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“NOT TO BE PUBLISHED OPINION”
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RENDERED: AUGUST 20, 2026 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2025-SC-0422-WC
RUSSELLVILLE ELECTRIC PLANT APPELLANT/CROSS-APPELLEE BOARD
ON APPEAL FROM COURT OF APPEALS V. NO. 2025-CA-0540 WORKERS' COMPENSATION NO. WC-23-00706
CHRISTOPHER THOMAS APPELLEE/CROSS-APPELLANT AND
HONORABLE CHRIS DAVIS, APPELLEES ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY
AND 2025-SC-0433-WC
CHRISTOPHER THOMAS CROSS-APPELLANT
ON APPEAL FROM COURT OF APPEALS V. NO. 2025-CA-0540 WORKERS' COMPENSATION NO. WC-23-00706
RUSSELLVILLE ELECTRIC PLANT CROSS-APPELLEES BOARD; HONORABLE CHRIS DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY
MEMORANDUM OPINION OF THE COURT AFFIRMING
This appeal concerns the compensability of an injury arising from COVID-19. Russellville Electric Plant Board (“REPB”) appeals the Court of Appeals’ opinion reversing, in part, the Workers’ Compensation Board’s (“Board”) opinion vacating and remanding the Administrative Law Judge’s (“ALJ”) award, opinion, and order (“award”). REPB argues that the Board correctly vacated the award due to the ALJ’s failure to apply the proper legal standard when assessing the compensability of a work-related communicable disease. REPB further contends that the Board properly concluded that the ALJ misinterpreted the University Evaluator’s report on causation. Christopher H. Thomas (“Thomas”) cross-appeals from the Court of Appeals’ opinion affirming, in part, the Board’s opinion vacating and remanding the ALJ’s award with instructions that the ALJ reexamine whether Thomas’ injury is work- related. Thomas argues that the ALJ applied the appropriate legal standard and based the award on findings of fact supported by substantial evidence of record, including the University Evaluator’s report. For the reasons set forth below, we affirm the Court of Appeals' opinion.
BACKGROUND
In 2006, REPB employed Thomas as a lineman. In 2008, Thomas became line foreman. As line foreman, Thomas supervised a crew of four linemen and assigned individual jobs to each crew member. Thomas’ crew shared an office and frequently ate meals together. The crew also shared
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transportation to various worksites via REPB-owned trucks, including four bucket trucks and one pickup truck. Notably, REPB provided Thomas with his own pickup truck. Thomas had the discretion to allow members of his crew to ride with him to worksites.
On July 24, 2021, Thomas began experiencing symptoms consistent with COVID-19. On July 26, 2021, Thomas received a positive COVID-19 test result. Thomas alleges that he contracted COVID-19 at work due to close, sustained contact with other REPB employees who were “shedding” the virus. Thomas’ crew members included Mark Venable (“Venable”), John Byrns, Jesse Steenbergen, and Alan Jones (“Jones”). Thomas claims that, at a minimum, he was exposed to COVID-19 through contact with Venable and Jones during the week of July 19, 2021. Thomas believes he contracted COVID-19 when he drove Venable or Jones to worksites and worked alongside both linemen.
Thomas’ allegations focus on his exposure related to Venable, who commuted with him to jobsites from July 19, 2021, through July 22, 2021. In particular, Thomas asserts that on July 20, 2021, Venable disclosed to Dale Vowell (“Vowell”), the REPB general manager, that he had been exposed to COVID-19. Vowell advised Venable to continue working unless he tested positive for COVID-19 or showed signs of illness. Venable worked on July 21, 2021, and July 22, 2021. While REPB either encouraged or required masks when workers commuted together, neither Venable nor Thomas wore a mask during the relevant time. On the morning of July 23, 2021, Venable informed
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Vowell that he was experiencing symptoms. Vowell instructed Venable to remain at home.
