Cleveland Construction v. Joshua Shackleford ( 2021 )

RENDERED: APRIL 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0662-WC
CLEVELAND CONSTRUCTION APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. 17-WC-61845
JOSHUA SHACKLEFORD;
HONORABLE MONICA RICE-
SMITH, ADMINISTRATIVE LAW
JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
JONES, JUDGE: This petition for review comes to us following a decision by the
Workers’ Compensation Board (“Board”) affirming the Administrative Law
Judge’s (“ALJ”) decision granting indemnity and medical benefits to the Appellee,
Joshua Shackleford, for a work-related injury. Following this decision, Cleveland
Construction (“Cleveland”) petitioned our Court for review arguing that the ALJ
erred in relying upon Dr. Jared Madden’s medical opinion, which Cleveland
alleges is not in compliance with the 5th Edition of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (“AMA
Guides”). While any discrepancy could affect Dr. Madden’s overall credibility, we
cannot agree with Cleveland that the Board erred in leaving the ultimate decision
in the ALJ’s hands. For the reasons set forth below, we affirm.
I. STATEMENT OF THE FACTS
In 2017, Shackleford was employed by Cleveland as a drywall
finisher. Shackleford’s job was to “mud” the walls for approximately 80 to 100
boards of drywall per day. Although he did not hang the actual boards,
Shackleford taped them, mudded the walls, and sanded the drywall. To mud the
walls, Shackleford was required to lift and carry five to six five-gallon buckets of
mud per shift across a maximum of 100 feet. Each bucket weighed approximately
fifty to sixty pounds.
On October 1, 2017, Shackleford sustained a hernia during the course
and scope of his employment. That day, Shackleford had been asked to move
more buckets of mud than usual. He had carried approximately ten to eleven
buckets when he felt a tear in his right groin area below the beltline. Shackleford
had sustained a hernia in his left groin area in 2002, so he recognized the feeling.
He immediately informed his supervisor, who prepared a report. Shackleford went
-2-
to Urgent Care in Berea and was then sent to Berea Hospital for an ultrasound.
The ultrasound was negative, and Shackleford was not diagnosed with a hernia at
that time. Shackleford went home after his appointment, unable to continue
working because of the pain. Despite his continued pain, Shackleford attempted to
go to work the next day. However, Shackleford’s supervisor informed him that he
was no longer needed and sent him home. Shackleford was then unemployed for
two or three months.
In 2018, Shackleford took a job at C & N Construction (“C & N”),
where he worked on and off for about six to eight months as a drywall finisher. He
performed similar work to that which he performed for Cleveland but was not
required to carry buckets of mud. Sometimes he could work a full week and
sometimes he could not. Although Shackleford wore a strap to keep the hernia
pulled in while working at C & N, he eventually left his employment with C & N
because he felt he could not physically continue the work required of him. In
August 2018, Shackleford sought work at the Cookie Factory but found he was
unable to stand on the factory’s concrete flooring for his twelve-hour shifts
because of the burning and pressure caused by his hernia. As a result,
Shackleford’s tenure at the Cookie Factory lasted only two weeks.
After his initial injury on October 1, 2017, Shackleford’s condition
continued to worsen, causing him to seek additional treatment from Dr. Alan
-3-
Graham in July 2018. Dr. Graham had previously surgically repaired a left-sided
hernia Shackleford sustained in 2002, from which Shackleford had fully recovered.
On July 18, 2018, Dr. Graham saw Shackleford for right groin pain and swelling as
a result of Shackleford’s work injury, at which time Dr. Graham determined that
Shackleford had sustained a right inguinal hernia. Dr. Graham surgically repaired
Shackleford’s right-sided hernia on February 7, 2019, and released him to return to
work without restrictions in March 2019.1 Shackleford has not actively treated his
right-sided hernia since his release, and he does not take any medication.
Since approximately July 2019, Shackleford has worked as a self-
employed contractor doing drywall finishing. He performs taping, mudding, and
sanding for about 30 to 40 hours a week. He is not able to hang drywall anymore
and does not carry buckets of mud, but he has other people do those jobs.
