IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4){C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD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 OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: AUGUST 29, 2019 NOT TO BE PUBLISHED
2018-SC-000463-WC
JAMES COMBS APPELLANT
ON APPEAL FROM COURT OF APPEALS V. CASE NO. 2017-CA-000240-WC WORKERS’ COMPENSATION BOARD NO. 13-WC-59455
CORRECTIONS CORPORATION OF APPELLEES AMERICA D/B/A LEE ADJUSTMENT CENTER; HON. WILLIAM RUDLOFF, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING AND REMANDING
James Combs sought workers’ compensation benefits for lower back and
neck injuries he attributed to a work-related incident. The Administrative Law
Judge (ALJ), having heard the evidence and legal arguments, concluded that
Combs was entitled to permanent partial disability benefits. The Workers’
Compensation Board (Board) vacated and remanded, directing the ALJ to make
additional findings as to causation and whether Combs had a pre-existing
condition. The Court of Appeals affirmed the Board’s decision and an appeal to
this Court followed. Having concluded that the ALJ failed to provide sufficient
explanation for his findings, we affirm the Court of Appeals and remand to the
ALJ for further findings consistent with this Opinion. FACTS AND PROCEDURAL HISTORY
In 2013, James Combs worked as a corrections officer and criminal
investigator for Corrections Corporation of America (CCA). His typical duties
included controlling inmates, investigating disciplinary matters, and providing
technical support. He primarily worked at a desk, but occasionally carried
printers weighing approximately 75 pounds. In November 2012, Combs
injured his lumbar spine when he lifted a deer after hunting. As a result of
this injury, Dr. Robert Owens, a neurosurgeon, performed a L4-L5
laminectomy and discectomy in April 2013.1 Dr. Owens reported that the
surgery was successful despite Combs’s report that he experienced occasional
back pain. In May 2013 Combs suffered two additional back injuries — one
from having to rescue his dogs from a flood and the other from helping his son
lift a generator. Combs returned to full, unrestricted duties at work on June
18, 2013, but still experienced some back pain and stiffness.
On June 28, 2013, Combs was injured at work when he lifted a box,
raising up and striking his lower back on a shelf, resulting in a six-centimeter-
long cut on the left side of his back. Combs visited the onsite nurse, who
1 “Laminectomy is a surgery that creates space by removing the lamina — the back part of a vertebra that covers the spinal canal. Also known as decompression surgery, laminectomy enlarges the spinal canal to relieve pressure on the spinal cord or nerves.” Laminectomy, Mayo Clinic (June 13, 2018) https://www.mayoclinic.org/tests-procedures/laminectomy/about/pac-20394533 . A discectomy is a “surgical procedure to remove the damaged portion of a herniated disk in your spine. Diskectomy, MAYO CLINIC (June 22, 2018) https://www.mayoclinic.org/tests-procedures/diskectomy/about/pac-20393837. A herniated disk can irritate or compress nearby nerves. Id. Although the source cited spells discectomy with a “k,” throughout the record it is predominantly spelled with a “c” and therefore we use that spelling in this Opinion.
2 cleaned the cut, and he returned to work. Three and a half months later,
Combs sought medical treatment from Dr. Salem Hanna and an immediate
care center. Combs complained of lower back and left leg pain but did not
report any neck pain. Dr. Hanna diagnosed him with lower back pain,
recommended over-the-counter pain medication, and referred him back to Dr.
Owens.
On October 29, 2013, Combs visited Dr. Owens complaining of lower
back pain and left leg pain. He also, for the first time, complained of left arm
pain. MRIs were performed a month later, and the cervical (neck) MRI revealed
disc protrusion at C5-C6 resulting in stenosis and left side protrusions at C3-
C4, C4-C5, and C6-C7. The lumbar (lower back) MRI revealed the surgery Dr.
Owens previously performed with no recurrent disc protrusion. At the October
29, 2013 visit to Dr. Owens, Combs reported back, arm and leg pain but
specifically denied any neck pain.
Combs initiated a workers’ compensation claim in March 2014, claiming
injury to his back, left shoulder, and left arm. CCA stipulated that Combs
sustained a work-related injury in June 2013 but argued that the injury did
not result in an impairment rating meriting an award of income benefits. CCA
also challenged whether the work incident caused injury to his cervical spine,
left shoulder and left arm.