The following day, on July 24, 2021, Thomas became ill and submitted to a COVID-19 test. On July 26, 2021, Thomas’ COVID-19 test returned positive. Within one week, Thomas’ infection became severe enough to develop COVID- 19-related pneumonia. As a result, Thomas was admitted to the Bowling Green Medical Center Intensive Care Unit and placed on a ventilator for approximately 78 days. On November 21, 2021, doctors transferred Thomas to a rehabilitation center. Finally, on December 1, 2021, Thomas returned to his residence. Thomas has since suffered both respiratory and neurocognitive impairment.
Thomas did not return to work after his hospitalization. He used accrued and donated sick time, followed by long-term disability benefits, until mid- 2023. Thereafter, on July 17, 2023, Thomas filed a claim for workers’ compensation benefits via Form 101 and Form 102, the former an application for benefits for a work-related communicable disease injury and the latter alleging a work-related occupational disease injury. Thomas also alleged that REPB committed a safety violation pursuant to Kentucky Revised Statute (“KRS”) 342.165. At his administrative hearing, Thomas introduced several medical expert opinions supporting his claim. For example, he introduced an Independent Medical Examination report by Dr. Jules Barefoot stating that Thomas was exposed to COVID-19 at work on July 21, 2021, resulting in a COVID-19 infection. Dr. Barefoot assessed a 58% whole-person impairment
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rating, attributing 100% of the impairment to workplace exposure to COVID- 19.
At issue before this Court is the Form 108 report completed by the appointed University Evaluator, Dr. Bob Moldoveanu (“Dr. Moldoveanu”). In his report, Dr. Moldoveanu diagnosed Thomas with chronic respiratory failure and post-COVID-19 syndrome due to work-related exposure. Dr. Moldoveanu assessed a 50% whole-person impairment rating and opined that Thomas lacked the capacity to return to the type of work he performed prior to his work-related injury.
On September 10, 2024, the ALJ issued the underlying award, which is the subject of this appeal. The ALJ rejected Thomas’ occupational disease claim and instead focused on whether COVID-19 qualifies as a compensable work- related injury under Kentucky Revised Statute (“KRS”) 342.0011(1). In analyzing Thomas’ claim, the ALJ found that (1) Thomas was required to frequently “ride in trucks” with other co-workers; (2) REPB neither required nor enforced a mask mandate; (3) Venable had reported exposure to COVID-19 and was instructed by Vowell to continue working alongside Thomas; and (4) prior to Thomas becoming symptomatic, his familial and personal contacts did not become symptomatic or test positive for COVID-19. The ALJ also gave presumptive weight to Dr. Moldoveanu’s opinion. Based on these findings, the ALJ concluded that Thomas contracted COVID-19 through work-related exposure.
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The ALJ further found that Thomas’ working conditions increased the likelihood of contracting COVID-19. The ALJ concluded that “Thomas was an essential worker required to ride in a truck with a co-worker who had been exposed to the virus and was symptomatic and mask mandates were not enforced.” The ALJ reasoned that Thomas’ situation “is different, entirely, from a person who was allowed, or required, to stay home during the time period of March 2020, through end of the lockdown period” because he was considered an essential worker.
The ALJ ultimately concluded that Thomas is permanently and totally disabled due to his COVID-19 work-related injury and awarded him total disability and medical benefits. Thomas and REPB both petitioned the ALJ for reconsideration. As pertinent to the appeal before us, REPB sought reconsideration because the ALJ failed to specifically evaluate whether Thomas was at a higher risk of contracting the virus, which is necessary to determine the compensability of a work-related communicable disease injury. REPB also challenged the ALJ’s factual findings that Thomas was required to ride with Venable to different work sites while symptomatic.
On October 4, 2024, the ALJ issued an order on reconsideration, overruling the parties’ petitions. The ALJ pointed out that he made the requisite findings, summarized as follows:
[REPB] did not require the wearing of masks, [Thomas]
was in the proximity of co-workers who had Covid, none of the people in [Thomas’] life, i.e. close personal contacts, were proven to have Covid prior to [Thomas]
and the University Evaluator said the Covid was work-
related. This is more than sufficient. The fact the
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[REPB] did not specifically require Venable and Thomas to ride in the same truck and gave leeway to Thomas as the supervisor is irrelevant, as Thomas did have to ride in a truck with someone and he did have to work with Venable or someone, and he had no possible, much less reasonable, way, to know he should have avoided Venable . . . .
