Opinion
NO. 2019-CA-001333-WC
04-24-2020
ARMSTRONG COAL COMPANY, INC. APPELLANT v. BRIAN PIPER; HONORABLE MONICA RICE-SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Will E. Messer Lexington, Kentucky BRIEF FOR APPELLEE: Ronald K. Bruce Greenville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-14-58536 OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES. CALDWELL, JUDGE: Armstrong Coal Company (Armstrong) contends that the Workers' Compensation Board (Board) erred in affirming the amended opinion, order, and award on remand by the Administrative Law Judge (ALJ) which found that Armstrong failed to meet its burden of proving a pre-existing active impairment, despite the ALJ having found in her original opinion that Brian Piper (Piper) had a pre-existing active impairment. As the Board had only vacated the ALJ's original opinion "in part" and did not specifically state that the finding of a pre-existing active impairment was vacated, Armstrong contends that the ALJ improperly "reversed" her prior finding of an active, pre-existing impairment on remand. Considering the facts and procedural history here, we disagree with Armstrong and thus affirm.
BACKGROUND
On November 27, 2017, the ALJ rendered the original opinion, order, and award concerning Piper's claim against Armstrong for a May 1, 2014 work injury. Therein, the ALJ awarded Piper temporary total disability benefits (TTD), permanent partial disability benefits (PPD), and payment of medical expenses, with Armstrong receiving a credit for prior overpayment of TTD and a deadline established for submitting motions for attorneys' fees. Relevant to the issues now before us, the ALJ reviewed the evidence and made note of the opinions of Dr. Burkett, Dr. Butler, and Dr. Best regarding impairment.
Piper had been struck on the head by a cable and thrown to the ground, apparently causing and/or worsening lower back pain.
The facts concerning Piper's May 1, 2014 work injury and the medical proof presented to the Administrative Law Judge are set forth in detail in our opinion in Piper v. Armstrong Coal Company, No. 2018-CA-000817-WC, 2018 WL 6721267 (Ky. App. Dec. 21, 2018). Therefore, we will attempt to keep our factual discussions as brief as possible in this opinion.
Dr. Benjamin Burkett, who treated Piper for back pain from November 2014 through July 2016, made notes from a follow-up appointment with Piper in March 2016 that "there was an 80% exacerbation of pre-existing condition" and "opined the work injury amplified and expedited the necessity for surgery." (ALJ's Nov. 27, 2017 opinion at *5). Later in March 2016, Dr. Burkett found Piper to be at maximum medical improvement and placed restrictions on his activities including standing, walking, stooping, twisting, bending, lifting, and sitting. (Id.) Dr. Burkett stated in a July 2016 letter that he found a "10-13% impairment" based on a herniated disc and that "he does not believe Piper meets the criteria to reach greater than 20% impairment" based on other factors, but "admitted Piper could be considered for a 20-23% impairment because he had surgical fusion" and would refer further questions about disability ratings to "a specialist in occupational medicine and ratings." (Id. at *5-6).
Dr. James Butler, who conducted an independent medical evaluation submitted by Piper, assigned a "20% whole person impairment" for the injury and did not address pre-existing conditions. (Id. at *6).
Dr. Michael Best, who conducted an independent medical evaluation submitted by Armstrong, stated that medical records regarding Piper's treatment by other doctors for back pain, etc., in 2013 "would help in determining whether there was a pre-existing active medical condition requiring care and treatment" before the May 1, 2014, work injury and "assigned a 7% whole person impairment[,]" as "[h]e found Piper had a 20% total impairment with a 13% rating for the pre-existing active condition and 7% causally related to the May 1, 2014 injury." (Id. at *8).
Having reviewed the evidence, the ALJ then made its findings of fact and conclusions of law concerning impairment. "Piper has sustained a 20% whole person impairment with 80% due to the work injury" on May 1, 2014. (Id. at *9). Piper had sustained a serious injury; however, he also had a pre-existing condition that "was exacerbated by the work injury." (Id. at *10). Dr. Butler and Dr. Best both found "total person impairment of 20 %" but "[t]he medical evidence differs with regard to the extent of any pre-existing condition." (Id.)
