Muhlenberg County Coal Co, LLC v. Gregory Rodgers

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RENDERED: JUNE 25, 2026

NOT TO BE PUBLISHED

Supreme Court of Kentucky 2025-SC-0336-WC

MUHLENBERG COUNTY COAL CO.,

LLC

APPELLANT

V.

ON APPEAL FROM COURT OF APPEALS

NO. 2025-CA-0564

WORKERS' COMPENSATION BOARD NO. WC-18-70086 GREGORY RODGERS; HONORABLE

KENNETH C. SMITH, III,

ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

OF KENTUCKY

APPELLEES

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Appellant Muhlenberg County Coal Co., LLC ("Muhlenberg"), appeals an Opinion of the Court of Appeals' decision affirming the Workers' Compensation Board's ("Board") Opinion, which affirmed the Administrative Law Judge's ("ALJ") award of a 17% permanent disability rating upon reopening. For the reasons set out below, we affirm the decision of the Court of Appeals.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 14, 2018, Rodgers, a 54-year-old male resident of Nortonville, Kentucky, filed a claim for workers' compensation benefits arising out of an injury to his left hip and cumulative trauma to his lumbar, thoracic, and

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cervical spine during his employment as an equipment operator with Muhlenberg. Rodgers was employed by Muhlenberg from February 17, 2018, until July 14, 2018. On that date, Rodgers filed a workers' compensation claim alleging acute injury to his hip, which was later amended to include cumulative trauma to his low back. Muhlenberg contested the claim, and it was litigated before an ALJ. The issues contested were extensive, and on June 28, 2019, Rodgers moved to bifurcate the claim to have work-relatedness, causation, reasonableness, and necessity of a surgery scheduled for July 5, 2019, and TTD benefits addressed. The ALJ conducted a live Status Conference shortly after the surgery and a formal hearing on August 15, 2019. The medical evidence was in conflict. A January 8, 2021, Opinion, Award, and Order was issued.

This Award found Rodgers sustained a 10% whole person impairment for the left hip (adjusted from 30% with a 20% carve-out for a pre-existing active condition) and an 8% whole person impairment for cumulative trauma to the lumbar spine. The ALJ had relied upon the opinion of Dr. Gilbert for this impairment determination. The ALJ determined permanent partial disability (PPD) benefits were appropriate based on a combined 17% whole person impairment rating commencing on July 14, 2018, enhanced by the three- multiplier. After applying the factors set forth in Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 51-52 (Ky. 2000) and the analysis required by City of Ashland v. Stumbo, 461 S.W.3d 392, 395-96 (Ky. 2015), the ALJ concluded that Rodgers retained the capacity to perform light-duty or

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sedentary work and, therefore, was not permanently totally disabled at that time.

On December 18, 2023, Rodgers filed a Motion to Reopen his claim pursuant to KRS 342.125, asserting his condition had worsened since the original award and that he had become permanently and totally disabled. Rodgers maintained that his left hip and lumbar spine conditions had deteriorated to the point that he was no longer capable of performing any type of work. Rodgers filed an affidavit from Chad Morgan, D.C., alleging deterioration since his original award and that he had become permanently and totally occupationally disabled from any gainful employment. The claim was reopened on January 24, 2024, and was reassigned to an ALJ on February 16, 2024. A Benefit Review Conference was conducted, followed by a formal hearing. On November 1, 2024, an Opinion, Award, and Order was entered indicating "Rodgers' physical condition has changed resulting in a decreased ability from performing light and sedentary work to performing at best a limited range of sedentary work." Considering the evidence, the ALJ found a worsening of the condition since the original award and that Rodgers was entitled to permanent total disability benefits under KRS 342.730(1)(a).

On December 5, 2024, Muhlenberg filed a Petition for Reconsideration of the November 1, 2024, Order wherein the ALJ found Muhlenberg "simply provides an impermissible re-argument of the merits of the claim" and

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overruled said petition. The ALJ went on to further explain the findings in greater detail in relevant part as referenced by the Court of Appeals:

KRS 342.125(l)(d) requires a change of disability to be shown by objective medical evidence of a worsening of impairment due to a condition caused by the injury since the date of the award or order. In Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 218 (Ky. 2006), the Court concluded a greater permanent impairment rating is not the only evidence by which the statute permits a worsening of impairment to be shown and if findings demonstrate an injured worker suffers a greater loss, loss of use, or derangement of a body part, organ system, or organ function due to a condition caused by the injury, they demonstrate a worsening of impairment.