REPB appealed, and Thomas cross-appealed, 1 the ALJ’s award and order on reconsideration.
On April 2, 2025, the Board issued its 53-page opinion vacating and remanding. The Board determined that the ALJ erred in failing to apply the appropriate legal standard in his evaluation of the compensability of Thomas’ injury. Upon remand, the Board first instructed the ALJ to determine whether Thomas contracted COVID-19 through workplace exposure. The Board directed the ALJ to consider whether Thomas contracted COVID-19 from “other sources of exposure that could have taken place outside of Thomas’s place of employment.” Second, the Board relied on Dealers Transport Co. v. Thomas, 593 S.W.2d 84 (Ky. App. 1979), to instruct the ALJ to evaluate whether “the nature of Thomas’ employment at REPB increased his risk of contracting COVID[-19].” The Board also rejected the ALJ’s reliance on Dr. Moldoveanu’s opinion that Thomas’ COVID-19 infection was related to his work environment. In sum, the Board remanded the claim to the ALJ for “a thorough analysis of the work-relatedness of Thomas’s COVID-19 infection under the correct
1 Thomas cross-appealed the ALJ’s conclusion that Thomas failed to prove the
existence of a safety violation. Thomas has since abandoned this ground for reversal.
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standard”—i.e., Did Thomas provide proof that he (1) contracted COVID-19 from workplace exposure and, if so, (2) was Thomas’ COVID-19 infection a result of an increased risk of contracting the illness attributable to the nature of his employment? Thomas appealed the Board’s decision.
The Court of Appeals affirmed the Board’s opinion in part and reversed in part. The Court of Appeals applied the plain language of KRS 342.0011(1) to articulate the proper legal standard for determining whether a communicable disease qualifies as a work-related injury. The Court of Appeals held that such an analysis requires a claimant to establish that the communicable disease was contracted at work and that “the risk of contracting the disease is increased by the nature of the employment.” Citing Dealers, the Court of Appeals explained that the “increased risk” element may be satisfied by demonstrating that “an employee's work expose[d] him or her to a greater risk of catching a communicable disease than the general public.” In reviewing the ALJ’s assessment, the Court of Appeals held that the ALJ applied the proper legal standard based on his findings and conclusion, irrespective of whether those factual findings were supported by the evidence of record.
The Court of Appeals identified two critical findings that were not supported by the record. The first error concerned the ALJ’s finding that Thomas was required to ride with Venable to worksites. The second error occurred when the ALJ found that Venable was symptomatic while working with Thomas. Based on these specific findings, the Court of Appeals affirmed the Board’s vacatur of the ALJ’s award and remanded Thomas’ claim,
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instructing the ALJ to conduct a new work-related assessment. Lastly, the Court of Appeals reversed the Board’s conclusion that the ALJ misinterpreted Dr. Moldoveanu’s opinion that Thomas’ COVID-19 injury was work-related.
REPB subsequently appealed the Court of Appeals' opinion as a matter of right. See Vessels v. Brown-Forman Distillers Corp., 793 S.W.2d 795, 798 (Ky. 1990); Ky. Const. § 115. In turn, Thomas cross-appealed. REPB argues that the Court of Appeals erred in holding that the ALJ utilized the appropriate legal standard. Additionally, REPB challenges the Court of Appeals’ holding that the ALJ did not err in concluding that Dr. Moldoveanu’s report found that Thomas’ COVID-19 injury was work-related. Thomas’ cross-appeal challenges the Court of Appeals’ holding that the ALJ’s award was based on unsupported factual findings. As such, Thomas seeks this Court’s reinstatement of the ALJ’s award.
