Ellis Joiner v. Mac Construction & Excavation

• Court: Kentucky Supreme Court
• Decided: February 19, 2026
• Docket: 2025-SC-0248
• Status: Unpublished

Opinion

IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: FEBRUARY 19, 2026 NOT TO BE PUBLISHED

Supreme Court of Kentucky 2025-SC-0248-WC

ELLIS JOINER APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2025-CA-0237 WORKERS' COMPENSATION BOARD NO. WC-22-00713

MAC CONSTRUCTION & APPELLEES EXCAVATION; HONORABLE PHILLIPE RICH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

MEMORANDUM OPINION OF THE COURT

AFFIRMING

In this workers’ compensation appeal, Ellis Joiner argues that the

Administrative Law Judge (ALJ) erred by failing to adopt impairment ratings for

his left shoulder and cervical spine. Joiner, a carpenter employed by MAC

Construction, fell off a ladder while on the job and sustained multiple injuries.

The ALJ awarded temporary total disability benefits, permanent partial

disability benefits, and medical expenses. Joiner asserted that he was also

entitled to compensation for injuries he sustained to his left shoulder and

cervical spine, but the ALJ did not award benefits for these injuries. On

appeal, both the Workers’ Compensation Board (Board) and the Court of Appeals affirmed the Opinion, Award and Order of the ALJ. Because the ALJ

appropriately relied on evidence of record to render his decision, we likewise

affirm.

FACTS AND PROCEDURAL HISTORY

Ellis Joiner began working as a carpenter for MAC Construction in 2016.

He worked on large commercial jobs, which required working with tools, lifting

up to fifty pounds, bending, squatting, lots of overhead work, and work on

ladders. On July 15, 2020, he was on an extension ladder that fell, causing

him to fall on his right arm and wrist onto a concrete structure and then

further down into a pit.

The following day, Joiner sought treatment at a local hospital. In the

ensuing months, Joiner underwent several upper extremity surgeries,

including a left rotator cuff repair in November 2022, attended numerous

physical therapy sessions, received injections, and took several prescription

medications. Joiner returned to work for MAC Construction on a light-duty

basis on August 29, 2020, and last worked for MAC Construction on November

5, 2022.

Joiner filed a workers’ compensation claim alleging injuries to both

shoulders, right wrist, left elbow, and back. The parties submitted competing

expert opinions regarding the degree of Joiner’s impairment to various parts of

his body. Pertinent to this appeal, Joiner submitted the medical report of Dr.

Jules Barefoot who assessed a 37% whole person impairment rating, which

included a 4% impairment for the left shoulder and an 8% impairment for the

2 cervical spine. MAC Construction submitted the report of Dr. Ellen Ballard,

who assessed a total whole person impairment rating of 12%, but did not

assess any impairment to either shoulder or the cervical spine. Dr. Ballard

concluded that Joiner was “inconsistent with his shoulder motion” and

therefore she could not calculate an impairment for his shoulders. However,

because she reviewed records from the physician who performed the shoulder

surgeries, she asserted there was no evidence of any shoulder impairment. Dr.

Scott Kuiper, the physician who performed rotator cuff repairs on both of

Joiner’s shoulders, assigned a 1% whole person impairment rating, which he

attributed to the upper extremity but failed to identify whether the impairment

was attributable to the right or left upper extremity.

Ultimately, the ALJ awarded temporary total disability benefits,

permanent partial disability benefits, and medical benefits. As to permanent

partial disability benefits, the ALJ assigned a 24% impairment rating, which

comprised of the following: 1% impairment for the left bicep and elbow, as

assigned by Dr. Huey Tien; 14% for the right shoulder and wrist, as assigned

by Dr. Barefoot; and 5% impairment each for the thoracic and lumbar injuries,

as assigned by Dr. Ballard. 1 The ALJ stated he was not persuaded that Joiner

sustained a cervical injury, relying on the medical records of Drs. Aaron

Compton and Venu Vemuri who only recorded and treated thoracic and lumbar

1 We acknowledge that the ALJ’s calculation of Joiner’s total whole person

impairment of 24% is seemingly inaccurate (1% + 14% + 5% + 5% = 25%). Yet in the Opinion, Award and Order the ALJ consistently references a 24% total impairment rating. No party has addressed this inconsistency, and we therefore accept the 24% impairment rating. 3 complaints in the initial months following the July 15, 2020 work injury.

Joiner filed a petition for reconsideration arguing, in pertinent part, that the

ALJ erred by failing to address impairment ratings for his left shoulder and

cervical spine.