Shackleford stated that he has done “pretty well” since surgery. He is
able to sit without difficulty but continues to experience burning pain if he stands
for six hours or more or if he attempts to lift fifty pounds or more. Although
Shackleford testified that he is continuing to improve, he believes it would be too
tough to go back to the work he performed at Cleveland. Shackleford stated that
he would have difficulty carrying the buckets of mud and would not be able to
carry them very far. Shackleford stated that his condition has improved since his
1
Dr. Graham’s surgical report was not filed in the record by either party.
-4-
surgery and he estimates that he is at “eighty percent.” At the hearing, Shackleford
stated that he has no protrusions in his abdomen or groin area. An October 11,
2017, ultrasound report shows that there is no evidence of testicular mass or
torsion.
Dr. Madden initially evaluated Shackleford prior to Shackleford’s
February 2019 surgery, noting during his examination, “right inguinal hernia,
visible defect, very large and easily palpable. Reducible with manual pressure but
defect immediately returns once pressure is released.” At that point, he assessed a
19% impairment rating pursuant to the AMA Guides, but found that Shackleford
had not yet attained maximum medical improvement (“MMI”).
Dr. Madden re-evaluated Shackleford on April 19, 2019, following
Shackleford’s February 2019 surgery, noting the surgical repair of the right
inguinal hernia with mesh implantation. Shackleford reported some alleviation of
pain in the right groin area after a six-week recovery period but reported continued
pain lifting, bending, and twisting. Dr. Madden noted: “right inguinal hernia,
previously visible and palpable defect, now repaired and incision well healed.” He
then diagnosed a right inguinal hernia, status-post surgical repair, observing that
Shackleford had had chronic pain consistent with and directly related to the
October 1, 2017, work injury. Dr. Madden believed that Shackleford had reached
-5-
MMI by the time of his re-evaluation, and he does not retain the physical capacity
to return to his former type of work.
Accordingly, Dr. Madden assessed a 12% impairment rating pursuant
to the AMA Guides, noting, “Class 2 Impairment due to Herniation 12% WPI (10-
19% possible), Table 6-9, Page 136.” Record (R.) at 130. He opined that,
regardless of surgical repair, the right inguinal hernia would restrict Shackleford’s
ability to work as a heavy laborer. Dr. Madden stated that Shackleford is at an
increased risk for additional or worsening herniation in both the left and right
inguinal regions and advised that even slight exertion or positional changes could
result in severe pain exacerbations or create additional pathology in the right
inguinal region. Dr. Madden restricted Shackleford from lifting over twenty
pounds, repetitive bending or twisting, and anything more than minimal pulling,
stooping, and crouching. He further explained that episodic problems with routine
activities of daily living during pain exacerbations are commonly associated with
surgically repaired hernias.
Cleveland filed Dr. Greg Snider’s June 24, 2019, report. Dr. Snider
noted the work injury and subsequent treatment, including the February 7, 2019,
open repair of an indirect right inguinal hernia by Dr. Graham. He observed that
Shackleford reported no further swelling and pain at rest but complained of pain
with prolonged periods of activity. He also noted that Shackleford is able to work
-6-
five to six hours a day, five days a week despite a gradually improving sharp and
burning pain. He acknowledged that Shackleford may have residual symptoms for
at least a short period of time. Dr. Snider’s examination revealed: “a well-healed
right inguinal scar, soft and nontender. There is no testicular tenderness. No
hernia was noted at rest, with position change, or with modified Valsalva
maneuver.” Dr. Snider assessed a 0% impairment rating for the surgically repaired
hernia pursuant to the AMA Guides, opining that Shackleford had an excellent
surgical outcome, is able to return to work without restrictions, and requires no
additional treatment.
Dr. Snider prepared an October 10, 2019, supplemental report after
reviewing Dr. Madden’s April 19, 2019, report. He reiterated opinions contained
within his June 24, 2019, report, stating:
Dr. Madden’s evaluation took place over two months
prior to [the June 24, 2019] evaluation; thus, there is
certainly room for symptomatic improvement, as one
would expect, during that interval. Dr. Madden did not
note any deficiencies in the repair of Mr. Shackleford’s
hernia site. Nonetheless, he assessed 12% WPI based on
Class 2 hernia by Table 6-9 of the AMA Guides, 5th
Edition.
