Full Opinion

RENDERED: OCTOBER 22, 2026 TO BE PUBLISHED Supreme Court of Kentucky 2025-SC-0508-WC NATHAN O'BANNON APPELLANT ON APPEAL FROM COURT OF APPEALS V. NO. 2025-CA-1128 WORKERS' COMPENSATION NO. WC-24-00596 MUHLENBERG COUNTY COAL CO., APPELLEES LLC; HONORABLE LAURA R. BEASLEY, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD OF KENTUCKY OPINION OF THE COURT BY JUSTICE KELLER AFFIRMING IN PART AND REVERSING IN PART Nathan O’Bannon worked for Muhlenberg County Coal Co. (“MCC”) for four years. His last day of employment was April 25, 2024, when he alleges he sustained cumulative trauma injuries to his neck, back, shoulders, and knees due to his work in the coal mines. An Administrative Law Judge (“ALJ”) awarded O’Bannon permanent partial disability and medical benefits after determining his injuries were caused by his employment. MCC sought review by the Workers’ Compensation Board (“the Board”), which affirmed the ALJ. The Court of Appeals affirmed the Board in part and reversed the Board in part, as discussed in greater detail infra. We affirm the Court of Appeals in part and reverse in part to reinstate the award of the ALJ in full. FACTS AND PROCEDURAL HISTORY O’Bannon worked in the coal industry for 10 years, and the last four were spent working for MCC. His duties varied over the years, but he spent the first seven years as a pinner, operating a roof bolt machine (i.e., securing roofs in the mines). O’Bannon had to load the machine three to four times per shift with bundles of 500 - 700 six-foot pins and 10 - 15 bundles of plates. He described his work as a pinner as being on his knees in confined spaces as low as four feet tall, constantly looking up and to the left while he operated the roof bolter with his right hand. He had to grab pins, lift them overhead, and push them into place. He placed two pins in a row, every four feet, in 12 - 17 areas in the mine per day, in a 12-to-14-hour shift. O’Bannon testified he would hit his head almost every day as a pinner. At the time of his injuries, he was a face boss. 1 Although he had supervisory duties, the position continued to require heavy physical labor and repetitive work due to lack of staffing, including pulling cables, installing belts, hanging chains, operating a roof bolter, and lifting equipment and machinery weighing anywhere from 45 - 150 pounds. O’Bannon filed his workers’ compensation claim on June 17, 2024, just a few days prior to his 33rd birthday. He testified via deposition, and later at the 1 The United States Department of Labor published a Glossary of Coal Mining Terms in 2008, in which “face” is defined as “the principle operating place in a mine. The working place where fresh ore or coal is exposed and being extracted. A mine may have many operating faces.” See https://www.dol.gov/sites/dolgov/files/oalj/PUBLIC/BLACK_LUNG/REFERENCES/R EFERENCE_WORKS/USDOL_OALJ_BLACK_LUNG_BENCHBOOK_GLOSSARY_OF_MI NING_TERMS_(2008).PDF. 2 hearing before the ALJ, about the pain and physical limitations in his neck, hands, lower back, shoulders, and knees. He explained that he was unable to play with his children and had to curtail his favorite hobby of hunting. He had not worked since his last day at MCC and did not think he could ever return to working in the mines due to his injuries. On March 14, 2025, the ALJ issued an Opinion, Award, and Order, finding that O’Bannon suffered cumulative trauma to his neck, shoulders, hands, and knees, and awarded permanent partial disability and medical benefits. The ALJ considered the medical reports and deposition testimony of several medical providers. She ultimately relied on the opinion of Dr. John W. Gilbert, who diagnosed O’Bannon with cervical radiculopathy (10% whole person impairment), lumbar radiculopathy (10% whole person impairment), bilateral shoulder weakness (4% whole person impairment), knee weakness (10% whole person impairment in each knee), and bilateral median neuropathy (i.e., carpal tunnel syndrome; 4% whole person impairment) secondary to 10 years of underground coal mining. Dr. Gilbert assigned a combined whole person impairment of 40% pursuant to the 5th Edition of the American Medical Association’s (“AMA”) Guides to the Evaluation of Permanent Impairment. In contrast, Dr. Thomas O’Brien conducted an independent medical examination at the request of MCC. Dr. O’Brien diagnosed O’Bannon with diffuse, widespread subjective complaints of non-radicular neck and back pain, shoulder pain, knee pain, and hand pain. (Emphasis added.) He concluded 3 that O’Bannon’s work in the coal industry did not cause cumulative trauma or repetitive stress injuries and assigned a 0% whole person impairment. Dr. Jeffrey