’s opinions most persuasive.” Thereafter, the ALJ entered orders on
Tygrett’s petitions for reconsideration, again confirming the dismissal of the low
back claim, and addressing the MMI date for Tygrett as to her awarded benefits.
In her appeal to the Board, Tygrett asserted that the ALJ erred by
finding that she did not sustain a work-related back injury; in determining the date
of her MMI; and in failing to enhance her award of permanent partial disability
(“PPD”) benefits pursuant to Kentucky Revised Statute (“KRS”) 342.730(1)(c)1.
The Board, in a 25-page opinion issued on September 8, 2023, affirmed the ALJ on
all issues. On further petition for review to this Court, Tygrett presents the same
arguments.
STANDARD OF REVIEW
As our Supreme Court has recently reaffirmed, an appeal from the
decision of an ALJ “is a matter of legislative grace” rather than a matter of right, as
workers’ compensation proceedings are administrative and a creature of statute.
-3- Lexington Fayette Urb. Cnty. Gov’t v. Gosper, 671 S.W.3d 184, 198-99 (Ky. 2023)
(citing B.L. Radden & Sons, Inc. v. Copley, 891 S.W.2d 84, 86 (Ky. App. 1995)).
That statute, and specifically KRS 342.285, designates the ALJ as the
finder of fact with the authority to determine the quality, character, and substance
of the evidence presented. Caudill v. Maloney’s Disc. Stores, 560 S.W.2d 15, 16
(Ky. 1977). Further, “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[.]” Bowerman v. Black Equip. Co., 297 S.W. 3d 858, 866 (Ky. App.
2009) (citation omitted).
ANALYSIS
Here, Tygrett argues that the ALJ “misinterpreted” the lay and
medical evidence concerning the alleged back injury and contends that the Board
erred in finding that there was insufficient evidence of a work-related back injury.
Tygrett primarily asserts that there was no evidence of a previous back injury or
symptoms before the March 2019 work event. Furthermore, she argues that there
was at least a temporary back injury entitling her to temporary benefits. The Board
addressed both of those claims, noting that because Tygrett was unsuccessful in
meeting her burden regarding her alleged work-related low back injury, the
question on appeal was simply whether the evidence “compelled” a different
result. See Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).
-4- Upon review of the voluminous medical evidence, it found that the record did not
compel a different result.
As the Board noted below, there was no causal connection between
the low back complaints and the work-related incident contained within the initial
treatment records. While there was a subsequent medical report produced after the
ALJ’s interlocutory opinion and order that related the back complaints to the
incident, the ALJ was not required to rely upon that report, in light of other
conflicting medical opinions. When there is conflicting medical evidence, “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) (citation omitted). The
ALJ’s analysis of the experts’ opinions, the testimony, and the medical records was
very thorough. On appeal, Tygrett is simply asking this Court to substitute its
interpretation of the evidence, which we cannot do. The ALJ and Board addressed
all of the evidence and opinions and provided an explanation for its opinions.
In support of a temporary award for a back injury, Tygrett cites
Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001). Robertson does
recognize that a worker may establish a temporary injury without a permanent
harmful change that results in an award of permanent benefits. However, in
Robertson, the ALJ concluded that the claimant suffered a work-related injury. Id.
at 286. Here, as the Board noted, there was no determination of a work-related
-5- back injury. Absent a finding that Tygrett sustained a work-related lumbar spine
injury in March 2019, there was no basis to determine a temporary injury or
“harmful change to the human organism[,]” as defined by the Workers’
Compensation Act.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JANUARY 12, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1201-WC
BELINDA TYGRETT APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-19-00793
NORTON HEALTHCARE; HONORABLE GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, LAMBERT, AND TAYLOR, JUDGES.
CETRULO, JUDGE: Belinda Tygrett (“Tygrett”) appeals from the Opinion and
Order of the Workers’ Compensation Board (the “Board”), which affirmed the
Opinion and Order of the Administrative Law Judge (“ALJ”). Having reviewed
the record on appeal, we affirm. BACKGROUND
In February 2019, Tygrett began working for Norton Healthcare as a
registered nurse in the emergency department. She testified that she was injured
on March 24, 2019 while transporting a patient from the emergency department to
a room. She completed her shift and did not seek immediate treatment. A few
weeks later, she began treatment reporting “right hip pain for two weeks.” She
denied low back pain, and the only diagnosis in the medical records was right hip
pain. However, she alleged in the Form 1011 that she injured both her low back
and hips/groin. Ultimately, in 2021, Tygrett underwent a right total hip
replacement, which was considered work-related and compensable. Dr. Lawrence
Schaper performed the hip replacement, and on November 4, 2021, he determined
that she had reached maximum medical improvement (“MMI”) from the hip
injury. While she had other complaints that he felt were due to a lumbar problem,
he did not state that those problems were related to the work accident.