In my opinion, Dr. Madden’s impairment assessment
method is inappropriate and inaccurate. Table 6-9
requires a palpable defect for impairment assessment of
herniation to be applicable. Mr. Shackleford no longer
has a hernia. In fact, the AMA Guides provides [sic] an
example of a persistent hernia described as “only mildly
-7-
annoying” and without limitation in activities for which
0% WPI is assessed.
R. at 137 (emphasis in original).
Shackleford filed a claim alleging that he sustained a hernia injury on
October 1, 2017, while in Cleveland’s employment. Shackleford testified via
deposition on November 29, 2018, and at a formal hearing on November 1, 2019.
The parties held a Benefit Review Conference on November 1, 2019.
The ALJ reviewed and considered evidence from Dr. Graham, Dr.
Madden, Dr. Snider, and St. Joseph Berea Radiology. The parties agreed to a
number of stipulations, including that Shackleford sustained a work-related injury
on October 1, 2017, that temporary total disability was paid to Shackleford from
February 7, 2019, to March 24, 2019, and that Cleveland paid medical expenses on
Shackleford’s behalf in the amount of $1720.12.
On December 16, 2019, the ALJ rendered her decision, finding that
Shackleford sustained a 12% impairment due to the October 1, 2017, hernia injury
and awarding Shackleford recovery of related medical expenses, temporary total
disability benefits from February 7, 2019, through March 24, 2019, and permanent
partial disability benefits commencing on October 11, 2017, and continuing for
425 weeks. In doing so, the ALJ relied upon Dr. Madden’s opinion, finding it
“most persuasive and supported by Shackleford’s testimony.” R. at 205. The ALJ
denied Cleveland’s motion to reconsider on January 13, 2020.
-8-
Cleveland appealed to the Board, arguing that the ALJ erred in relying
upon Dr. Madden’s 12% impairment rating because the rating was inconsistent
with Table 6-9 of the AMA Guides. Cleveland asserted that Dr. Madden did not
discuss a palpable defect in his April 19, 2019, report and that Shackleford
admitted that there were no protrusions at the time of the final hearing. According
to Cleveland, the lack of a palpable defect prevents a finding of a Class 2 hernia
under Table 6-9. On April 24, 2020, the Board issued its opinion affirming the
ALJ’s judgment as based upon substantial evidence. The Board explained:
In Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d
206, 210 (Ky. 2003), the Kentucky Supreme Court
explained that the extent of a worker’s impairment at
particular points in time and the proper interpretation of
the AMA Guides are medical questions solely within the
province of medical experts. In George Humfleet Mobile
Homes v. Christman, 125 S.W.3d 288 (Ky. 2004), the
Court additionally held, while an ALJ is not authorized to
independently interpret the AMA Guides, he or she may
as fact-finder consult the [AMA] Guides in the process of
assigning weight and credibility to evidence. Although
assigning a permanent impairment rating is a matter for
medical experts, determining the weight and character of
testimony and drawing reasonable inferences therefrom
are matters for the ALJ. Knott County Nursing Home v.
Wallen, 74 S.W.3d 706 (Ky. 2002). Moreover, authority
to select an impairment rating assessed by an expert
medical witness rests with the ALJ. See KRS[2] 342.0011
(35) and (36); Staples, Inc. v. Konvelski, 56 S.W.3d 412(Ky. 2001).
2
Kentucky Revised Statutes.
-9-
The AMA Guides clearly states its purpose is to provide
objective standards for the “estimating” of permanent
impairment ratings by physicians. The Kentucky Court
of Appeals has instructed that as long as a physician’s
opinion concerning impairment is “grounded in the AMA
Guides,” the rating may be relied on by the fact-finder for
purposes of determining PPD. Jones v. Brasch-Barry
General Contractors, supra. This Board has routinely
held that except under compelling circumstances where it
is obvious even to a layperson that a gross misapplication
of the AMA Guides has occurred, the issue of whether a
physician’s impairment rating is properly assessed and
credible, is a matter of discretion for the ALJ. REO
Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).
The parties stipulated Shackleford sustained a work-
related injury on October 1, 2017. However, there are
differing assessments of impairment, both purportedly in
accordance with page 136, Table 6-9 of the AMA
Guides. Dr. Madden determined Shackleford qualified
for a Class 2 herniation for which he assessed a 12%
impairment rating while Dr. Snider determined he did not
qualify for an impairment rating. Dr. Madden clearly
stated he assessed the impairment rating pursuant to the
AMA Guides, citing to the specific page number and
table. The ALJ provided a sufficient explanation of her
reasonings for accepting Dr. Madden’s impairment
rating. While we acknowledge it is unclear in Dr.