. . . .

Evidence of a worsening of impairment also requires that there be a comparison of impairment at two points in time. Hodges v. Sager Corp., 182 S.W.3d 497, 501 (Ky. 2005). . .

. . . .

Therefore, I rely on the prior ALJ's January 8, 2021, findings Plaintiff could perform light duty work compared to Plaintiff's current objective medical findings and restrictions to a limited range of sedentary work as indicated by the opinions of Dr Gilbert, Dr Morgan, Dr Grossfeld, and Dr Bonnarens, to find Plaintiff has proven a change in occupational disability.

Muhlenberg then appealed the November 1, 2024, Opinion, Award, and Order, as well as the December 5, 2024, Order denying its Petition for Reconsideration to the Board. This appeal argued the opinions expressed by Dr. John Gilbert and Dr. Chad Morgan, D.C., did not establish a worsening of Rodgers' condition since the original decision on January 8, 2021, alleging an abuse of discretion, and that Dr. Gilbert's and Dr. Morgan's opinions were inappropriate as "substantial evidence" to support the ALJ's determination.

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The Board found the ALJ acted within his discretion in weighing the medical proof and claimant testimony. Citing extensively to the evidence the ALJ had relied upon, the Board found substantial evidence to support the finding and affirmed both the ALJ's award and denial of reconsideration. The Court of Appeals affirmed the Board's decision.

This appeal presents a series of interrelated questions arising from the reopening of a workers' compensation claim under KRS 342.125(1)(d). At its core, the Court must determine whether the ALJ's finding of a worsening of condition is supported by substantial evidence of probative value, and whether the record contains legally sufficient objective medical evidence of a post-award change in impairment. Resolution of that question requires the Court to clarify what qualifies as "objective medical evidence" under Kentucky law, including whether a change in impairment rating is necessary or whether functional decline may suffice under Colwell v. Dresser Instrument Division, 217 S.W.3d 213 (Ky. 2006). The Court must also decide whether the medical opinions relied upon by the ALJ—particularly those lacking an explicit comparison of the claimant's condition at two points in time or based on incomplete histories—constitute substantial evidence, and whether the record instead compels a finding of no worsening or, in the alternative, improvement. In addition, the Court must address the extent to which the ALJ may rely on the claimant's testimony in determining worsening and disability, and whether such testimony may supplement but not replace the statutory requirement of objective medical proof. The Court must further determine

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whether the ALJ properly concluded that the claimant is permanently and totally disabled under KRS 342.0011(11)(c) and the standards set forth in Hamilton, 34 S.W.3d at 51, and Stumbo, 461 S.W.3d at 396, particularly in the absence of clear proof of worsening. Finally, the Court must consider whether the ALJ mischaracterized material evidence and whether the Workers' Compensation Board and the Court of Appeals applied the correct standard of review or improperly deferred to findings unsupported by substantial evidence. Embedded within these questions is the threshold issue of whether Appellant's arguments demonstrate legal insufficiency in the evidence or merely seek an impermissible reweighing of proof.

II. STANDARD OF REVIEW

The ALJ, as the trier of fact, possesses the sole authority to determine the quality, character, and substance of the evidence, including the weight to be accorded to witness testimony and competing medical opinions. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). The ALJ may draw reasonable inferences from the evidence and may accept or reject any portion of the testimony, whether from lay or expert witnesses. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974).

Notwithstanding this broad discretion, the ALJ's findings must be supported by substantial evidence of probative value, defined as evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable persons. Smyzer v. B.F. Goodrich Chem. Co., 474 S.W.2d

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367, 369 (Ky. 1971). The Board may not substitute its judgment for that of the ALJ as to the weight of the evidence, KRS 342.285(2), and its review is limited to determining whether the ALJ's decision is clearly erroneous. A decision is clearly erroneous only if the evidence is so overwhelming as to compel a contrary result. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). The Court of Appeals, in turn, reviews the Board's decision for errors of law, including whether the Board misapplied controlling precedent or failed to recognize that the evidence compelled a different outcome. Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).