However, in the intervening period and in an interlocutory decision,
the ALJ had denied her claim for a low back injury. Thereafter, Tygrett presented
additional evidence from an evaluating physician, Dr. Barefoot, who opined that
the lumbar condition was also work-related. The employer presented additional
evidence from its evaluating physician, Dr. Loeb, that the lumbar issues were
1 The Form 101 is the initiating application to commence an injury claim.
-2- degenerative and not work-related. The final and appealable opinion, award, and
order was entered on January 6, 2023.
With regard to the low back claim, the ALJ found that no evidence
presented since the interlocutory decision was so persuasive as to warrant
overturning that decision. Rather, the ALJ found, “[Tygrett] has not carried her
burden of proving her alleged lumbar condition is work-related and, in this regard,
finds Dr. Loeb’s opinions most persuasive.” Thereafter, the ALJ entered orders on
Tygrett’s petitions for reconsideration, again confirming the dismissal of the low
back claim, and addressing the MMI date for Tygrett as to her awarded benefits.
In her appeal to the Board, Tygrett asserted that the ALJ erred by
finding that she did not sustain a work-related back injury; in determining the date
of her MMI; and in failing to enhance her award of permanent partial disability
(“PPD”) benefits pursuant to Kentucky Revised Statute (“KRS”) 342.730(1)(c)1.
The Board, in a 25-page opinion issued on September 8, 2023, affirmed the ALJ on
all issues. On further petition for review to this Court, Tygrett presents the same
arguments.
STANDARD OF REVIEW
As our Supreme Court has recently reaffirmed, an appeal from the
decision of an ALJ “is a matter of legislative grace” rather than a matter of right, as
workers’ compensation proceedings are administrative and a creature of statute.
-3- Lexington Fayette Urb. Cnty. Gov’t v. Gosper, 671 S.W.3d 184, 198-99 (Ky. 2023)
(citing B.L. Radden & Sons, Inc. v. Copley, 891 S.W.2d 84, 86 (Ky. App. 1995)).
That statute, and specifically KRS 342.285, designates the ALJ as the
finder of fact with the authority to determine the quality, character, and substance
of the evidence presented. Caudill v. Maloney’s Disc. Stores, 560 S.W.2d 15, 16
(Ky. 1977). Further, “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[.]” Bowerman v. Black Equip. Co., 297 S.W. 3d 858, 866 (Ky. App.
2009) (citation omitted).
ANALYSIS
Here, Tygrett argues that the ALJ “misinterpreted” the lay and
medical evidence concerning the alleged back injury and contends that the Board
erred in finding that there was insufficient evidence of a work-related back injury.
Tygrett primarily asserts that there was no evidence of a previous back injury or
symptoms before the March 2019 work event. Furthermore, she argues that there
was at least a temporary back injury entitling her to temporary benefits. The Board
addressed both of those claims, noting that because Tygrett was unsuccessful in
meeting her burden regarding her alleged work-related low back injury, the
question on appeal was simply whether the evidence “compelled” a different
result. See Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984).
-4- Upon review of the voluminous medical evidence, it found that the record did not
compel a different result.
As the Board noted below, there was no causal connection between
the low back complaints and the work-related incident contained within the initial
treatment records. While there was a subsequent medical report produced after the
ALJ’s interlocutory opinion and order that related the back complaints to the
incident, the ALJ was not required to rely upon that report, in light of other
conflicting medical opinions. When there is conflicting medical evidence, “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) (citation omitted). The
ALJ’s analysis of the experts’ opinions, the testimony, and the medical records was
very thorough. On appeal, Tygrett is simply asking this Court to substitute its
interpretation of the evidence, which we cannot do. The ALJ and Board addressed
all of the evidence and opinions and provided an explanation for its opinions.