She made findings concerning pre-existing condition. The ALJ found "based on the treatment records that Piper had a pre-existing active low back condition[.]" (Id.) The ALJ referenced the records of Dr. Rasheed and Dr. Nguyen documenting Piper's "complaints of low back pain radiating into the hip and leg" in 2013 and noted that Piper continued to work while receiving treatment. Piper testified to taking pain medications and muscle relaxers at the time of the work injury and his first treatment after the work injury being for a "previously scheduled pain management appointment." (Id.)
As for apportioning what part of the total body impairment was due to the work injury (rather than pre-existing condition), she found as follows:
The treating physician Dr. Burkett acknowledged and addressed the pre-existing condition. He opined the work injury resulted in an 80% exacerbation of the pre-existing condition. He opined the work injury amplified and necessitate [sic] the need for surgery. Based on the opinion of Dr. Burkett, the ALJ finds 80% of Piper's 20% impairment is related to his work injury, which would be a 16% impairment as a result of the work injury. The ALJ finds Dr. Burkett's opinion regarding apportionment between the work injury and pre-existing injury most persuasive.(Id. at *10-11). The ALJ's opinion went on to state that Piper was not due permanent total disability benefits and that Armstrong was due a credit for overpayment of TTD, before setting forth the TTD award, the PPD award, credit for overpayment of TTD, and a deadline for attorneys' fees motions.
Although Dr. Best assigns 7% of the total 20% to the work-related injury, his opinion on whether the condition is due to pre-existing active condition or the work related condition is not definite. Dr. Best says the disc extrusion at L2/3 and L4/5 are preexisting conditions; however, he specifically states the entire 2013 treatment records would help definitively determine the status of the pre-existing condition and determine whether there was a pre-existing medical condition. He further states that whether this is a work-related condition depends on the findings from the 2013 treatment. It is puzzling how Dr. Best can make any apportionment to the work injury or pre-existing when he clearly implies he needs more information to make such determinations.
Based on the foregoing, the ALJ finds Piper has sustained 16% impairment as a result of his work-related injury on May 1, 2014.
In its brief to the Board, Armstrong stated that it "appeals from an award of permanent partial disability ('PPD') benefits" to Piper and it raised just one issue on appeal—alleged error in the ALJ's "ruling that Piper, an underground coal miner, suffered 16% whole person impairment from the May 1, 2014 work injury when there was no such rating in the record." (Record "R." at 281).
In May 2018, the Board issued its opinion, styled as "Opinion Vacating in Part and Remanding," and stated on page 10 of this opinion that "[w]e vacate the ALJ's award of PPD benefits and remand for additional findings." The Board noted Armstrong's argument that the ALJ must rely on one of the three impairment ratings in the record, identified as Dr. Best's 7% Whole Person Impairment (WPI) rating, Dr. Burkett's 10-13% impairment rating, or Dr. Butler's 20% WPI rating. The Board directed on page 11 of this opinion that on remand "the ALJ shall not rely on Dr. Burkett's vague language in determining an impairment rating for the May 1, 2014 injury and shall, instead, rely upon one of the three impairment ratings in the record." And the Board concluded that "the award of PPD as granted" in the ALJ's November 27, 2017 opinion was "VACATED" and that "[t]his claim is REMANDED to the ALJ for additional findings and a determination of the appropriate impairment rating attributable to the work injury and an award of income benefits." (R. at p. 375).
Piper petitioned this Court for review of this Board opinion, and this Court issued an opinion in December 2018, in which it ultimately stated that "the opinion of the Board vacating in part and remanding for additional findings is affirmed." Piper, 2018 WL 6721267, at *4. In our December 2018 opinion, we noted that Piper's appeal concerned the Board's having "vacated and remanded for further findings the Administrative Law Judge's (ALJ) assignment of 16% impairment rating resulting from Piper's work injury." Id. at *1. And we characterized the issue on appeal as whether the ALJ had erred in determining how much of his total impairment was from the work injury and how much was from a "pre-existing active condition."