Within this framework, the Court must distinguish between permissible factfinding and impermissible legal error. While questions concerning the credibility, weight, and inferences drawn from the evidence fall within the ALJ's discretion, the question of whether the evidence rises to the level of substantial evidence—or satisfies a statutory requirement—is a question of law subject to appellate review. See Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Likewise, whether a medical opinion constitutes substantial evidence may present a legal issue where the opinion is based on an incomplete or inaccurate history. Cepero v. Fabricated Metals Corp., 132 S.W.3d 839, 842-43 (Ky. 2004). These principles guide the Court's review of reopening claims under KRS 342.125(1)(d), which requires a claimant to establish a change in disability "as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury." The interpretation of what constitutes "objective medical evidence" under the statute—including

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whether functional decline as opposed to an increased impairment rating may suffice under Colwell—presents a question of law reviewed de novo. 217 S.W.3d at 217-18. However, whether the particular evidence in the record satisfies that standard remains subject to the substantial evidence rule. Accordingly, the Court must determine (1) whether the ALJ applied the correct legal standard in assessing worsening and permanent total disability;

(2) whether the evidence relied upon by the ALJ constitutes substantial evidence of probative value under that standard; and (3) whether the record compels a different result. In doing so, the Court must also distinguish between arguments that merely seek to reweigh the evidence—an impermissible function on appellate review—and those that identify a failure of proof as a matter of law.

III. ANALYSIS

On appeal to this Court, Muhlenberg argues that the Court of Appeals erred in affirming the decisions of the Board. Specifically, the Appellant argues both "the Board and the Court of Appeals failed to fully consider the record in this case in light of the applicable law" in affirming the ALJ's inaccurate summary and interpretation of the record, which it relied upon for its orders. Applying the foregoing standard of review, whether the ALJ's finding of a post- award increased impairment and resulting permanent total disability is supported by substantial evidence of probative value or whether the evidence compels a contrary result is dispositive rather than whether the record merely contains conflicting evidence regarding the claimant's condition. Special Fund

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v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). When the record is viewed through that deferential lens, affirmance is warranted.

A. Substantial evidence supports the ALJ's finding of worsening.

KRS 342.125 (1)(d) requires proof of a change in disability "as shown by objective medical evidence of worsening or improvement of impairment due to a condition caused by the injury." The Appellant's primary contention is that the claimant failed to meet this burden because the record lacks a higher impairment rating and does not contain an explicit, physician-driven comparison of the claimant's condition at two points in time. That argument misapprehends both the statute and controlling precedent. In Colwell, this Court held a claimant need not demonstrate an increased impairment rating to establish worsening. 217 S.W.3d at 217-18. Rather, objective medical evidence demonstrating a greater loss, loss of use, or functional derangement of the body may suffice. Id.

Mindful that KRS 342.0011(1) requires a harmful change in the human organism to be evidenced by objective medical findings in order to be compensable, we are convinced that KRS 342.125(1)(d) and KRS 342.730(1) require no less at reopening. If such findings demonstrate that an injured worker suffers a greater loss, loss of use, or derangement of a body part, organ system, or organ function due to a

condition caused by the injury, they demonstrate a

worsening of impairment. A worsening of impairment may or may not warrant increasing the worker's permanent

impairment rating under the Guides.

Whether a worsening of impairment rises to the level of greater compensability is determined under KRS 342.730(1) and KRS 342.0011(11). KRS 342.730(1)(b) and KRS

342.0011(11)(b) require a worker who remains partially

disabled to show a greater permanent impairment rating in order to obtain a greater award. But KRS 342.730(1)(a) and

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KRS 342.0011(11)(c) require a worker who was partially disabled at the time of the initial award and totally disabled at reopening to show only that a worsening of impairment due to the injury is permanent and causes the worker to be totally disabled.