Madden’s report whether there was a palpable defect in
the supporting structures of the abdominal wall at the
time of his April 19, 2019 evaluation, we note he was not
cross-examined. Dr. Snider’s critique of Dr. Madden’s
assessment goes to the weight of the evidence and does
not compel a contrary result.
Because we determine Dr. Madden’s permanent
impairment rating was grounded in the AMA Guides, we
cannot say the ALJ’s reliance on his opinion was beyond
the scope of her discretion as fact-finder or unreasonable
as a matter of law. Speedway/Super America v. Elias,
-10-
285 S.W.3d 722, 730 (Ky. 2009); Eaton Axle Corp. v.
Nally, 688 S.W.2d 334 (Ky. 1985). Therefore, it was
permissible to rely upon that rating as a basis for the
award of PPD benefits. We will not disturb the ALJ’s
determination based upon Dr. Madden’s assessment of
impairment, which we determine constitutes substantial
evidence.
R. at 264-66.
This appeal followed.
II. STANDARD OF REVIEW
Pursuant to KRS 342.285, the ALJ is the sole finder of fact in
workers’ compensation claims. Accordingly, the ALJ has the sole discretion to
determine the quality, character, weight, credibility, and substance of the evidence
and to draw reasonable inferences from that evidence. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); McCloud v. Beth-Elkhorn Corp., 514
S.W.2d 46, 47 (Ky. 1974). “Moreover, an ALJ has sole discretion to decide whom
and what to believe, and may reject any testimony and believe or disbelieve
various parts of the evidence, regardless of whether it comes from the same
witness or the same adversary party’s total proof.” Bowerman v. Black Equip. Co.,
297 S.W.3d 858, 866 (Ky. App. 2009) (citing Caudill v. Maloney’s Discount
Stores, 560 S.W.2d 15, 16 (Ky. 1977)).
On review, neither the Board nor the appellate court can substitute its
judgment for that of the ALJ as to the weight of evidence on questions of
-11-
fact. Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky.
App. 1982). “In short, appellate courts may not second-guess or disturb
discretionary decisions of an ALJ unless those decisions amount to an abuse of
discretion.” Bowerman, 297 S.W.3d at 866. Where the fact-finder’s decision is to
deny relief to the party with the burden of proof or persuasion, the issue on appeal
is whether the evidence in that party’s favor is so compelling that no reasonable
person could have failed to be persuaded by it. Carnes v. Tremco Mfg. Co., 30
S.W.3d 172, 176 (Ky. 2000).
It falls to the Board to decide whether the ALJ’s finding “is so
unreasonable under the evidence that it must be viewed as erroneous as a matter of
law.” Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000);
KRS 342.285. “When reviewing the Board’s decision, we reverse only where it
has overlooked or misconstrued controlling law or so flagrantly erred in evaluating
the evidence that it has caused gross injustice.” GSI Commerce v. Thompson, 409
S.W.3d 361, 364 (Ky. App. 2012) (citing Western Baptist Hosp. v. Kelly, 827
S.W.2d 685, 687-88 (Ky. 1992)).
III. ANALYSIS
Cleveland’s sole argument on appeal is that the ALJ erred in relying
upon Dr. Madden’s 12% impairment rating. Cleveland argues that Dr. Madden’s
opinion was inconsistent with Table 6-9 of the AMA Guides because an
-12-
impairment rating of 12% based upon Table 6-9 requires two elements: (1) a
palpable defect in the supporting structures of the abdominal wall; and (2) frequent
or persistent protrusion at the site of the defect with increased abdominal pressure,
manually reducible or frequent discomfort, precluding heavy lifting but not
hampering some activities of daily living. Cleveland asserts that Dr. Madden did
not discuss a palpable defect in his April 19, 2019 report, preventing a finding of a
Class 2 hernia under Table 6-9. Cleveland relies upon Jones v. Brasch-Barry
General Contractors, 189 S.W.3d 149 (Ky. App. 2006), to support its argument.