"Brian Piper appeals from an opinion of the Workers' Compensation Board which vacated and remanded for further findings the Administrative Law Judge's (ALJ) assignment of a 16% impairment rating resulting from Piper's work injury. At issue is whether the ALJ relied on substantial medical evidence in calculating what percentage of Piper's total impairment was attributable to the work injury and what percentage was attributable to a preexisting active condition." Piper, 2018 WL 6721267, at *1.
Our opinion upheld the Board's determination that the ALJ had incorrectly awarded PPD benefits for a 16% impairment based upon the ALJ's finding that 80% of a total body impairment of 20% was due to the work injury. And we agreed with the Board that the ALJ's calculation of the final impairment rating based on the "80% exacerbation of preexisting condition" statement by Dr. Burkett was in error because it was not "in accordance with the AMA guides as required by statute and by our case law." Id. at *3.
Earlier in the opinion, we had noted Armstrong's argument that "the ALJ is not permitted to arrive at a separate and distinct impairment rating from those assigned by the physicians of record" and thus only three possible impairment ratings were permissible: 1) 7% from Dr. Best, 2) 10-13% from Dr. Burkett, or 3) 20% from Dr. Butler. And we noted its further argument that the ALJ could properly rely only on Dr. Best's 7% impairment rating "because he was the only physician who addressed Piper's preexisting active impairment in accordance with the AMA Guides." Id. at *3. In response to these arguments, we noted the reservations about Dr. Best's opinion expressed by the ALJ and further stated that:
"[T]he burden of providing the existence of a pre-existing condition falls upon the employer." Finley v. DBM Techs., 217 S.W.3d 261, 265 (Ky. App. 2007) (citing Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984)). It is possible when considering the evidence on remand that the ALJ may find Armstrong did not meet its burden of proving a preexisting active condition, which must "be symptomatic and impairment ratable pursuant to the AMA Guidelines immediately prior to the occurrence of the work-related injury." Id. The ALJ previously found the preexisting condition to be symptomatic but may conclude the employer failed to prove that it was impairment ratable.Id. at *4. We then concluded the opinion stating that "[f]or the foregoing reasons, the opinion of the Board vacating in part and remanding for additional findings is affirmed." Id. No one appealed this opinion to the Supreme Court, nor filed a petition for rehearing or for modification.
Following the opinion becoming final, the Board then issued an order remanding the claim to the ALJ "for further determination in accordance with the provisions of the decision of the Court of Appeals." (R. at 519). The ALJ then entered an amended opinion, order, and award on remand (without taking additional evidence) in which Piper was awarded PPD benefits based upon a 20% impairment rating. The ALJ noted the Board's directions that on remand she could not rely on the "vague language" of Dr. Burkett in determining an impairment rating for the May 1, 2014 work injury but instead had to rely on one of the three impairment ratings in the record. (R. at 521). In arriving at the 20% impairment rating due to the May 1, 2014 work injury, the ALJ cited to the opinions of both Dr. Butler and Dr. Best that Piper had a "total whole person impairment of 20% based on the herniation and resulting surgery" and found that "[t]he medical evidence differs with regard to the extent of any pre-existing "active" condition." (ALJ amended opinion at *11).
The ALJ then found that Armstrong failed to meet its burden of proving an active pre-existing condition, explaining that "[a]lthough the treatment records document a pre-existing symptomatic low back condition, Armstrong has failed to persuade the ALJ that Piper's pre-existing condition was impairment ratable prior to the May 1, 2014 injury." (Id. at *12) (emphasis added). The ALJ then referenced the medical records of Dr. Rasheed and Dr. Nguyen documenting Piper's "complaints of low back pain radiating into the hip and leg" in 2013 and the medical treatment he received, and noted that Piper continued to do strenuous work as a roof bolter while receiving treatment, with his work including "heavy lifting, bending, twisting, turning, squatting, crawling and pulling." (Id.) As Armstrong points out, the ALJ's prior findings 1) concerning Piper's taking pain medications and muscle relaxers at the time of his work injury and 2) his first appointment after injury being a previously scheduled pain management appointment were omitted.
