RENDERED: AUGUST 29, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0540-WC
CHRISTOPHER THOMAS APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-23-00706
RUSSELLVILLE ELECTRIC PLANT BOARD; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY APPELLEES
OPINION AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT, JUDGES.
THOMPSON, CHIEF JUDGE: Christopher Thomas appeals from an opinion of
the Workers’ Compensation Board (“the Board”) vacating a workers’
compensation award and remanding the case to the Administrative Law Judge (“ALJ”) for additional proceedings. While we do not agree with some of the
conclusions of the Board, we do believe that the Board correctly vacated the award
and remanded to the ALJ.
FACTS AND PROCEDURAL HISTORY
Appellant was employed as an electrical lineman supervisor by the
Russellville Electric Plant Board. Appellant contracted COVID-19 in July of
2021, and believed he contracted COVID while at work. Specifically, Appellant
believed he contracted COVID while riding in a work vehicle with another
employee, Mark Venable, who tested positive for COVID a few days before
Appellant tested positive. Appellant suffered severe complications from COVID
and was unable to return to work.
Appellant eventually filed for workers’ compensation benefits due to
the effects of COVID. The ALJ assigned to the case found that Appellant’s
COVID injuries were work related and awarded him benefits. The Electric Plant
appealed to the Board, which held that the ALJ did not use the proper legal
standard in finding that the COVID injuries were work related. The Board also
held that the ALJ made erroneous findings of fact. This appeal followed.
STANDARD OF REVIEW
[Kentucky Revised Statutes (KRS)] 342.285 designates the ALJ as the finder of fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to
-2- judge the weight, credibility, substance, and inferences to be drawn from the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains that a finding that favors the party with the burden of proof may not be disturbed if it is supported by substantial evidence and, therefore, is reasonable.
AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008). “Substantial evidence
means evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Smyzer v. B. F. Goodrich Chemical
Co., 474 S.W.2d 367, 369 (Ky. 1971) (citation omitted). “The function of further
review of the [Board] in the Court of Appeals is to correct the Board only where
the . . . Court perceives 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.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-
88 (Ky. 1992).
ANALYSIS
Appellant’s first argument on appeal is that the Board erred when it
determined that the ALJ used the wrong legal standard. For a communicable
disease to be considered a work-related injury, the illness must be acquired at work
and “the risk of contracting the disease is increased by the nature of the
employment.” KRS 342.0011(1). This increased risk has been interpreted by our
courts to mean, did an employee’s work expose him or her to a greater risk of
-3- catching a communicable disease than the general public. Dealers Transport Co.
v. Thompson, 593 S.W.2d 84, 89 (Ky. App. 1979).
In the case at hand, the Board held that the ALJ made sufficient
findings that Appellant caught COVID while at work but did not make any
findings or conclusions that Appellant’s employment made him more susceptible
to catching COVID than the general public. Appellant argues that the ALJ did
utilize the correct standard. We agree with Appellant. The ALJ found that
Appellant contracted COVID at work because the linemen would frequently ride to
work sites together in the same truck and multiple linemen were coming down with
COVID in the days leading up to Appellant testing positive. The ALJ specifically
mentioned that Appellant was required to ride in a vehicle with Mr. Venable after
he informed a supervisor that he was symptomatic. The ALJ further found that
none of Appellant’s immediate family, those who he lived with and those who
frequently visited, tested positive for COVID prior to Appellant. Finally, the ALJ
relied on a report from Dr. Bob Moldoveanu that stated Appellant contracted
COVID from work.
As for Appellant’s work making him more susceptible to contracting
COVID than the general public, the ALJ specifically discusses this issue on page
20 of his opinion and order. The ALJ discusses how Appellant was an essential
worker who could not stay at home in lockdown like other workers. The ALJ also
-4- discussed how Appellant was required to ride in a truck with other employees who
were experiencing COVID symptoms, like Mr. Venable, and was unable to
adequately socially distance. We believe this satisfies the second prong in
determining whether a communicable disease is a work-related injury.
While we believe that the ALJ used the correct legal standard to
determine Appellant’s COVID injuries were work related, we agree with the Board
that the ALJ made an erroneous finding of fact. The Board concluded that the ALJ
made an erroneous finding that Appellant was required to ride in a vehicle with
Mr. Venable after he was symptomatic and after he informed a supervisor, Dale
Vowell. We agree. There was no evidence that Appellant was required to ride
with other employees. While employees frequently rode together, it was not a
requirement. Furthermore, there was no evidence that Mr. Venable was
symptomatic when he rode with Appellant. In addition, Mr. Venable did inform
Mr. Vowell that he had been exposed to a family member who had tested positive
for COVID, but he himself had not tested positive and did not have any symptoms.