In Brasch-Barry, the ALJ determined that Jones sustained a 26%
impairment from a work-related back injury. Id. at 153. In that case, two doctors
determined that Jones suffered a “Category III” impairment of 10% under the
AMA Guides, and only Dr. Reasor determined that Jones had sustained a
“Category IV” impairment of 26%. Id. The ALJ relied solely upon Dr. Reasor’s
opinion in his determination despite Dr. Reasor’s repeated concessions upon cross-
examination that Jones’s impairment “properly fell within the ‘strict definition’ of
Category III,” not Category IV. Id. at 152, 153. Dr. Reasor also opined that “the
category definitions in the AMA Guides are meant to be used solely as the name of
the text implies, as a guide [and] that the category definitions were perhaps flawed
or incomplete in this instance.” Id. at 152. Upon appeal, our Court held that “a
physician’s opinion must be grounded in the AMA Guides, meaning that a
-13-
physician’s personal antagonism toward the AMA Guides . . . is legally irrelevant.
And any assessment that disregards the express terms of the AMA Guides cannot
constitute substantial evidence to support an award of workers’ compensation
benefits.” Id. at 154.
Twelve years later, in Plumley v. Kroger, Inc., our Supreme Court
revisited the Brasch-Barry holding when reviewing a case in which a physician’s
whole person assessment purportedly did not comply with the AMA Guides. 557
S.W.3d 905 (Ky. 2018). In that case, the claimant suffered a recurrent hernia as a
result of work injury, and the ALJ assessed a total of 22% WPI, adopting the
conclusions of Dr. Snider, who relied upon only one of the two diagnosis-related
methods to be used in accordance with Section 15.2 of the AMA Guides, which
states, “[i]n the small number of instances in which the ROM and DRE methods
can both be used . . . .” Id. at 913. Our Supreme Court determined that the
physician was entitled to determine for himself which method or methods should
be used to evaluate his patient:
Plumley’s argument highlights a greater issue in
Kentucky case law—whether the failure to adhere strictly
to the [AMA] Guides constitutes reversible error. The
Court of Appeals’ statement in Brasch-Barry suggests
that any failure on the part of a physician to adhere
strictly to the text of the [AMA] Guides constitutes
reversible error, which constitutes the bulk of Plumley’s
argument. Against this argument, Kroger responds that a
physicians’ conclusions must simply be supported by and
in conformity with the [AMA] Guides, only requiring
-14-
professional medical judgment to ground itself in, but not
so strictly adhere itself to, the [AMA] Guides.
...
This Court, and presumably the Court of Appeals, views
the statement by the Court of Appeals in Brasch-Barry in
two completely contrasting ways—strict adherence
versus general conformity to the [AMA]
Guides. Notably, the factual circumstances of Brasch-
Barry shed light on why the Court of Appeals stated its
rule the way that it did. The physician in Brasch-
Barry completely ignored the [AMA] Guides, expressing
“personal antagonism” toward them. Furthermore,
Plumley overlooks other statements by the Court of
Appeals in Brasch-Barry in the paragraph before the
statement in controversy, “Under our law, the AMA
Guides are an integral tool for assessing a claimant’s
disability rating and monetary award. So to be useful for
the fact-finder, a physician’s opinion must
be grounded in the AMA Guides . . . .”
To be grounded in the [AMA] Guides is not to require
a strict adherence to the [AMA] Guides, but rather
a general conformity with them. We also note that the
Court of Appeals in Brasch-Barry seemingly also did not
require strict adherence to the [AMA] Guides: “An ALJ
cannot choose to give credence to an opinion of a
physician assigning an impairment rating that is
not based upon the AMA Guides.” An opinion that
is based upon the [AMA] Guides is different from one
that strictly adheres to the [AMA] Guides.
Id. at 912-13.
-15-
We have also examined the unreported decision of this Court
Amazon.com v. Henry, which is factually similar to the case at bar.3 In that case,
Amazon argued in part before our Court that the ALJ could not rely upon the
medical opinion and impairment rating of Dr. James Bilbo because Dr. Bilbo did
not provide measurements indicating how he determined the impairment rating and
allegedly relied upon the wrong impairment rating table found in the AMA Guides.
Amazon.com v. Henry, No. 2020-CA-0621-WC, 2020 WL 5079337, at *4 (Ky.