Colwell, 217 S.W.3d at 218 (emphasis added). Here, the ALJ relied on medical findings including decreased range of motion, radicular complaints, and other clinical indicators, together with medical opinions indicating significant functional limitation. Although the Appellant characterizes these findings as insufficient or inconsistent, they constitute objective medical evidence within the meaning of the statute. At a minimum, they provide a reasonable evidentiary basis from which the ALJ could infer that the claimant's functional condition had deteriorated since the original award.

Moreover, while Kentucky law requires a comparison of the claimant's condition at two points in time, it does not require that such comparison be articulated in a rigid or formulaic manner by a single physician. The ALJ may draw reasonable inferences from the record as a whole. The existence of prior and subsequent medical evaluations, coupled with the claimant's testimony and updated clinical findings, provided a sufficient evidentiary foundation for the ALJ's conclusion that a worsening occurred. The Court of Appeals articulated this analysis, stating:

In the case before us, the initial ALJ (Kinney) found that Rodgers retained the capacity to perform light work. That determination is res judicata. [LKLP CAC Inc. v. Fleming,

520 S W 3d 382, 387 (Ky 2017)]. On reopening—as was his prerogative—ALJ Smith was persuaded "by Dr. Gilbert's opinion Rodgers is likely occupationally disabled from any

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occupation for the foreseeable future." ALJ Smith noted that Dr Gilbert's opinion was supported by Dr Morgan's opinion

"that Rodgers is permanently and totally disabled from any gainful employment." ALJ Smith was also persuaded by Rodgers' credible testimony that "there is not any job he has had in his past or any other job that he could do."

Although the original ALJ found the claimant capable of light work, the reopening ALJ—within his authority—relied on new medical opinions and credible testimony to conclude that the claimant's condition had worsened to the point of permanent total disability.

B. The medical opinions constitute substantial evidence.

The Appellant further argues that the ALJ improperly relied on the opinions of Drs. Gilbert and Morgan, asserting that those opinions lack probative value because they were based on incomplete histories or failed to expressly compare the claimant's condition over time. This argument again challenges the weight rather than the existence of substantial evidence. The ALJ is entitled to choose among competing medical opinions and to rely on those he finds most persuasive. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993). Even where a medical opinion contains arguable deficiencies, it may still constitute substantial evidence if it is grounded in clinical examination and objective findings.

The Appellant relies heavily on Cepero v. Fabricated Metals Corp., 132 S.W.3d 839 (Ky. 2004), to argue that the medical opinions upon which the ALJ relied lack probative value and therefore cannot constitute substantial evidence. That reliance is misplaced. In Cepero, this Court held that a medical opinion may not constitute substantial evidence where it is based on a

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substantially inaccurate or largely incomplete medical history, particularly where the omitted facts are material to the causation analysis. Id. at 842-43. There, the claimant failed to disclose a significant prior knee injury, and the physician's opinion attributing the claimant's condition to a work injury was premised on that incomplete and misleading history. Because the omitted information was critical to the physician's conclusions, the opinion was deemed unreliable as a matter of law and insufficient to support the ALJ's finding.

The present case is materially distinguishable. First, the alleged deficiencies identified by the Appellant do not rise to the level of the

"substantially inaccurate or largely incomplete" history present in Cepero. Id. The medical providers here examined the claimant, documented objective findings, and rendered opinions based on their clinical observations. While the Appellant argues that certain providers did not explicitly reference the original award or fully account for all prior medical records or intervening subsequent injuries, the record does not demonstrate that the opinions were based on a fundamentally false or misleading history. Rather, the challenge concerns the depth and completeness of the comparison, not the existence of a materially inaccurate factual foundation. Second, unlike in Cepero, the medical opinions at issue are not the sole basis for the ALJ's findings. The ALJ relied on multiple sources of evidence, including objective medical findings and the claimant's testimony, in determining that a worsening occurred. Even if one opinion was subject to criticism, the presence of corroborating medical and lay

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evidence distinguishes this case from the singular, fatally flawed opinion in Cepero. Third, the issue here is not one of causation based on an undisclosed prior injury, but rather whether the claimant's condition has worsened over time. The providers' evaluations were based on current examinations and documented functional limitations. Any alleged failure to explicitly compare prior and current conditions goes to the weight of the evidence, not its admissibility or legal sufficiency. Finally, Kentucky courts have consistently limited Cepero to circumstances involving egregious factual inaccuracies that render a medical opinion inherently unreliable. See, e.g., Magic Coal Co. v. Fox,

19 S.W.3d 88, 96 (Ky. 2000). This is not such a case. The ALJ was presented with competing interpretations of the medical evidence and exercised his discretion in resolving those conflicts. Accordingly, Cepero does not compel exclusion of the medical opinions relied upon by the ALJ, nor does it render the ALJ's findings unsupported by substantial evidence. The record does not demonstrate the type of material misrepresentation or wholly inaccurate history required to invoke Cepero.