Both parties submitted Independent Medical Exams (IMEs). On April 26,
2014, Dr. Jeffrey Uzzle conducted an IME and opined that Combs suffered a
permanent whole person impairment of 9%, attributing 6% to the
3 radiculopathy complaints in the cervical spine and 3% to the lumbar
radiculopathy. In addition, Dr. Uzzle stated that Combs suffered a 10% lumbar
impairment due to a pre-existing condition. In his medical report, Dr. Uzzle
stated that the work injury was the cause of Combs’s complaints, but, notably,
left the “explanation of causal relationship” section — where the examiner is
directed to explain how the work-related injury caused the harmful change in
the human organism — blank. Noting the complexity of the case, Dr. Uzzle
stated that he found Combs to be credible given his history, examination and
the straightforwardness of his presentation. He determined that Combs did
not retain the physical capacity to return to the type of work performed at the
time of his injury.
Dr. Michael Best examined Combs on April 29, 2014, and stated that
Combs sustained an abrasion/contusion to the lumbar spine as a result of the
June 28 work injury. However, Dr. Best concluded that the work injury did
not produce a permanent harmful change in the human organism, and that
Combs was fully capable of returning to his work duties. He also found no
causal relationship between the injury and Combs’s neck complaints, which
were first documented approximately three and a half months after the injury.
While Combs did have an active impairment, the impairment was attributable
to the deer hunting injury and surgery, not the work injury. Dr. Best opined
that Combs retained the physical capacity to return to the type of work he
performed at the time of the injury with no restrictions.
4 CCA filed supplemental correspondence from Dr. Best, which he
prepared after reviewing Dr. Uzzle’s report. Dr. Best again noted that Combs
complained of and sought treatment for his cervical spine three and a half
months after the work injury, and that no cause and effect relationship was
established between the incident and the injury. Dr. Best also disagreed with
Dr. Uzzle’s finding of radiculopathy, noting that according to American Medical
Association (AMA) guidelines, certain criteria, such as loss of reflex, strength
deficit, and atrophy, must be met and were not present in Combs’s case.
The ALJ conducted a hearing on July 25, 2014. On review of Combs’s
claim for workers’ compensation benefits, the ALJ concluded that Combs was
entitled to permanent partial disability benefits from the date of the accident
and continuing for 425 weeks. The ALJ determined that Combs was a credible
witness and relied on the IME performed by Dr. Uzzle in determining that
Combs could not return to the type of work he performed at the time of the
work injury. The ALJ relied on Dr. Uzzle’s finding that Combs suffered a 9%
whole person permanent partial impairment as a result of the work injury.
CCA petitioned for reconsideration, requesting additional findings
supporting the ALJ’s conclusion that the workplace injury caused Combs’s
neck condition. CCA further argued that the ALJ erred in finding Combs had
no pre-existing active condition or impairment of his lower back in light of his
recent lumbar surgery. Additionally, CCA requested additional findings
regarding Combs’s entitlement to an enhanced benefits award.
5 On reconsideration, the ALJ stated that CCA was simply trying to
reargue the case, but out of caution he elected to discuss the case again. The
ALJ reiterated much of what he included in his first opinion and order, and
denied CCA’s petition for reconsideration. CCA then appealed to the Board on
October 20, 2014.
On February 27, 2015, the Board issued an opinion vacating and
remanding, and directing the ALJ to provide specific evidentiary findings to
support his determination regarding causation of the cervical condition, the
determination of no pre-existing active impairment or condition, and the
application of the three-multiplier. The Board noted that the evidence in this
case may very well support an award of permanent partial disability benefits,
but that the ALJ failed to provide a sufficient analysis supporting his award.
Additionally, the Board recognized that the ALJ, as fact-finder, is granted sole
discretion in determining the character, quality and substance of evidence, but
that the ALJ must also provide findings sufficient to inform the parties of the
basis for his decision to allow for meaningful review. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418 (Ky. 1985); Big Sandy Cmty. Action Program v.
Chaffins, 502 S.W.2d 526 (Ky. App. 1973).