STANDARD OF REVIEW
This Court’s standard of review “differs depending on whether we are reviewing questions of law or questions of fact.” Ford Motor Co. v. Jobe, 544 S.W.3d 628, 631 (Ky. 2018). We apply a de novo standard of review to questions of law. Id. at 631 (quoting Bowerman v. Black Equip. Co., 297 S.W.3d 858, 866 (Ky. App. 2009)). On the other hand, in reviewing issues of fact, this Court provides deference to the ALJ’s factual findings because the ALJ maintains “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) (citation omitted); KRS 342.285 (The ALJ's decision is “conclusive and binding as to all questions of fact” and the Board “shall not
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substitute its judgment for that of the [ALJ] as to the weight of evidence on questions of fact.”). Indeed, we will not disturb the ALJ’s factual findings where the party with the burden of proof was successful before the ALJ and substantial evidence supports the ALJ's findings. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). “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 Chem. Co., 474 S.W.2d 367 (Ky. 1971). Furthermore, simply identifying evidence which would have supported a finding contrary to the ALJ's conclusion does not establish grounds for reversal on appeal. McCloud v. Beth–Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).
The appellate process and its levels of review are somewhat complicated.
For clarity, we reiterate that the first level of review is conducted by the Board, which serves as an appellate court correcting errors. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992). On appeal from the Board, the Court of Appeals reviews for overlooked or misapplied precedent and any flagrant errors causing gross injustice. Id. at 687-88. A subsequent appeal to this Court is authorized under Section 115 of the Kentucky Constitution but is limited to constitutional, statutory, or novel issues of law, or reconsideration of applicable precedent. Id. On appeal to this Court, we focus on “address[ing] new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude.” Id. With these standards in mind, we address each issue in turn.
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ANALYSIS
REPB’s appeal seeks reversal of the Court of Appeals’ conclusion that the ALJ applied the correct legal standard in determining the compensability of Thomas’ claim. REPB further argues that the Court of Appeals erred in holding that Dr. Moldoveanu’s report supported the conclusion that Thomas’ injury was work-related. Thomas’ cross-appeal challenges the Court of Appeals’ decision to remand his claim to the ALJ for a new work-related determination because of the ALJ’s erroneous findings of fact that Thomas was compelled to commute with symptomatic co-workers.
I. The ALJ applied the correct legal standard in evaluating the compensability of Thomas’ claim.
This appeal concerns an award for a work-related communicable disease injury rather than for an occupational disease. Accordingly, KRS 342.0011(1) governs our analysis. The statute defines a compensable injury as follows:
(1) “Injury” means any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings. “Injury” does not include the effects of the natural aging process, and does not include any communicable disease unless the risk of contracting the disease is increased by the nature of the employment.”
Emphasis added. As applicable to communicable diseases, the ALJ was required to make findings that the employee contracted the virus in the course of his employment and the risk of contracting the virus was increased by the nature of the employment. A claimant may satisfy the “increased risk” element by demonstrating that “an employee's work expose[d] him or her to a greater
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risk of catching a communicable disease than the general public.” Dealers, 593 S.W.2d at 89.
REPB posits that the Court of Appeals erred in concluding that the ALJ applied the appropriate standard of law, even as it held that the ALJ’s factual findings were not supported by substantial evidence. We acknowledge that the wording of the Court of Appeals’ opinion invites REPB’s argument. For example, the Court of Appeals found that the ALJ “satisfied” the second prong assessing the compensability of a communicable disease by reciting the ALJ’s findings that Thomas “was required to ride in a truck with other employees who were experiencing COVID[-19] symptoms, like Mr. Venable, and was unable to adequately socially distance.” However, the Court of Appeals ultimately held that these specific findings of fact were clearly erroneous. Based on the opinion, it is readily apparent that the Court of Appeals believed the ALJ applied the correct standard of law, yet the ALJ’s factual findings supporting the award were erroneous. These conclusions are not mutually exclusive.