The Appellant emphasizes evidence suggesting that the claimant's condition may have improved in certain respects, including changes in gait, mobility, and use of assistive devices. Even assuming that such evidence supports a competing inference, it does not compel reversal. Under Francis, the presence of conflicting evidence is insufficient to disturb the ALJ's findings. Reversal is warranted only where the evidence is so overwhelming as to require a different result. 708 S.W.2d at 643. Here, the record contains both evidence

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supporting worsening and evidence suggesting stability or improvement. In such circumstances, the resolution of those conflicts lies squarely within the ALJ's discretion. The ALJ was entitled to view the claimant's overall condition—including persistent pain, functional limitations, and inability to sustain work—as indicative of deterioration, notwithstanding isolated indicators of improvement. That interpretation is reasonable and supported by the record.

The ALJ also relied on the claimant's testimony regarding his physical limitations and inability to work. Kentucky law permits such testimony to be considered in determining occupational disability. Hush v. Abrams, 584 S.W.2d 48, 50 (Ky. 1979). While claimant testimony cannot independently satisfy the statutory requirement of objective medical evidence, it may be considered in conjunction with medical proof. Here, the claimant's testimony was consistent with the medical findings and provided additional support for the ALJ's conclusion regarding worsening and disability. The ALJ did not substitute lay testimony for medical proof but rather used it to contextualize and corroborate the medical evidence.

C. Substantial evidence supports the finding of permanent total disability.

Having found a worsening of the condition, the ALJ proceeded to determine whether the claimant is permanently and totally disabled under KRS 342.0011(11)(c), applying the standards set forth in Ira A. Watson Department Store v. Hamilton, 34 S.W.3d at 51, and Stumbo, 461 S.W.3d at 396.

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That determination is likewise supported by substantial evidence. The ALJ considered the claimant's physical limitations, medical restrictions, and testimony regarding his inability to sustain work. The ALJ was not required to find that the claimant could perform sedentary work merely because some evidence suggested limited capacity. Rather, the relevant inquiry is whether the claimant can perform work on a regular and sustained basis in a competitive economy. The ALJ reasonably concluded that he cannot. The Appellant's assertion that the ALJ mischaracterized the record amounts to a disagreement with how the ALJ interpreted the evidence. The ALJ summarized the medical findings, identified the evidence he found persuasive, and explained the basis for his conclusions. The fact that the Appellant interprets the same evidence differently does not establish clear error.

Finally, the Board and the Court of Appeals properly applied the deferential standard of review. Both tribunals recognized that they could not reweigh the evidence and that the ALJ's decision must be affirmed if supported by substantial evidence. There is no indication that either tribunal misapplied the law or failed to consider whether the evidence compelled a different result. Essentially, the Appellant's arguments challenge the ALJ's weighing of the evidence and urge this Court to adopt a different interpretation of the record. Such arguments do not identify a failure of proof as a matter of law but instead seek an impermissible reweighing of the evidence.

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IV. CONCLUSION

Based on the foregoing, we affirm the Court of Appeals' decision affirming the Workers' Compensation Board's Opinion affirming the Administrative Law Judge's reopening and award of permanent total disability. All sitting. All concur.

COUNSEL FOR APPELLANT:

Lori Vanhoose Daniel Walton Niehaus Law, PLLC

COUNSEL FOR APPELLEE, GREGORY RODGERS:

McKinnley Morgan

Morgan, Collins, Yeast & Salyer

ADMINISTRATIVE LAW JUDGE:

Hon. Kenneth C. Smith, III WORKERS' COMPENSATION BOARD:

Michael Wayne Alvey, Chairman