On June 26, 2015, the ALJ issued an amended opinion and order
awarding the same benefits as in the initial decision. The ALJ again found
Combs’s testimony and Dr. Uzzle’s medical opinion persuasive and relied on
Dr. Uzzle’s determination that Combs’s diagnoses were due to the work injury.
The ALJ also found that the cervical injury was associated with a herniated
6 disc at the C5-C6 level and noted the complexity of the case. CCA filed another
petition for reconsideration, which the ALJ again denied on August 4, 2015.
CCA appealed to the Board a second time, challenging the ALJ’s findings
regarding the work-related cervical injury, the lack of a pre-existing lower back
impairment and the application of the three-multiplier.2 The Board again
vacated the ALJ’s decision and remanded for additional findings on these
issues.
Combs appealed the Board’s decision to the Court of Appeals, arguing
that the Board erred as a matter of law and substituted its opinion for that of
the ALJ. In a 2-1 decision, the Court of Appeals affirmed the Board’s opinion
and found that the Board did not substitute its opinion for the ALJ’s, but
rather directed the ALJ to explain the evidentiary basis for his findings. In her
dissent, Judge Jones opined that no additional findings were necessary and the
Board should not reweigh the evidence. This appeal followed.
ANALYSIS
Combs argues that the Court of Appeals erred as a matter of law in
affirming the decisions of the Board. Specifically, he argues that the Board
erred in vacating the ALJ’s decision and remanding for additional findings
regarding causation and whether he suffered from a pre-existing condition at
the time of the injury. He claims that the ALJ’s findings are adequate to
support his decision and that by requiring additional factual findings, the
2 The application of the three-multiplier is not at issue in this present appeal.
7 Board is substituting its opinion for that of the ALJ. Parties to a workers’
compensation case are “entitled to a sufficient explanation by the AU of the
basis for the decision.” Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999)
In reviewing the appellate court’s affirmance of the Board’s remand to the AU
for findings regarding the cervical injury and the pre-existing back injury, we
agree that the AU did not provide a sufficient explanation for his findings on
these two issues.
In concluding that Combs’s cervical condition is work related, the AU
relied solely on Dr. Uzzle. As the Board carefully explained:
The AU relied solely upon Dr. Uzzle’s opinion to conclude Combs’ cervical condition is work-related, which is the only medical opinion in the record attributing the condition to the work incident. Combs reported to Dr. Uzzle that his cervical complaints arose a few days after the work incident. Dr. Uzzle also reviewed a November 27, 2013 cervical MRI which revealed a herniated disc at C5-6. Based on the MRI and Combs’ description of the onset of his symptoms, Dr. Uzzle concluded Combs’ neck complaints are associated with the herniated disc at C5-6 level.
In completing his evaluation form, Dr. Uzzle left blank a portion which requested him to “explain how the work-related injury caused the harmful change in the human organism.” In a narrative portion of the report, Dr. Uzzle acknowledges the complexity of Combs’ case but reasons “his history, exam and straightforwardness of his presentation lead to increased credibility of these diagnosis (sic) and his complaints.” Dr. Uzzle then concludes Combs’ cervical condition is related to a herniated disc at C5-6 which was caused by the work incident, but provided no further explanation for this conclusion.
In short, Dr. Uzzle’s opinion as to causation is based solely on the history Combs provided to him, including the assertion his cervical complaints began a few days after the work incident. Combs similarly testified. However, we also note Combs never described any trauma to his neck or shoulder in the incident report, and he acknowledged that he had experienced neck spasms since the deer lifting incident. Furthermore, it is not clear whether 8 Dr. Uzzle reviewed the medical records from early October 2013, which contain no reference to an injury or treatment for any condition other than the low back. Most importantly, Dr. Uzzle provides no explanation of how the work injury to his lumbar spine caused a herniated cervical disc. When the cause of a condition is riot readily apparent to a lay person, medical testimony supporting causation is required. Medical causation must be proven by medical opinion within “reasonable medical probability.” The mere possibility of work-related causation is insufficient.