Noting Armstrong's reliance upon Dr. Best's assigned impairment rating for the pre-existing condition, the ALJ explained how she did not find this persuasive:
Armstrong relies on the pre-existing impairment and opinion [sic] of Dr. Best to establish Piper had an active pre-existing condition. The ALJ finds Dr. Best's impairment and opinion [sic] regarding the pre-existing condition less than credible. Dr. Best assigns 13% of his total 20% impairment to the pre-existing condition, but his opinion on whether the condition is due to a pre-existing active condition or the work related condition is not definite. Dr. Best says the disc extrusions at L2/3 and L4/5 are pre-existing conditions. Although he assigns an
impairment rating for the pre-existing condition, he specifically states the entire 2013 treatment records would help definitively determine the status of the pre-existing condition and determine whether there was a pre-existing active medical condition. He further states that whether this is a work-related condition depends on the findings from the 2013 treatment. It is puzzling how Dr. Best makes any apportionment to the work injury or pre-existing condition when he clearly indicates he needs more information to make such determinations.(Id. at *13) (emphasis original). The Board affirmed upon Armstrong's appeal, summarizing Armstrong's arguments as follows:
On appeal, Armstrong argues the ALJ erred by reversing her prior finding in the November 27, 2017 Opinion, Order and Award that Piper has a pre-existing active low back condition. Armstrong also argues the ALJ erred by omitting from the amended opinion two findings of fact contained within the original opinion. Because the ALJ followed the directives of the Court of Appeals, acted within her discretion, and the evidence does not compel a contrary result, we affirm.(Board's Aug. 9, 2019 opinion at *2). It noted the Court of Appeals opinion affirming its prior opinion, which "vacated the award of PPD benefits and remanded for additional findings" (Id. at *13) and then discussed how a decision being vacated meant that the earlier decision was no longer binding, and the decision-maker was free to make a new decision (Id. at *14-15). It then discussed the Court of Appeals opinion and identified what the ALJ could and must properly do upon remand:
This Board's opinion vacating in part and remanding for additional findings was affirmed by the Kentucky Court of Appeals, thereby "annulling or setting aside" the ALJ's decision. The Court found the Board correctly held the ALJ erred as a matter of law in relying on Dr. Burkett's statement and did not constitute adequate evidence to support the impairment finding. The Court declined to direct the ALJ to rely upon Dr. Best's 7% pre-existing impairment rating. Rather, the Court noted the ALJ's reservations concerning Dr. Best's opinion and that the ALJ, on remand, could possibly find when considering the evidence that Armstrong did not meet its burden of proving a pre-existing active condition, which must "be symptomatic and impairment ratable" pursuant to the AMA Guidelines immediately prior to the occurrence of the work-related injury. Therefore, the ALJ was required to render a decision based upon Finley v. DBM Technology, supra, without relying on Dr. Burkett's statement. Since the ALJ's award of PPD benefits was vacated, the ALJ was not bound by her previous determinations.(Id. at *16). Following discussion of the ALJ's role as factfinder and the Board's task on appeals and the burden of proof regarding pre-existing active conditions, the Board stated:
It appears undisputed that Piper's low back condition warrants a 20% impairment rating and he suffered from a symptomatic low back condition prior to the May 1, 2014 work injury. The issue is whether Piper's pre-existing condition was impairment ratable pursuant to the AMA Guides immediately prior to the
work injury. On remand, the ALJ acted within the discretion afforded to her, and issued a new decision. As noted above, the ALJ could not rely upon Dr. Burkett's statement, "80% exacerbation of preexisting condition" in assessing Piper's pre-existing impairment. The ALJ explained why she found Dr. Best's opinion regarding this issue questionable and ultimately unpersuasive. Therefore, although Piper had a pre-existing low back condition, the ALJ found Armstrong failed to satisfy its burden of proving Piper had an active pre-existing condition because it failed to prove the condition was impairment ratable prior to May 1, 2014. The ALJ performed the appropriate analysis, and rendered a decision based upon the evidence, and a contrary result is not compelled. The ALJ did not act outside the discretion afforded to her. We find no error in this exercise of discretion, and the ALJ's decision is affirmed.(Id. at *18).