The ALJ’s Opinion, Award and Order explained he adopted Dr. Tien’s

impairment rating for the left upper extremity. The left upper extremity

generally includes the shoulder, arm, forearm, wrist, and hand. 2 The ALJ

found it significant that Dr. Tien released Joiner without restriction on the left

upper extremity. Upon review of Dr. Tien’s report, this assessed impairment

rating was not for the left shoulder, but rather the left elbow. In his Order on

reconsideration, the ALJ noted that Dr. Kuiper assigned a 1% impairment

rating for Joiner’s shoulders, but did not specify to which shoulder the rating

applied. The ALJ determined it was reasonable to infer that the impairment

rating was for the right shoulder, since Joiner suffered a full thickness rotator

cuff tear in that shoulder. Thus, the ALJ concluded that it was also reasonable

to infer that Dr. Kuiper did not assign an impairment rating for the left

shoulder. As such, it seems apparent that the ALJ likewise did not assign an

impairment rating for Joiner’s left shoulder and the only left-sided impairment

rating adopted was the 1% impairment rating for the left elbow as assessed by

Dr. Tien.

2 Dr. Tien assigned Joiner’s left upper extremity rating in April 2022. Joiner later underwent surgery for his left shoulder in November 2022. 4 As for the cervical spine, in ruling on Joiner’s petition for reconsideration

the ALJ acknowledged Joiner’s proffered evidence of his cervical symptoms

dated November 2020. However, the ALJ emphasized that Joiner’s four-month

delay in reporting these symptoms, as well as the fact that Dr. Compton

initially ordered only MRI scans of the lumbar and thoracic spine, supported

the conclusion that Joiner did not sustain a significant cervical injury.

Joiner appealed to the Board, asserting that the ALJ erred by failing to

assess impairment ratings for his left shoulder and cervical spine. The Board

affirmed the ALJ, concluding that the ALJ properly analyzed the evidence and

explained the basis for his decision. Further, the Board opined that the ALJ’s

decision was supported by substantial evidence and that the law was properly

applied. Joiner then appealed to the Court of Appeals, raising the same two

issues. The Court of Appeals affirmed the Board, and this appeal followed.

ANALYSIS

In a workers’ compensation case, the claimant has the burden of proving

every element of his claim. Gibbs v. Premier Scale Co./Ind. Scale Co., 50

S.W.3d 754, 763 (Ky. 2001). “A party who fails to meet its burden before the

ALJ must show on appeal that the unfavorable finding was clearly erroneous

because overwhelming evidence compelled a favorable finding, i.e., that no

reasonable person could have failed to be persuaded by the favorable evidence.”

Kroger v. Ligon, 338 S.W.3d 269, 273 (Ky. 2011). Because Joiner failed in

proving compensable left shoulder and cervical spine injuries, he must show

that overwhelming evidence compelled a finding in his favor, i.e., that he was

5 entitled to impairment ratings for his left shoulder and cervical spine. We

address Joiner’s arguments in turn.

I. The ALJ appropriately relied on evidence of record in determining no impairment rating was warranted for Joiner’s left shoulder.

At the outset, we note that “[i]f the fact-finder finds against the person

with the burden of proof, [her] burden on appeal is infinitely greater.” Special

Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). The ALJ found against

Joiner regarding his left shoulder, resulting in a steep burden on appeal.

Joiner clearly sustained several serious injuries from his fall, for which the ALJ

awarded temporary total disability, permanent partial disability, and medical

benefits. But the ALJ was simply—and reasonably—not persuaded that Joiner

sustained a left shoulder injury.

When reviewing the ALJ’s findings of fact, we must give their findings

considerable deference. Plumley v. Kroger, Inc., 557 S.W.3d 905, 909 (Ky.

2018). The ALJ reviewed the totality of the evidence and found that Joiner did

not sustain a compensable impairment to his left shoulder. “It is of no avail in

such a case to show that there was some evidence of substance which would

have justified a finding in his favor.” Special Fund, 708 S.W.2d at 643. The

ALJ considered Dr. Barefoot’s report, which assessed a 4% impairment rating

for the left shoulder, and nevertheless declined to adopt her assessment. “The

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). The ALJ would have been

6 authorized to rely on the findings and conclusions of Dr. Barefoot to determine

that Joiner suffered an impairment-ratable left shoulder injury, but he was not

so persuaded. Here, the ALJ chose to rely on the experts that opined Joiner

did not suffer a compensable impairment to his left shoulder. While there was

evidence of a left shoulder injury, namely Dr. Barefoot’s assessed 4%

impairment rating, the evidence was not so overwhelming as to compel a

finding in Joiner’s favor.