. . . [T]he circumstances of Combs’ neck injury are unusual, given that he struck only his low back during the work accident, simultaneously worked as a letter carrier, and had experienced neck spasms since his hunting accident. Due to these circumstances, it is insufficient for .the ALJ to merely state he found Dr. Uzzle’s opinion persuasive. CCA is entitled to an opinion which weighs the testimony and proof, and offers a sufficient basis for the finding of a work-related neck injury.
Jan. 20, 2017 Bd. Op. at 10-13 (internal citations omitted). We discuss
the cervical injury and pre-existing back injury in turn.
I. The Court of Appeals did not err in affirming the Board’s remand to the ALJ for findings on causation and the cervical injury. Kentucky Revised Statute (KRS) 342.0011(1) defines a compensable
injury as “any work-related traumatic event . . . which is the proximate cause
producing a harmful change in the human organism evidenced by objective
medical findings.” As a workers’ compensation claimant, Combs has the
burden of proving all elements of his claim. Wolf Creek Collieries v. Crum, 673
S.W.2d 735, 736 (Ky. App. 1984). The ALJ is charged with fact-finding and
has the sole authority to determine the quality, character and substance of the
evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). On review
of the ALJ’s decision, the issue is whether there is substantial evidence
supporting his findings, defined as “some evidence of substance and
9 relevant consequence, having the fitness to induce conviction in the minds of
reasonable men.” Rowland, 998 S.W.2d at 481-82.
Combs argues that the ALJ’s finding of a work-related cervical injury was
supported by his own testimony, and the report of Dr. Uzzle, which provided
substantial evidence that he retains a permanent impairment as a result of the
cervical injury. But after reviewing Combs’s deposition and his hearing
testimony, we find nothing to suggest he stated he injured his neck during the
June 28 injury, other than testimony of a later onset of neck pain. Further,
despite the objective medical evidence of Combs’s injury at C5-C6, the ALJ
failed to establish the causal relationship between the cervical injury and the
work incident. As the Court of Appeals stated, “[i]t is this disconnect coupled
with the unique factual posture of this case that gave the Board pause.”
Here, the Board determined that it was insufficient for the ALJ to merely
state he found Dr. Uzzle’s opinion persuasive, noting that CCA is entitled to an
opinion which weighs the testimony and proof, and offers a sufficient basis for
the determination of a work-related injury. In affirming the Board, the Court of
Appeals noted that Combs did not testify that he struck his neck during the
accident (even though he later reported cervical radiculopathy beginning a few
days after the event). In fact, Combs affirmatively testified that he did not
strike his neck. The Court of Appeals further observed that Dr. Uzzle failed to
explain how Combs “scraping his low back on a shelf caused a herniated disc.”
(Emphasis in original). Reliable expert proof is required on issues such as
10 medical causation when it is not apparent to a layperson. Kingery v. Sumitomo
Elec. Wiring, 481 S.W.3d 492, 499 (Ky. 2015).
Here, the Board was not reweighing the evidence or substituting its
opinion for that of the ALJ, but merely highlighting the ALJ’s failure to provide
“sufficient explanation” for his finding of permanent partial disability as a
result of the June 28, 2013 incident. Therefore, a remand for further findings
and explanation is appropriate.
II. The Court of Appeals did not err in affirming the Board’s remand to the ALJ for findings on the pre-existing back injury. Combs also argues that the Board substituted its opinion for that of the
ALJ when it required the ALJ to explain adequately the evidentiary basis for his
finding that Combs did not have a pre-existing condition. A pre-existing
condition must be impairment ratable and symptomatic immediately prior to
the work-related injury. Finley v. DBM Tech., 217 S.W.3d 261 (Ky. App. 2007).
In determining the ALJ’s analysis was insufficient, the Board observed as
follows:
However, the ALJ seems to have solely relied on the release to return to work by Dr. Owen [following the April 2013 lumbar surgery] which does not equate to the lumbar condition being asymptomatic. The release standing alone is an insufficient basis to conclude Combs had no pre-existing active impairment. Combs testified that he was symptomatic and cpntinued to treat for the low back condition which had resulted in surgery just ten weeks prior to the work incident.