E. Hazelwood also conducted an independent medical examination at the request of MCC. Although Dr. Hazelwood diagnosed O’Bannon with non-specific axial neck and low back pain, left shoulder pain with possible rotator cuff pathology, hand paresthesia with possible cubital/carpal tunnel, and intrinsic knee pain with possible degenerative joint disease/arthritis, he did not believe any of the conditions were caused by O’Bannon’s employment with MCC. He also declined to assign a whole person impairment rating because he believed O’Bannon had not reached maximum medical improvement. The ALJ noted that Dr. Gilbert’s opinion was supported by Dr. Hazelwood’s findings even though Dr. Hazelwood reached a different conclusion. The ALJ ultimately concluded that O’Bannon had a 40% total combined whole person impairment rating for his work-related cumulative trauma injuries, consistent with Dr. Gilbert’s assessment. She concluded O’Bannon cannot return to underground mining work and awarded permanent partial disability benefits enhanced by the 3-multiplier pursuant to KRS 2 342.730(1)(c)(1), as well as medical benefits. MCC filed a petition for reconsideration and a request for further findings of fact. The ALJ denied the requested relief, finding that MCC was simply 2 Kentucky Revised Statutes. 4 trying to re-argue the merits of the claim. MCC then appealed to the Board, which affirmed the ALJ. MCC sought direct review by the Court of Appeals which held that, although there was substantial evidence to support the ALJ’s determination that O’Bannon suffered a cervical spine injury, the ALJ relied on a medical opinion that was not supported by the AMA Guides. The Court of Appeals also reversed and remanded O’Bannon’s claims related to his shoulders and hands, holding that each body part requires its own impairment rating. This appeal followed. ANALYSIS We begin by noting our standard of review. It is well-settled law that [t]he 1986 [Workers’ Compensation] Act intended to streamline the workers' compensation process and expedite review, and we will not apply it in a way that works the opposite result. The [Board] and the Kentucky Court of Appeals are not way stations, or rest stops, along the road to the Kentucky Supreme Court. The parties in cases such as the present one must accept that, notwithstanding their right to demand further appellate review, the body performing further review is there to address new problems, not to redecide the same evidentiary questions. The [Board] is entitled to the same deference for its appellate decisions as we intend when we exercise discretionary review of Kentucky Court of Appeals decisions in cases that originate in circuit court. The function of further review of the [Board] in the Court of Appeals is to correct the Board only where the the [sic] 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. The function of further review in our Court is to address new or novel questions of statutory construction, or to reconsider precedent when such appears necessary, or to review a question of constitutional magnitude. Our purpose in 5 publishing this Opinion is to advise these parties, and everyone else involved in the workers' compensation process, that further review is so limited and they should proceed accordingly. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky. 1992). To that end, this case does not present a situation that requires this Court to address new or novel questions of statutory construction, to reconsider precedent, or to review a question of constitutional magnitude. MCC has maintained throughout the proceedings that Dr. Gilbert’s analysis is flawed because he assigned a 10% whole person impairment rating to O’Bannon’s cervical spine, which is inconsistent with the AMA Guides. Specifically, with regard to Dr. Gilbert’s diagnosis of cervical radiculopathy, his report indicates “severe degenerative disc disease, C4 through C7[,]” and he assigned a 10% whole person impairment rating based on his diagnosis. Table 15-5 in the AMA Guides lists five categories for rating impairment due to cervical spine disorders. Category II provides criteria for a whole person impairment rating of 5% - 8%. Category III provides criteria for a whole person impairment rating of 15% - 18%. Accordingly, Dr. Gilbert’s 10% whole person impairment rating falls between Categories II and III as indicated in Table 15-5. During his deposition, not only did Dr. Gilbert explain that O’Bannon had a positive left Spurling’s test and positive left straight leg test, but he also explained the methodology behind the tests. 