Mr. Venable was allowed to continue working after this. Two days later, Mr.
Venable informed Mr. Vowell that he was experiencing symptoms and Mr. Vowell
required Mr. Venable to stay home, get tested for COVID, and not return to work
until he received the test results.
-5- Appellant being required to ride in a vehicle with an employee who
was knowingly symptomatic was an erroneous finding, and since this finding was
an essential part of the ALJ’s work-related injury analysis, the case must be
remanded for the ALJ to correct this erroneous finding and determine anew
whether Appellant’s COVID injuries were work-related.
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RENDERED: AUGUST 29, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0540-WC
CHRISTOPHER THOMAS APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-23-00706
RUSSELLVILLE ELECTRIC PLANT BOARD; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY APPELLEES
OPINION AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ECKERLE AND LAMBERT, JUDGES.
THOMPSON, CHIEF JUDGE: Christopher Thomas appeals from an opinion of
the Workers’ Compensation Board (“the Board”) vacating a workers’
compensation award and remanding the case to the Administrative Law Judge (“ALJ”) for additional proceedings. While we do not agree with some of the
conclusions of the Board, we do believe that the Board correctly vacated the award
and remanded to the ALJ.
FACTS AND PROCEDURAL HISTORY
Appellant was employed as an electrical lineman supervisor by the
Russellville Electric Plant Board. Appellant contracted COVID-19 in July of
2021, and believed he contracted COVID while at work. Specifically, Appellant
believed he contracted COVID while riding in a work vehicle with another
employee, Mark Venable, who tested positive for COVID a few days before
Appellant tested positive. Appellant suffered severe complications from COVID
and was unable to return to work.
Appellant eventually filed for workers’ compensation benefits due to
the effects of COVID. The ALJ assigned to the case found that Appellant’s
COVID injuries were work related and awarded him benefits. The Electric Plant
appealed to the Board, which held that the ALJ did not use the proper legal
standard in finding that the COVID injuries were work related. The Board also
held that the ALJ made erroneous findings of fact. This appeal followed.
STANDARD OF REVIEW
[Kentucky Revised Statutes (KRS)] 342.285 designates the ALJ as the finder of fact. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985), explains that the fact-finder has the sole authority to
-2- judge the weight, credibility, substance, and inferences to be drawn from the evidence. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986), explains that a finding that favors the party with the burden of proof may not be disturbed if it is supported by substantial evidence and, therefore, is reasonable.
AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008). “Substantial evidence
means evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Smyzer v. B. F. Goodrich Chemical
Co., 474 S.W.2d 367, 369 (Ky. 1971) (citation omitted). “The function of further
review of the [Board] in the Court of Appeals is to correct the Board only where
the . . . Court perceives 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.” Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-
88 (Ky. 1992).
ANALYSIS
Appellant’s first argument on appeal is that the Board erred when it
determined that the ALJ used the wrong legal standard. For a communicable
disease to be considered a work-related injury, the illness must be acquired at work
and “the risk of contracting the disease is increased by the nature of the
employment.” KRS 342.0011(1). This increased risk has been interpreted by our
courts to mean, did an employee’s work expose him or her to a greater risk of
-3- catching a communicable disease than the general public. Dealers Transport Co.
v. Thompson, 593 S.W.2d 84, 89 (Ky. App. 1979).
In the case at hand, the Board held that the ALJ made sufficient
findings that Appellant caught COVID while at work but did not make any
findings or conclusions that Appellant’s employment made him more susceptible
to catching COVID than the general public. Appellant argues that the ALJ did
utilize the correct standard. We agree with Appellant. The ALJ found that
Appellant contracted COVID at work because the linemen would frequently ride to
work sites together in the same truck and multiple linemen were coming down with
COVID in the days leading up to Appellant testing positive. The ALJ specifically
mentioned that Appellant was required to ride in a vehicle with Mr. Venable after
he informed a supervisor that he was symptomatic. The ALJ further found that
none of Appellant’s immediate family, those who he lived with and those who
frequently visited, tested positive for COVID prior to Appellant. Finally, the ALJ
relied on a report from Dr. Bob Moldoveanu that stated Appellant contracted
COVID from work.