App. Aug. 28, 2020). Our Court affirmed the ALJ’s reliance on Dr. Bilbo’s
opinion, emphasizing Plumley’s holding that only a “general conformity” with the
AMA Guides is required. Id. (quoting Plumley, 557 S.W.3d at 914). Our Court
explained:
Dr. Bilbo also utilized table 16-35 of the AMA Guides to
determine Appellee’s impairment rating. Table 16-35
concerns measuring strength deficits of shoulders and
elbows. Appellant points out that the AMA Guides state:
“Decreased strength cannot be rated in the presence of
decreased motion, painful conditions, deformities, or
absence of parts ([e.g.,] thumb amputation) that prevent
effective application of maximal force in the region being
evaluated.” [AMA Guides], Section 16.8a, p. 508 (5th
ed. 2000) (emphasis in original). Appellant argues that
Dr. Bilbo could not utilize an impairment rating based on
a strength deficit because Appellee’s shoulders had
decreased motion and painful conditions. We believe Dr.
Bilbo could still determine an impairment rating even if
Appellee’s shoulders had decreased motion and painful
3
We cite to this unpublished opinion as illustrative of the issue before us and not as binding
authority. CR 76.28(4)(c).
-16-
conditions. Dr. Bilbo’s opinion only had to be grounded
in the [AMA] Guides, not exactly adhere to it. Dr. Bilbo,
in his medical opinion, could have concluded that a
strength deficit rating for Appellee’s shoulders was
appropriate in her case. Appellee did not seek to depose
or cross-examine Dr. Bilbo as to his methods. In
addition, Dr. Shockey did not opine as to whether Dr.
Bilbo’s methods were incorrect.
Id. at *4.
Similarly, it was Dr. Madden’s medical prerogative to draw his own
medical conclusions when assessing his rating of Shackleford’s hernia site so long
as they were grounded in the AMA Guides. Dr. Madden clearly stated he assessed
the impairment rating pursuant to the AMA Guides, citing to the specific page
number and table. Dr. Madden stated that he assessed Shackleford’s impairment
rating pursuant to the AMA Guides and offered his reasoning for his assessment.
Dr. Madden’s opinion only had to be “grounded” in the AMA Guides, not exactly
adhere to it, and as such, Dr. Madden could have concluded that assessing a Class
II hernia was appropriate given Shackleford’s medical history.
While we acknowledge it is unclear in Dr. Madden’s report whether
there was a palpable defect in the supporting structures of the abdominal wall at
the time of his April 19, 2019, evaluation, we note he was not cross-examined.
Because Cleveland did not cross-examine Dr. Madden on his assessment despite
having the opportunity to do so, Dr. Madden’s exact reasoning for his assessment
was unclear. Any bias Dr. Madden may or may not have that may have been
-17-
divulged on cross-examination is therefore nonexistent. Any critique Cleveland
now offers, even that of Dr. Snider, goes only to the weight of the evidence and
does not compel a contrary result.
The ALJ provided a sufficient explanation of her reasonings for
accepting Dr. Madden’s impairment rating. “[T]he proper interpretation of the
[AMA] Guides and the proper assessment of an impairment rating are medical
questions,” to which our review does not extend. Kentucky River Enterprises, Inc.
v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003). Dr. Madden and Dr. Snider offered
differing assessments Shackleford’s impairment, both purporting to comply with
page 136, Table 6-9 of the AMA Guides. The ALJ was free to weigh the evidence
as she saw fit and was free to reject Dr. Snider’s conflicting opinion, as well as his
critique of Dr. Madden’s assessment, in favor of Dr. Madden’s opinion. While
Cleveland may point to evidence that would have supported a different outcome,
the ALJ’s failure to rely upon it is not sufficient basis for reversal. McCloud, 514
S.W.2d at 47. The ALJ has “sole discretion to determine the quality, character,
and substance of evidence.” Gaines Gentry Thoroughbreds/Fayette Farms v.
Mandujano, 366 S.W.3d 456, 461 (Ky. 2012). Accordingly, we will not reverse
the ALJ’s decision.
-18-
IV. CONCLUSION
In light of the foregoing, we AFFIRM the decision of the Workers’
Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE JOSHUA
SHACKLEFORD:
Donald J. Neihaus
Lexington, Kentucky McKinnley Morgan
London, Kentucky
-19-