We likewise find the alleged error by the ALJ in omitting the two previous findings of fact from the Opinion on remand is meritless, and at most harmless, since they do not address whether Piper's pre-existing condition was impairment ratable prior to May 1, 2014.
Prior to Armstrong's filing its appeal to the Board, both parties filed petitions for reconsideration. The ALJ corrected some other errors pointed out in these petitions in an order, but rejected the same type of substantive arguments Armstrong made in its petition for review, stating that "[t]he ALJ found the opinion of Dr. Best regarding pre-existing impairment not credible and that Armstrong failed to prove the pre-existing condition was impairment ratable." (R. at 556).
STANDARD OF REVIEW
"A reviewing court will only reverse the Board when it has overlooked or misconstrued controlling law or so flagrantly erred in evaluating the evidence that it has caused gross injustice." Jones v. Aerotek Staffing, 303 S.W.3d 488, 490-91 (Ky. App. 2010) (citing Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992)).
ANALYSIS
Armstrong now challenges the Board's opinion affirming the ALJ's amended opinion, order, and award on remand, arguing: 1) "the board committed reversible error by concluding its prior opinion vacating only part of the ALJ's original opinion rendered the entire opinion a legal nullity" and 2) "the board committed reversible error by failing to redress the ALJ's clear error of reversing the prior finding of fact and conclusion of law that Piper suffered from active impairment." Contrary to Armstrong's arguments, we find no reversible error in the Board's opinion.
No Error in Board's Treatment of Effect of Partially Vacated ALJ Opinion
Armstrong contends that the Board misconstrued the law and "committed reversible error by concluding its prior opinion vacating only part of the ALJ's opinion rendered the entire opinion a legal nullity." It contends that the Board erroneously relied upon Hampton v. Flav-O-Rich Dairies, 489 S.W.3d 230 (Ky. 2016), and Commonwealth, Uninsured Employer's Fund v. Werner, No. 2014-CA-001154-WC, 2015 WL 2226274 (Ky. App. Apr. 10, 2015), to treat the original ALJ opinion as "a legal nullity" essentially allowing the ALJ to make a new decision and not be bound by the old decision since the ALJ opinions were totally vacated in Hampton and Werner in contrast to the Board's vacating in part the ALJ's original opinion here. (Appellant's brief, p. 15, citing Board's Aug. 9, 2019 opinion at *14-15). Despite the difference in caption, however, we note that the Board vacated the PPD award with directions to make a new PPD award in its earlier opinion vacating in part and remanding. Even though the Board did not explicitly vacate the entire opinion of the ALJ, it made clear that the prior award of PPD benefits did not stand and that the ALJ could make new findings (specifically including a new impairment rating due to the work injury) and a new award of PPD benefits. Thus, we find no error in its citing Hampton or Werner to discuss the effect of having vacated the PPD award.
While Armstrong contends that the Board must have intended something by stating that it was vacating in part, we conclude the opinion, when read as a whole, shows that the Board vacated in part so that other matters not at issue in the appeal (such as TTD benefits) would stand.
We do not agree with Armstrong's argument that the Board's opinion vacating in part and remanding meant that the ALJ was vacating only the 16% impairment rating such that every other finding of fact and conclusion of law not explicitly mentioned as vacated had to remain unchanged on remand. The Board did not state in its opinion vacating in part and remanding that only the 16% impairment rating must be vacated and that no other finding of fact or conclusion of law could be changed. Rather, the Board vacated the PPD award (as a whole) and remanded for additional findings, a new determination of an impairment rating subject to the directive that the impairment rating had to be one from the three impairment ratings of record from a physician, and a new award of income benefits. If the Board did not intend for the ALJ to be able to reconsider whether there was an active pre-existing impairment in determining impairment rating on remand, it did not say so in its prior opinion. Furthermore, in our earlier opinion, we explicitly stated that on remand the ALJ might find that Armstrong failed to meet its burden of proving an active pre-existing impairment that was both symptomatic and impairment ratable. Armstrong having taken no steps to have this Court remove or modify this statement, the Board and ALJ could properly rely on this Court's prior opinion to allow for the possibility of not finding an active pre-existing impairment on remand.