In support of our affirmance, we highlight the ALJ’s order on reconsideration, wherein he considered whether Thomas contracted COVID-19 in the course of his employment and if he had an increased risk of contracting COVID-19, more than that of the general public. Regarding work-relatedness, the ALJ found that Thomas contracted COVID-19 at work through the following findings: (1) lineman, including Venable, frequently rode together to work sites; (2) lineman, specifically Venable, contracted COVID-19 in the days
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leading up to Thomas becoming symptomatic; (3) Thomas drove Venable to worksites when he was symptomatic, thereby precluding Thomas from socially distancing, (4) none of Thomas’ immediate family members or those with whom he visited tested positive for COVID-19 in the weeks leading to his positive result, and (5) Dr. Moldoveanu opined that Thomas contracted COVID-19 at work.
Moreover, the ALJ adequately considered whether Thomas’ employment made him more susceptible to contracting COVID-19 than the general public. As the Court of Appeals noted, the ALJ found that Thomas, unlike the general public, served as an “essential worker,” meaning he could not stay home or work remotely like other non-essential workers. Another indication that the ALJ considered whether Thomas was at an increased risk of contracting COVID-19 is his conclusion that Thomas’ working conditions prevented him from socially distancing from other linemen. Thus, we find no error in the Court of Appeals’ holding.
As we are affirming the Court of Appeals’ decision to remand this matter, we address the applicability of Estate of Perkins ex rel Perkins v. N. Am. Stainless, 724 S.W.3d 738 (Ky. 2025). Shortly after the Court of Appeals rendered its opinion in the case sub judice, this Court, in Perkins, clarified the applicable standard for assessing the compensability of a communicable disease such as COVID-19.
In Perkins, a mechanical maintenance technician who contracted COVID-
19 underwent a double-lung transplant and ultimately died from infection. Id.
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at 744. Like the case before us, Perkins performed his job-related duties in conjunction with his co-workers. Id. at 741. Perkins shared transportation with another employee and ate lunch near other employees. Id. Perkins’ wife filed an occupational disease claim for workers’ compensation benefits. Id. at 745. The ALJ dismissed Perkins’ claim because the Estate failed to prove he was not “at a greater risk than the general public for contracting [COVID-19] or that his work placed him at an increased risk of exacerbation of [COVID-19].” Id. The Board upheld the ALJ’s dismissal, and the Court of Appeals affirmed the ALJ’s determination. Id. Notably, the Court of Appeals held that an occupational disease under KRS 342.0011(2)-(3) is merely a “subset” of a workplace injury and, in the case of a communicable disease, is therefore subject to the same work-related requirements as those promulgated by the General Assembly in KRS 342.0011(1). Id.
On direct appeal to this Court, we provided a thorough recitation of the law and legal precedents and articulated a “more clearly articulated test” for assessing the compensability of a communicable disease. Id. at 751. This Court explained that the compensability of a communicable disease requires the claimant to satisfy the following three prongs:
1) whether the “injury” is work-related. The burden of proof remains on the claimant to demonstrate it arose out of or in the course of employment. Next, all communicable diseases must prove 2) the “nature of the employment” requirement, demonstrating the risk of contracting the disease was increased by the required duties of the employee by the employer or the probability of contracting the disease is greater for the worker because of the nature of the job's employment
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conditions than it is as a member of the general public. And finally, 3) the extent of the injury must be beyond the normally anticipated effects of a general communicable disease. . . . This Court reinforces Dealers’ desire to prevent ‘a flood of claims based on colds, grippe[,] and endless common ills allegedly arising out of employment.
Id. at 750.
In applying the three-prong test, the Court agreed that the ALJ properly dismissed Perkins’ claim because Perkins failed to satisfy the first prong, which requires a finding that he contracted COVID-19 in the course of his employment. Id. at 751. Our conclusion was based on factual findings that Perkins was exposed to COVID-19 through non-work-related activities. Id.