Further, the ALJ’s determination of no pre-existing active impairment for the low back and reliance on the impairment rating of Dr. Uzzle is contradictory. Dr. Uzzle clearly indicated 10% of the 13% impairment rating he assigned for the low back was related to a pre-existing condition, and described the work accident as “an
11 aggravation” of the prior condition. He opined only 3% was attributable to the work injury. Dr. Best assigned a range of 10% to 13% impairment attributable to the deer carrying incident. Given the contradiction between the ALJ’s findings and the . medical opinions regarding pre-existing lumbar condition, it was incumbent upon the ALJ to more thoroughly explain his reasoning.
Bd. op. at 14-15. The Board took considerable care to explain that it was not
seeking to usurp the ALJ’s role as fact-finder, but instead was seeking
clarification. The Board also noted that if, on remand, the ALJ determined
there was a pre-existing active impairment, the evidence could still support the
original finding that the incident produced a 3% increase in the low back
impairment rating.
In affirming the Board’s analysis, the Court of Appeals noted “[i]t is
contradictory to find no pre-existing condition, but then rely on a medical
opinion [Dr. Uzzle’s] that based its impairment rating on the aggravation of a
pre-existing condition.” We agree. While it is within the ALJ’s discretion to rely
on parts of a witness’s testimony and disregard other parts, the ALJ’s findings
regarding the pre-existing condition were inconsistent with his prior reliance on
Dr. Uzzle’s impairment rating. Caudill v. Maloney’s Disc. Stores, 560 S.W.2d
15, 16 (Ky. 1977). Given the evidence presented, a remand for further findings
and explanation is appropriate to provide the parties with a sufficient
explanation for the ALJ’s decision.
CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals and remand to
12 the ALJ for further findings consistent with this Opinion.
All sitting. Minton, C.J.; Buckingham, Hughes, and VanMeter, JJ.,
concur. Lambert, J., dissents by separate opinion in which Keller and Wright,
JJ., join.
LAMBERT, J., DISSENTING: Respectfully, I dissent. Our role in
reviewing a decision of the Board “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.”3 Assessment of the credibility of the witnesses and the
persuasive weight of the evidence is entirely within the ALJ’s authority.4 The
ALJ, not the Board, is empowered “to determine the quality, character, and
substance of the evidence.”5 The ALJ is also free to reject testimony, Id., and
“to believe part of the evidence and disbelieve other parts of the evidence[.]”6
For these reasons, the Board should not be permitted to “substitute its
judgment for that of the administrative law judge as to the weight of evidence
on questions of fact.”7
3 W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). 4 KRS 342.285 (l)-(2): “An award or order of the administrative law judge as provided in KRS 342.275...shall be conclusive and binding as to all questions of fact[...]The board shall not substitute its judgment for that of the administrative law judge as to the weight of evidence on questions of fact.” 5 Am. Greetings Corp. u. Bunch, 331 S.W.3d 600, 602 (Ky. 2010) (footnote omitted). 6 Caudill v. Maloney's Disc. Stores, 560 S.W.2d 15, 16 (Ky. 1977). 7 FEIInstallation, Inc. v. Williams, 214 S.W.3d 313, 316 (Ky. 2007).
13 regarding causation between Combs’ workplace accident and cervical spine
injury and whether he suffered from a pre-existing condition at the time of his
workplace accident.
With regard to what the Board and the Court of Appeals perceived as a
discrepancy between the circumstances surrounding Combs’ workplace
accident and the injury to his cervical spine, KRS 342.0011(1) defines a
compensable injury as “a work-related traumatic event...which is the proximate
cause producing a harmful change in the human organism evidenced by
objective medical findings.”8 Medical causation by a medical professional does
not need to be stated with absolute certainty, reasonable probability is
sufficient.9
Combs’ testimony concerning the circumstances of injury went as
I was boxing up some old IP phones that weren’t working, preparing to ship them. I was in an electrical closet where I had them stored. This closet is where our DVR’s for the camera system were set up, and on the shelf with the DVR’s, you’ve got a pull-out shelf with a monitor and a keyboard. And that’s what I caught the corner of. As I was picking the box up, I caught the corner of the shelf with the center of my back. I twisted and it just scraped all across, from the center to the left side of my back. It was probably about four, five, maybe 6 inches. And I went to my knees after that. I stayed that way for probably about a half-hour or so. It was just a lot of pain. I went straight after that to the HR office. And from there, I
8 See also Sweeney v. King’s Daughters Med. Ctr., 260 S.W.3d 829, 832 (Ky. 2008). 9 Lexington Cartage Co. v. Williams, 407 S.W.2d 395, 396 (Ky. App. 1966).