3 Dr. Gilbert also referred to x-rays 3 Dr. Gilbert explained in his deposition testimony that, to perform a Spurling’s test, the patient attempts to touch chin to shoulder. Any pain in the shoulder during the exercise is considered a positive result. Dr. Gilbert also explained that a straight leg test involves the patient lifting each leg, which pulls on the sciatic nerve, which 6 of O’Bannon’s cervical and lumbar spine and testified that he is board certified in neuroimaging. MCC did not question Dr. Gilbert specifically regarding the 10% rating assigned to O’Bannon’s cervical spine during his deposition. The two physicians who examined O’Bannon on behalf of MCC, Dr. O’Brien and Dr. Hazelwood, offered no criticism whatsoever of Dr. Gilbert’s diagnoses, methods, or impairment ratings in their reports. Nor did Dr. O’Brien or Dr. Hazelwood testify via deposition or at the final hearing. In other words, Dr. Gilbert’s 10% impairment rating assigned to the cervical spine went wholly uncontested by any other medical expert. While it is true that Table 15-5 in the AMA Guides does not specifically list 10% as an option for rating impairment due to cervical disorders, this does not require reversal of the ALJ’s decision. This case is distinguishable from Jones v. Brasch-Barry Gen. Contractors, 189 S.W.3d 149 (Ky. App. 2006). In Brasch-Barry, the ALJ relied upon a 26% permanent impairment rating assigned by Dr. Gary Reasor, who was one of three doctors who evaluated the claimant for a back injury. However, Dr. Reasor acknowledged in his testimony the claimant had a “Category III” disability and, according to the AMA Guides, this meant the impairment rating should be 10% - 16%. The 26% impairment rating assigned by Dr. Reasor was at the upper range for a “Category IV” disability. Nevertheless, after displaying “personal antagonism” pulls on the nerve roots in the lower back. If the maneuver causes pain, numbness, or weakness in a specific pattern within 30 degrees of lifting, it is considered a positive result. Both the Spurling’s test and the leg lift test are considered objective tests with a subjective component. 7 towards the AMA Guides (id. at 154), Dr. Reasor stood by his impairment rating of 26%, which was approximately double that of a “Category III” disability. Upon remand from this Court, the Court of Appeals ordered the case remanded to the ALJ with instructions to select an impairment rating in accordance with a “Category III” disability. In the case at bar, Dr. Gilbert was never questioned or criticized about his impairment rating for the cervical spine. This Court revisited Brasch-Barry and provided clarification. To wit, [t]his 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 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 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 Guides is not to require a strict adherence to the 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 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 Guides is different from one that strictly adheres to the Guides. Plumley v. Kroger, Inc., 557 S.W.3d 905, 912–13 (Ky. 2018) (emphasis in original; footnotes omitted). 8 Although Dr. Gilbert’s 10% rating falls in between “Category II” and “Category III” in Table 15-5, there was simply no medical evidence presented to question, let alone contradict, his assessment or to point to a conclusion that his deviation from the AMA Guides was not medically sound or grounded in the AMA Guides with regard to the cervical impairment rating, even though it did not strictly adhere to them. Dr. Gilbert’s slight deviation of between 2% and 5% is distinguishable from an impairment rating that was approximately double that of the assigned category in Brasch-Barry. Accordingly, there is no reason based in law, fact, or interpretation of the AMA Guides that the decision of the ALJ and the Board should not stand with regard to Dr. Gilbert’s 10% impairment rating of O’Bannon’s cervical spine. The Court of Appeals also held that the matter should be remanded to the ALJ for an impairment rating to be assigned to each of O’Bannon’s shoulders and wrists. We again disagree. Dr. Gilbert’s report reads, in regard to bilateral carpal tunnel syndrome, “…positive bilateral Phalen’s test, Tinel’s test and decreased sensation to light touch in the median distribution and 4/5 decreased grips bilaterally.” He then assigned a 4% whole person impairment rating based on “[b]ilateral carpal tunnel syndrome.” With regard to O’Bannon’s shoulders, the report reads, “[o]n examination of his shoulders, he has got reproducible weakness in both shoulders at 4/5 in terms of flexion, extension, abduction, and adduction.” Dr. Gilbert then assigned a 4% whole person impairment rating based on “[r]eproducible weakness in the bilateral shoulders.” 