Here, the ALJ, Board, and Court of Appeals all reached the same

conclusion – that Joiner was not entitled to an award for left shoulder

impairment. In Western Baptist Hospital v. Kelly, this Court explained

[t]he WCB is suppose [sic] to decide whether the evidence is sufficient to support a particular finding made by the ALJ, or whether such evidence as there was before the ALJ should be viewed as uncontradicted and compelling a different result. These are judgment calls. No purpose is served by second-guessing such judgment calls, let alone third-guessing them. . . . [T]he body performing further review is there to address new problems, not to redecide the same evidentiary questions.

827 S.W.2d 685, 687 (Ky. 1992). The purpose of our review is not to supplant

the ALJ’s findings, but instead to determine whether overwhelming evidence

required a finding in Joiner’s favor. Kroger, 338 S.W.3d at 273.

An ALJ “has the authority to draw inferences from the evidence.” Miller

v. Tema Isenmann, Inc., 542 S.W.3d 265, 271 (Ky. 2018). The ALJ’s inference

that Dr. Kuiper’s 1% assessed impairment rating applied to the right shoulder

only was a reasonable inference drawn from his review of the evidence. 3 Dr.

3 We also note that several experts believed Joiner’s right upper extremity

condition was more severe than the left upper extremity condition. Dr. Tien assessed 7 Ballard concluded that Joiner was not entitled to an impairment rating for

either shoulder per the mandates of the American Medical Association’s Guides

to the Evaluation of Permanent Impairment. 4 She noted that Joiner’s

impairment for shoulder conditions could not be assessed under the Guides,

due to inconsistent motion measurements while testing. As Dr. Ballard noted

in her report, range of motion testing must provide a reliable basis for

assessment of impairment:

Consistency tests are designed to ensure reproducibility and greater accuracy. These measurements . . . are good but imperfect indicators of people’s efforts. The physician must use the entire range of clinical skill and judgment when assessing whether or not the measurements or tests results are plausible and consistent with the impairment being evaluated. If, in spite of an observation or test result, the medical evidence appears insufficient to verify that an impairment of a certain magnitude exists, the physician may modify the impairment rating accordingly and then describe and explain the reason for the modification in writing.

American Medical Association, Guides to the Evaluation of Permanent

Impairment, 5th ed. The ALJ was permitted to rely on this evidence and

explanation in reaching his conclusion that no impairment rating for the left

shoulder was warranted.

Joiner’s claims were not exclusive to which doctor’s evaluation the ALJ

chose to believe, but rather focused on the lack of explanation in those reports.

8% impairment for the right upper extremity, but only 1% for the left upper extremity. Dr. Barefoot assessed 14% impairment for the right upper extremity, and 6% impairment for the left upper extremity. 4 These Guides provide repeatable measurement framework for physicians to

utilize in assessing permanent impairment in patients who have suffered an injury resulting in long-term loss or reduction of body function. Kentucky Revised Statute (KRS) 342.0011(35) requires that any permanent impairment rating be determined by the Guides. 8 Admittedly, the ALJ made no mention of Joiner’s alleged left shoulder

impairment in his Opinion, Award and Order, and even on reconsideration gave

short shrift to explaining why the alleged left shoulder injury did not deserve

an impairment rating and therefore was not compensable. Best practices

would have been for the ALJ to explicitly state he determined there was no

work-related impairment to the left shoulder and cite to evidence of record to

support such a conclusion. However, while an ALJ must effectively set forth

adequate findings of fact from the evidence to apprise the parties of the basis

for a decision, he is not required to recount the record with line-by-line

specificity, nor 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, 444 (Ky. App. 1982); Big Sandy Cmty. Action Program v.

Chaffins, 502 S.W.2d 526, 531 (Ky. 1973). In any event, given that the

evidence of record supports the ALJ’s conclusion that Joiner did not suffer

from an impairment-ratable left shoulder condition, the ALJ did not err.

II. The ALJ appropriately relied on evidence of record in determining no impairment rating was warranted for Joiner’s cervical spine.

As with the asserted left shoulder injury, the ALJ was not convinced that

Joiner suffered impairment-ratable injury to his cervical spine. In reaching

his conclusion, the ALJ relied on the medical evidence of record, primarily the

treatment histories of Drs. Compton and Vemuri.

Dr. Compton, a pain management specialist, began treating Joiner in

August 2020. As the ALJ noted, Dr. Compton only initially ordered an MRI of

9 the thoracic and lumbar spine. Those MRIs revealed degenerative disc disease.