Here, we find it clear that the three-pronged test delineated in Perkins is the applicable legal standard for assessing the compensability of a communicable disease brought under KRS 342.0011(1). 2 As such, while we agree with the Court of Appeals’ determination that the ALJ considered the applicable statutory legal standard pre-Perkins, we instruct the ALJ, upon remand, to also supply findings of fact and conclusions of law as to whether Thomas satisfied the third prong of Perkins, which addresses the extent of the injury.
2 This Court rejects Thomas’ arguments that the positional risk doctrine renders his
injury compensable. The positional risk doctrine suggests that an employee who suffers an injury from exposure to a danger because of employment has a compensable injury. Corken v. Corken Steel Prods, Inc., 385 S.W.2d 949 (Ky. 1965). Generally, this theory has only been extended to injuries that occur outside of the operating premises and in relation to the ”coming and going” rule or the “travelling employee” doctrine. See, e.g., W.G. Yates & Sons Constr. Co. v. Harvey, 706 S.W.3d 132 (Ky. 2024). Thomas fails to cite any precedential authority for his contention that the positional risk theory applies to an injury arising from a communicable disease for which there is no verifiable proof of transmission.
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In sum, we affirm the Court of Appeals’ holding that the ALJ’s findings, regardless of whether those findings were based on substantial evidence, established that the ALJ considered the applicable statutory legal standard. However, considering Perkins, we instruct the ALJ to make additional findings and conclusions regarding the extent of Thomas’ injury.
II. Two of the ALJ’s factual findings were unsupported by substantial evidence.
Thomas challenges the Court of Appeals’ affirmance of the Board’s determination that the ALJ made at least two material findings of fact that were not supported by the evidence. The first finding is that REPB required Thomas to ride with other employees, including Mr. Venable. The second finding is that Venable was COVID-19 positive and symptomatic when he commuted with Thomas during the week of July 19, 2021. Thomas asserts that the Court of Appeals erred on this issue due to REPB’s consistent misrepresentations ignoring the fact that the ALJ issued an order on reconsideration that specifically stated that whether REPB required Thomas and Venable to ride together is irrelevant to its compensability analysis. However, our reading of the order on reconsideration shows that the ALJ not only failed to correct this finding but widened the scope to assume Thomas was required to commute with “someone.” 3 To be precise, the ALJ stated the following:
The fact that [REPB] did not specifically require Venable and Thomas to ride in the same truck and gave leeway to Thomas as the supervisor is irrelevant as Thomas did
3 The ALJ refrained from naming specific REPB employees other than Venable and Vowell. Instead, the ALJ utilized the term “someone” when referring to Thomas’ co-workers.
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have to ride in a truck with someone and he did have to work with Venable or someone, and he had no possible, much less reasonable way to know he should have avoided Venable, which would regardless mean [REPB]
would have been fine with exposing Venable to another worker.
The ALJ also reasoned that his factual findings supported a conclusion that REPB’s working conditions made it so that Thomas, an essential worker, did not have the ability to avoid exposure to other linemen who had COVID- 19.
We restate that the function of the Board in reviewing the ALJ's decision is limited to a determination of whether the ALJ’s findings are so unreasonable under the evidence that they must be reversed as a matter of law. Ira A. Watson Dep’t Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000). Neither the Board nor the Court of Appeals may usurp the ALJ's role as factfinder by superimposing its own appraisals as to the weight and credibility of the evidence. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). Indeed, “[a]s factfinder, an ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party's total proof.” Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 753-54 (Ky. 2011) (footnotes omitted).
In review of the evidence in the case sub judice, including the ALJ’s “corrected” finding in his order on reconsideration, we can find no evidence that Thomas “did have to ride” in the same vehicle with another REPB employee. Evidence shows that REPB provided the crew of five men with
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enough vehicles for each to commute to worksites separately. Thomas, as foreman, was responsible for directing who was commuting with whom. Further, and more importantly, Thomas, who was aware of the COVID-19 pandemic, had discretion to commute to worksites alone. The ALJ’s conclusion that Thomas must share transportation with another REPB employee is not supported by substantial evidence.