14 went to our medical department where I was examined by one of our nurses.
Combs further testified that since his work accident he has suffered radiating
left leg pain, low back pain, neck pain, shoulder pain, numbness in his ring
and pinky fingers, and muscle spasms. He further testified that he developed
pain in his upper shoulders radiating down his left arm, and numbness from
his neck to the fingers of his left hand in the days after the accident.
Dr. Jeffrey Uzzle conducted an independent medical examination (IME)
on Combs in April of 2014. Pertinent to our review, Dr. Uzzle concluded that
the workplace accident caused Combs’ C5-C6 disc herniation. “The C5-C6
spinal motion segment (located in the lower cervical spine just above the C7
vertebra) provides flexibility and support to much of the neck and the head
above. Due to its high load-bearing function, the C5-C6 motion segment is
frequently affected by poor posture, degeneration, disc herniation, radicular
pain, and trauma.”10 He also diagnosed Combs with a lumbar sprain or strain
with an aggravation of left lower extremity radiculopathy relative to the pre
existing lumbar injury and surgery.
Combs’ description of the workplace accident, in conjunction with Dr.
Uzzle’s conclusions following the IME, adequately supported the ALJ’s finding
of causation between the workplace accident and the injury to Combs’ neck.
Dr. Uzzle was entitled to base his opinion as to causation on the history
10 https: / /www.spine-health.com/conditions/spine-anatomy/all-about-c5-c6- spinal-motion-segment (June 2019).
15 provided by the patient, and to give an opinion about causation based upon
that history. Here, Combs testified his neck and shoulder symptoms developed
shortly after the work incident, which both Dr. Uzzle and the ALJ found
credible. The ALJ, as the sole determiner of the “quality, character and
substance of the evidence,”11 was entitled to rely upon Dr. Uzzle’s medical
opinion concerning causation in finding that Combs’ workplace accident
resulted in his cervical spine injury.
Further, the Board and the Court of Appeals erred by requiring the ALJ
to further explain the evidentiary basis for its finding that Combs did not have
a pre-existing condition.
“[A] pre-existing condition that is both asymptomatic and produces no
impairment prior to the work-related injury constitutes a pre-existing dormant
condition.”12 The work-related arousal of a pre-existing dormant condition into
disabling reality is compensable. Id. However, a pre-existing active condition
is not compensable. Id. To be active, an underlying pre-existing condition
must be symptomatic and impairment ratable under the AMA Guidelines
immediately prior to the work-related injury. Id. Further, when a work-related
event aggravates or exacerbates a pre-existing condition, a worker "sustains a
new and separate ‘injury’ within the meaning of KRS 342.0011 (1)[.]"13
11 Am. Greetings Corp., 331 S.W.3d at 602. 12 Finley v. DBM Techs., 217 S.W.3d 261, 265 (Ky. App. 2007). 13 Ford Motor Co. v. Curtsinger, 511 S.W.3d 922, 927 (Ky. App. 2017).
16 Dr. Best indicated in his medical report that Combs "did not have an
active impairment prior to this injury." He further noted in his report that
Combs’ treating neurosurgeon allowed Combs to return to full and unrestricted
work duties prior to the work incident. This was sufficient evidence to sustain
the ALJ’s finding that Combs did not have a preexisting injury. And while
Combs testified that his back was often stiff and he was taking prescription
medication to regulate his pain just prior to the workplace injury, it is within
the ALJ’s discretion to rely on parts of a witnesses testimony and disregard
other parts.14 As such, I am persuaded that the ALJ acted within his
discretion in determining Combs did not have a preexisting injury at the time
he incurred his workplace injury.
Based on the foregoing, I would reverse the Court of Appeals and
reinstate the ALJ’s order.
Keller and Wright, JJ., join.
14 Maloney’s, 560 S.W.2d at 16.