Eventually, an MRI of the cervical spine conducted on November 10, 2022,

revealed mild disc space narrowing with a bulge. Four days later, Dr. Compton

reviewed the cervical MRI and recommended cervical epidural injections. Dr.

Compton referred Joiner to Dr. Vemuri, who also recommended steroid

injections. Joiner presented to Dr. Vemuri with low back and right leg pain.

Joiner received two spinal injections but denied any benefit from them. A third

injection led to a 50% reduction in symptoms. Dr. Vemuri returned Joiner to

Dr. Compton’s care, and Dr. Compton released Joiner to return to the office as

needed as of May 2023. Further, a report by Advanced Practice Registered

Nurse (APRN) Katherine Harrell on January 12, 2023 noted recommending

cervical epidural injections for Joiner’s reported cervical pain. Harrell

recommended the same injections again on March 3, 2023.

The ALJ also emphasized that Drs. Compton and Vemuri only treated

Joiner for thoracic and lumbar complaints in the initial months following the

work accident. While the ALJ acknowledged that Joiner pointed to evidence of

cervical symptoms in November 2020 5, the ALJ determined that the delay in

symptoms, along with the fact that Dr. Compton only ordered testing of the

thoracic and lumbar regions of the spine supported his determination that

Joiner did not suffer a cervical injury.

5 In his brief, Joiner asserts that on November 10, 2020, he visited Dr. Compton

who noted cervical region pain. However, there is no indication of cervical pain in this treatment note, and the examination on that date was conducted by APRN Harrell. 10 As the Board noted, the only note from Dr. Compton himself in evidence

referencing cervical or neck pain is from May 15, 2023, in which Dr. Compton

noted Joiner’s complaints of neck pain (onset October 24, 2022) and cervical

radiculopathy (onset October 25, 2022). This was the first medical record from

Dr. Compton indicating neck pain. 6 This documented neck pain onset of

October 2022 is over two years after Joiner’s July 15, 2020 workplace injury.

While a note from certified physician assistant Melissa Parshall’s office noted

Joiner presented with complaints of right-sided neck and shoulder pain on

April 11, 2022, the treatment and testing on that date concentrated on the

right shoulder. A treatment note from a visit with Dr. Kuiper dated April 25,

2022 does not mention neck pain. In any event, April 2022 is still

approximately twenty-one months after the workplace injury, and the evidence

confirms a significant gap in time between the accident and the documented

cervical spine issues. The ALJ found this delay in seeking treatment to be

significant. Further, Dr. Ballard did not assess an impairment rating for the

While Dr. Barefoot assessed an 8% impairment rating for Joiner’s

cervical spine, we re-emphasize that it is not enough for Joiner to “show that

there was some evidence of substance which would have justified a finding in

his favor.” Special Fund, 708 S.W.2d at 643. The ALJ, as fact-finder, has the

sole authority to determine the quality, character, and substance of the

6 Again, it is unclear where this November 2020 report of cervical symptoms is

located in the record. See n.5. 11 evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Here, the

ALJ properly considered all evidence of record and permissibly concluded that

Joiner did not suffer an impairment-ratable and compensable injury to his

cervical spine. Therefore, there was no error.

Finally, we note that Joiner asserts that because his claim included a

neck injury, and his employer stipulated to a work injury and did not raise

causation or work-relatedness as defenses, that the employer therefore

stipulated to a work-related neck injury. However, it is well-settled that in a

workers’ compensation case, the claimant has the burden to prove every

element of his claim. Gibbs, 50 S.W.3d at 763. An award of permanent partial

disability requires that the assessed impairment rating be “caused by the

injury” as “determined by the ‘Guides to the Evaluation of Permanent

Impairment.’” KRS 342.730(1)(b). If the impairment rating were not caused by

the work injury, it would not be compensable. Therefore, Joiner was still

required to prove a compensable cervical injury and cannot merely rely on a

perceived stipulation by his employer.

CONCLUSION

For the foregoing reasons, we affirm the Court of Appeals’ opinion

upholding the ALJ’s Opinion, Award and Order.

All sitting. All concur.

12 COUNSEL FOR APPELLANT:

Christopher P. Evensen Evensen Law Office, LLC

COUNSEL FOR APPELLEE:

Lyn Douglas Powers Fulton, Devlin & Powers, LLC

ADMINISTRATIVE LAW JUDGE:

Hon. Phillipe Rich

WORKERS’ COMPENSATION BOARD:

Hon. Michael Wayne Alvey, Chairman