9 Pella Corp. v. Bernstein, 336 S.W.3d 451 (Ky. 2011) is illustrative, but distinguishable from the instant action. In Pella Corp., the doctor’s treatment notes consistently showed that the claimant’s left shoulder was worse than the right. Notwithstanding, when the same doctor completed a medical report for the workers’ compensation claim, he diagnosed “adhesive capsulitis of the shoulders greater on the left than the right” and assigned a 10% permanent impairment rating without differentiating between the two shoulders. 336 S.W.3d at 452-53. The ALJ concluded she lacked the discretion “to invade the evidence of bilateral shoulder impairment and speculate on a percentage that is applicable to the left shoulder.” Id. at 453. This Court held that the treatment notes consistently describing the condition of the left shoulder as worse than the right enabled the ALJ to reasonably infer that the doctor attributed more than half of the 10% impairment rating to the claimant’s left shoulder. We concluded the ALJ was “free under the circumstances to consider the relevant medical evidence and select a reasonable impairment rating[.]” Id. at 454. The instant action is distinguishable because there was no medical evidence presented to suggest that one shoulder or wrist was worse than the other. Although O’Bannon testified his left side felt worse than his right, the 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 adversary party's total proof.” Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000) (citation omitted). Dr. Gilbert’s notes indicate the problems in 10 O’Bannon’s wrists and shoulders were equal bilaterally. 4 If this matter were to be remanded to the ALJ, she would be confronted with the same medical evidence and testimony she has already considered. In other words, Dr. Gilbert’s opinion that an equal impairment rating applied to both shoulders and wrists will remain unchanged. It will also remain unchallenged because MCC failed to present medical evidence that contradicted or criticized Dr. Gilbert’s assessment of O’Bannon’s shoulders and wrists. Moreover, the shoulders and wrists constitute a small portion (both 4%) of O’Bannon’s whole person impairment. The Court of Appeals stated, in dicta, that “[s]hould O’Bannon ever reopen his workers’ compensation claim due to worsening of the injury, separate impairment ratings would be needed.” If, in the future, O’Bannon experiences worsening of his injuries in one shoulder or wrist, KRS 342.125(1)(d) permits reopening of his claim provided there is “objective medical evidence” of worsening or improvement. In other words, O’Bannon may need to provide additional medical evidence that may differentiate injuries in one shoulder or wrist from the other sometime in the future, but is not incumbent at this stage to do so. 4 O’Bannon was also examined by Chiropractor John Rushing. The ALJ summarized the medical evidence from Dr. Rushing, in relevant part only, as “bilateral shoulder… degenerative joint disease, and bilateral carpal tunnel syndrome.” Although the ALJ relied on Dr. Gilbert’s opinion, Dr. Rushing’s diagnoses are not inconsistent. 11 CONCLUSION The Board recognized that its function in reviewing the ALJ’s decision was limited to a determination of whether the findings made were so unreasonable under the evidence that they must be reversed as a matter of law. See, e.g., Ira A. Watson Dep't Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). In recognizing this standard, the Board, in an appropriately supported and well-written opinion, declined to disturb the ALJ’s findings. The Court of Appeals erred in reversing and remanding because the Board did not overlook or misconstrue controlling statutes or precedent or commit an error so flagrant as to cause gross injustice, as required by the standard set forth in Kelly. Further, the ALJ’s findings related to Dr. Gilbert’s assessment do not present a situation that requires this Court to address new or novel questions of statutory construction, or to reconsider precedent, or review a question of constitutional magnitude. The Court of Appeals is affirmed in part and reversed in part to reinstate the decision of the Board, and accordingly, the Opinion, Award, and Order of the ALJ in full. All sitting. Lambert, C.J.; Goodwine, Nickell, and Thompson, JJ., concur. Bisig, J., dissents by separate opinion which Conley, J., joins. BISIG, J., DISSENTING: Respectfully, I dissent. I agree with the Court of Appeals that Dr. Gilbert’s assigned impairment ratings for O’Bannon’s neck, shoulders, and hands did not conform with the mandates of the AMA Guides, as required by KRS 342.730(1)(b). 