In support of a temporary award for a back injury, Tygrett cites
Robertson v. United Parcel Service, 64 S.W.3d 284 (Ky. 2001). Robertson does
recognize that a worker may establish a temporary injury without a permanent
harmful change that results in an award of permanent benefits. However, in
Robertson, the ALJ concluded that the claimant suffered a work-related injury. Id.
at 286. Here, as the Board noted, there was no determination of a work-related
-5- back injury. Absent a finding that Tygrett sustained a work-related lumbar spine
injury in March 2019, there was no basis to determine a temporary injury or
“harmful change to the human organism[,]” as defined by the Workers’
Compensation Act. KRS 342.0011(1). Tygrett had the burden to prove every
element of her claim, including the allegation that she sustained a temporary work-
related back injury. The ALJ determined that the incident did not cause a work-
related injury and thus, Robertson was not applicable.
The second argument on appeal is that the ALJ erred in finding that
Tygrett’s MMI date was November 4, 2021. This date was given by Tygrett’s own
treating orthopedic surgeon, Dr. Schaper. Tygrett argues that Dr. Schaper’s
opinion regarding MMI only pertained to the hip injury, not the back injury.
Tygrett also refers this Court to another doctor’s opinion which concluded that she
reached MMI on April 4, 2022. Again, however, the Board addressed this claim in
its opinion, noting that Dr. Schaper did not believe the low back condition was
work-related, but rather was due to degenerative disc disease. Since he did not
relate that condition to the work incident, there was no need for him to assign a
date for MMI as to the back. Further, the Board held “determinations pertaining to
when a claimant attains MMI are solely within the purview of the ALJ.” The ALJ
has the discretion to decide which medical opinions to rely upon.
-6- Under KRS 342.275, the ALJ is “empowered to function the same as
a trial court trying a case without a jury.” See W. Baptist Hosp. v. Kelly, 827
S.W.2d 685, 687 (Ky. 1992). Our Court has long recognized “that the claimant
bears the burden of proof . . . before the fact-finder with regard to every element of
a workers’ compensation claim.” Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky.
2000) (citations omitted). The opinion of Dr. Schaper provided substantial
evidence to support the ALJ’s finding of MMI, and we affirm the Board on this
issue as well. See Jones v. Brasch-Barry Gen. Contractors, 189 S.W.3d 149 (Ky.
App. 2006).
Lastly, Tygrett argues that the ALJ, and then the Board, erred by
failing to enhance her PPD benefits via the three-multiplier. KRS 342.730(1)(c)1.
That statute provides that if, due to a work-related injury, an “employee does not
retain the physical capacity to return to the type of work that the employee
performed at the time of injury, the benefit for [PPD] shall be multiplied by three
(3) times[.]” Id.
This provision is intended to compensate an injured worker who has a permanent alteration to [her] ability to labor and earn money due to [her] injury. The determination of both the permanence of an employee’s injury and the effect of that injury on the employee’s capacity to return to work is made by the ALJ based on the evidence presented.
-7- Apple Valley Sanitation, Inc. v. Stambaugh, 645 S.W.3d 434, 438-39 (Ky. 2022)
(citation omitted).
Here, Dr. Schaper, Tygrett’s own treating orthopedic physician, did
not believe that she was unable to return to work due to her hip replacement.
Tygrett had in fact returned to work in a nursing position with no restrictions due
to her hip injury. We incorporate the Board’s reasoning on this issue, as follows:
In accordance with the discretion afforded him, the ALJ chose to rely on Dr. Schaper’s opinion in resolving this issue. Even though the record contains evidence favorable to Tygrett on this issue, including Tygrett’s testimony regarding her current symptoms and ability to work and Dr. Barefoot’s opinions as set forth in his April 19, 2022, IME [independent medical evaluation] report, this is not a sufficient basis for reversal of the ALJ’s decision. Where there is conflicting medical evidence, the question of which evidence to believe is within the exclusive province of the ALJ. Pruitt v. Bugg Bros., [547 S.W.2d 123 (Ky. 1977)]; Square D Co. [, 862 S.W.2d 308]. Because Dr. Schaper’s testimony constitutes substantial evidence supporting the ALJ’s ultimate conclusion regarding the applicability of the three-multiplier, we are without authority to disturb his conclusion.
Accordingly, we affirm the Board’s opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE NORTON HEALTHCARE: Ched Jennings Louisville, Kentucky Douglas A. U’Sellis Allison A. Zoeller Louisville, Kentucky
-8- -9-