As for Appellant’s work making him more susceptible to contracting
COVID than the general public, the ALJ specifically discusses this issue on page
20 of his opinion and order. The ALJ discusses how Appellant was an essential
worker who could not stay at home in lockdown like other workers. The ALJ also
-4- discussed how Appellant was required to ride in a truck with other employees who
were experiencing COVID symptoms, like Mr. Venable, and was unable to
adequately socially distance. We believe this satisfies the second prong in
determining whether a communicable disease is a work-related injury.
While we believe that the ALJ used the correct legal standard to
determine Appellant’s COVID injuries were work related, we agree with the Board
that the ALJ made an erroneous finding of fact. The Board concluded that the ALJ
made an erroneous finding that Appellant was required to ride in a vehicle with
Mr. Venable after he was symptomatic and after he informed a supervisor, Dale
Vowell. We agree. There was no evidence that Appellant was required to ride
with other employees. While employees frequently rode together, it was not a
requirement. Furthermore, there was no evidence that Mr. Venable was
symptomatic when he rode with Appellant. In addition, Mr. Venable did inform
Mr. Vowell that he had been exposed to a family member who had tested positive
for COVID, but he himself had not tested positive and did not have any symptoms.
Mr. Venable was allowed to continue working after this. Two days later, Mr.
Venable informed Mr. Vowell that he was experiencing symptoms and Mr. Vowell
required Mr. Venable to stay home, get tested for COVID, and not return to work
until he received the test results.
-5- Appellant being required to ride in a vehicle with an employee who
was knowingly symptomatic was an erroneous finding, and since this finding was
an essential part of the ALJ’s work-related injury analysis, the case must be
remanded for the ALJ to correct this erroneous finding and determine anew
whether Appellant’s COVID injuries were work-related.
Even though we have held that the case must be returned to the ALJ,
we must also discuss one other issue. The Board also held as erroneous the ALJ’s
finding that Dr. Moldoveanu concluded Appellant’s COVID was work related. Dr.
Moldoveanu’s report stated:
Our patient had a diagnosis of COVID associated with respiratory failure and prolonged hospitalization. He continues to have persistent respiratory distress up to the current time which is supported by the evidence on the [pulmonary function test]. Although COVID was endemic during 2021 he is most likely to have contracted the disease [from] close personal contacts, such as during his work as a manager.
The Board believed the ALJ misunderstood Dr. Moldoveanu’s report. The Board
concluded that the phrase “such as during his work as a manager” did not mean
Appellant contracted COVID at work, but was merely an example of where he
could have contracted COVID.
We disagree with the Board as to this issue because Dr. Moldoveanu’s
report also indicates Appellant’s COVID was work related in other sections. Just
before the above-quoted section of the report are places for Dr. Moldoveanu to
-6- check certain yes or no boxes. One section asks: “Within reasonable medical
probability, is plaintiff’s disease or condition causally related to his/her work
environment[?]” To this, Dr. Moldoveanu selected the “Yes” option. Another
section then asks: “Within reasonable medical probability, is any pulmonary
impairment caused in part by factors in plaintiff’s work environment (e.g., coal
dust, chemicals)?” Dr. Moldoveanu selects the “Yes” option for this question too.
Based on the totality of Dr. Moldoveanu’s report, it was not clearly erroneous for
the ALJ to find that Dr. Moldoveanu concluded Appellant’s COVID was work
related. The Board erred as to this issue.
Appellant raises other issues on appeal; however, because the case is
being remanded to the ALJ to make a new work-related injury determination, these
issues are moot.
CONCLUSION
Based on the foregoing, we believe that the Board erred in holding
that the ALJ used the incorrect legal standard in determining that Appellant’s
COVID injuries were work related. We also reverse the Board’s finding that the
ALJ erred in his interpretation of Dr. Moldoveanu’s report. We affirm the Board’s
conclusion that the ALJ made a clearly erroneous finding regarding Appellant
being required to ride in a vehicle with a symptomatic Mr. Venable. Although we
conclude that the Board did err in its opinion, the Board was ultimately correct that
-7- the workers’ compensation award should be vacated, and the case remanded to the
ALJ.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE RUSSELLVILLE ELECTRIC Jeffery A. Roberts PLANT BOARD: Murray, Kentucky R. Christion Hutson Paducah, Kentucky
-8-