Additionally, the record evidence does not reflect that Venable, or any other lineman who may have shared a vehicle with Thomas, was symptomatic. It appears that Venable first informed Vowell that he was suffering from COVID-19 symptoms on July 23, 2021. At that point, Vowell instructed Venable to stay home and not come into work. Following this disclosure, Venable did not return to work. The record does not reflect contradicting evidence that Venable was symptomatic prior to this date other than Thomas’ unspecific allegation. Furthermore, based on the evidence, Jones is the only other lineman who may have potentially exposed Thomas to COVID-19 during the relevant period. However, while Jones ultimately tested positive for COVID- 19, the evidence does not support a finding that Jones was showing signs of infection, nor did Jones report exposure to COVID-19.
Having determined that the ALJ erroneously made these two findings of fact, we acknowledge that REPB workers often rode together to worksites. Yet this fact does not mitigate the reality that Thomas had the authority to commute by himself. It is insincere to conclude that Thomas was ignorant of the risks associated with sharing space, such as his work vehicle, given the
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pervasiveness of COVID-19 in July 2021. This logic extends to the notion that Thomas was unable to safely distance himself from other employees, given that he controlled with whom, if anyone, he ate and that all worksites were outdoors.
To conclude, we find error in the ALJ’s use of erroneous findings of fact to infer that Thomas was not only unaware of the universal risks of exposure to COVID-19 through close and sustained contact with other REPB employees but also unable to maintain distance from crew members, such as Venable and Jones. The ALJ's factual findings in this regard were unsupported by substantial evidence, and the Board was not required to defer to the ALJ's evaluation of the evidence and inferences therefrom. Accordingly, the Court of Appeals’ determination that the ALJ made these specific factual findings in error is hereby affirmed. Because the ALJ’s award was based on these two critical findings, Thomas’ claim must be remanded to the ALJ for a new assessment of the compensability of Thomas’ injury.
III. The ALJ’s factual finding regarding Dr. Moldoveanu’s report was supported by substantial evidence.
Finally, we address REPB’s argument that the ALJ erroneously found Thomas’ injury work-related, in part, based on Dr. Moldoveanu’s report. In support of its position, REPB contends that Dr. Moldoveanu’s report is inconsistent and fails to reflect an accurate and complete understanding of the facts. We disagree. As the Court of Appeals highlighted, Dr. Moldoveanu submitted a Form 108-CWP report stating the following:
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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.
In his report, Dr. Moldoveanu also checked “yes” to the question of causation, which asked, “Within reasonable medical probability, is plaintiff's disease or condition causally related to his/her work environment[?]” and “Within reasonable medical probability, is any pulmonary impairment caused in part by factors in plaintiff's work environment (e.g., coal dust, chemicals)?” Therefore, the ALJ’s factual finding that Dr. Moldoveanu’s report concluded that Thomas’ injury was work-related is obviously based on substantial evidence. We will not disturb the ALJ’s finding on this factual matter.
CONCLUSION
For the foregoing reasons, we affirm the Court of Appeals' opinion, and remand Thomas’ claim with instructions that the ALJ render a new work- related determination in conformity with this opinion and Estate of Perkins ex rel Perkins v. North American Stainless, 724 S.W.3d 738 (Ky. 2025).
All sitting. All concur.
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COUNSEL FOR APPELLANT/CROSS-APPELLEE, RUSSELLVILLE ELECTRIC PLANT BOARD:
R. Christion Hutson Whitlow, Roberts, Houston & Straub, PLLC
COUNSEL FOR APPELLEE/CROSS-APPELLANT, CHRISTOPHER THOMAS:
Jeffery A. Roberts Roberts Law Office
COUNSEL FOR APPELLEE, HON. CHRIS DAVIS:
Pro Se
COUNSEL FOR APPELLEE, WORKERS’ COMPENSATION BOARD OF KENTUCKY:
Michael Wayne Alvey Chairman