12 Dr. Gilbert’s report explicitly references the Guides and a chart used to assess impairment ratings for cervical injuries. Guides, p. 392. That chart clearly delineates various ranges of impairment ratings available to an examining physician, yet Dr. Gilbert assigned an impairment rating that fell outside those ranges. This Court has determined that, in certain instances, a physician’s opinion was not properly grounded in the Guides, i.e., when a physician utilizes the wrong edition of the Guides, City of Ashland v. Stumbo, 461 S.W.3d 392, 396 (Ky. 2015), or when a physician combined two impairment ratings that the Guides explicitly stated should not be combined, Cent. Baptist Hosp. v. Hayes, No. 2012-SC-000752-WC, 2013 WL 4623489, *2 (Ky. Aug. 29, 2013). Simply put, a 10% impairment rating is not an available option on the chart Dr. Gilbert utilized. By assigning an impairment rating outside the categorical ratings explained by the Guides, Dr. Gilbert’s opinion as to O’Bannon’s cervical impairment failed to generally conform to the Guides as required by Kentucky law. Further, the Guides state that “[i]n deciding where to place an individual’s impairment rating within a range, the physician needs to consider all the criteria applicable to the condition . . . In some cases, the physician may need additional information to determine where to place an individual in the range.” Guides, p. 20. Therefore, an impairment rating outside the ranges expressly provided by the Guides is not in general conformity with the Guides. “[A]ny assessment that disregards the express terms of the AMA Guides cannot constitute substantial evidence to support an award of workers' compensation 13 benefits.” Watkins v. Kobe Aluminum USA, Inc., No. 2013-SC-000334-WC, 2014 WL 4160212, at *3 (Ky. Aug. 21, 2014) (quoting Jones v. Brasch-Barry Gen. Contractors, 189 S.W.3d 149, 153-54 (Ky. App. 2006)). As such, I agree with the Court of Appeals that the ALJ impermissibly adopted Dr. Gilbert’s assessed impairment rating for O’Bannon’s cervical injury. While it is undisputed that the interpretation of the Guides is to be left to medical professionals, the plain language of the Guides clearly prescribes the impairment percentages available to a physician when evaluating a cervical injury. The 10% impairment rating assigned by Dr. Gilbert does not fall into the categories delineated by the Guides. As to shoulder assessment, I agree with the Court of Appeals that the left and right shoulders are distinct parts of the body and thus require their own impairment ratings. Dr. Gilbert explained that he assessed O’Bannon’s shoulders using manual muscle testing. The Guides explain that “[m]anual muscle testing assesses an individual’s ability to move a joint through a full range of motion against gravity, or move it against additional resistance applied by the examiner, and/or hold the joint position against resistance.” Guides, p. 509 (emphasis added). Table 16-35 references shoulder—singular—not shoulders as a combined value or assessment. Further, Figure 16-1b, the Upper Extremity Impairment Evaluation Record, is one method for recording results from a physical examination. Guides, p. 437. That evaluation record instructs that “[i]f both limbs are involved, calculate the whole person impairment for each on a separate chart 14 and combine the percents (Combined Values Chart).” This type of evaluation for shoulders, which Dr. Gilbert utilized, considers flexion, extension, adduction, abduction, ankylosis (abnormal stiffness/immobility), and rotation. Upper extremity impairments are then converted to a whole person impairment rating by means of Table 16-3. Guides, p. 439. Therefore, I would find that the ALJ erred in relying on Dr. Gilbert’s assessed impairment rating that improperly grouped O’Bannon’s shoulders together. I would likewise find that the ALJ erred in adopting Dr. Gilbert’s rating for O’Bannon’s hands because the left and right hands are separate parts of the body and thus require their own impairment ratings. In Example 18-4, the Guides describe a woman who experiences bilateral forearm pain and underwent bilateral carpal tunnel releases. The impairment ratings assessed in that example were 5% impairment for the right radial nerve and 5% for the left radial nerve. Guides, p. 589. Therefore, the ALJ erred in grouping the hands together and assigning a singular impairment rating. As such, I would affirm the Court of Appeals. Conley, J., joins. 15 COUNSEL FOR APPELLANT: McKinnley Morgan Morgan, Collins, Yeast, & Salyer COUNSEL FOR APPELLEE: Lori V. Daniel Walton Niehaus Law, PLLC ADMINISTRATIVE LAW JUDGE: Hon. Laura R. Beasley WORKERS’ COMPENSATION BOARD: Hon. Michael Wayne Alvey, Chairman 16