See Kentucky Rules of Civil Procedure (CR) 76.32(1)(c), providing that:
When it is desired to point out and have corrected any inaccuracies in statements of law or fact contained in an opinion of the court, or to extend the opinion to cover matters in issue not discussed therein, and the result reached in the opinion is not questioned, a party may request a modification or extension.
See Buckley v. Wilson, 177 S.W.3d 778, 781 (Ky. 2005) (citation omitted) ("The court to which the case is remanded is without power to entertain objections or make modifications in the appellate court decision. It necessarily follows, therefore, that if a party is aggrieved by an adverse appellate determination, his remedy is in an appellate court at the time the adverse decision is rendered.").
Change in Finding Regarding Active Pre-existing Impairment Authorized Under Facts and History Regarding this Claim
Armstrong contends that the ALJ improperly changed its findings regarding the existence of a pre-existing active impairment on remand, citing Bowerman v. Black Equipment Co., 297 S.W.3d 858, 868 (Ky. App. 2009), for the proposition that an ALJ cannot properly change "factual findings that have been fully and fairly adjudicated by an ALJ" in the absence of "newly discovered evidence, fraud, or mistake." However, we agree with the Board that as the award of PPD benefits was vacated with directions to make a new award (including specifically determining a new impairment rating and how much was attributable to work injury vs. pre-existing condition), the ALJ did not improperly change course as the Board and Court of Appeals indicated she was free to reconsider the evidence and re-evaluate the merits of the PPD claim (including how much was due to a pre-existing condition). As noted by the Board, an argument that an ALJ had improperly changed its findings under Bowerman for entering an award for workers' compensation benefits after earlier finding no basis for any claim was rejected in Werner because the ALJ's earlier decision to not award benefits had been vacated and the ALJ was thus free to make a new and different decision. Considering the directions given by both the Board and this Court, we discern nothing improper in the ALJ's finding on remand that Armstrong had failed to meet its burden of showing an active pre-existing impairment, which would have to be impairment ratable as well as symptomatic.
We further note Armstrong's argument that as Piper never challenged the ALJ's prior finding of an active pre-existing impairment, that finding was now the "law of the case" and should govern all further proceedings regarding Piper's claim. However, this Court's prior opinion clearly stated to the contrary that the ALJ might find on remand that Armstrong failed to meet its burden of proving an active pre-existing impairment. Despite Armstrong's later arguments to the ALJ, the Board, and this Court that this statement from our prior opinion was dictum and incorrect, our prior opinion had already become final at that point and thus, it was now the "law of the case" and governed further proceedings.
Armstrong cites Berry v. Cedar Lake Park Place, No. 2014-SC-000476-WC, 2015 WL 3637481 (Ky. June 11, 2015), to argue that the ALJ's finding of an active pre-existing impairment in the original opinion was now the law of the case due to Piper never having formally challenged the finding of active pre-existing impairment. However, Berry did not address the situation here where a party challenges the Board's affirming a finding made by an ALJ as explicitly permitted by a final appellate court decision.
Armstrong now claims that the Court of Appeals lacked the authority to overturn the ALJ's prior finding of fact of active pre-existing impairment in the prior opinion, citing Wells v. Ford, 714 S.W.2d 481, 484 (Ky. 1986). However, Armstrong did not take steps to challenge our statement that the ALJ might not find an active pre-existing impairment on remand before our prior opinion became final.
See Buckley, 177 S.W.3d at 781 (citations and internal quotation marks omitted) ("The law-of-the-case doctrine describes a principle which requires obedience to appellate court decisions in all subsequent stages of the litigation. Thus, on remand, a trial court must strictly follow the mandate given by an appellate court in that case. The court to which the case is remanded is without power to entertain objections or make modifications in the appellate court decision. It necessarily follows, therefore, that if a party is aggrieved by an adverse appellate determination, his remedy is in an appellate court at the time the adverse decision is rendered."). See also Brooks v. Lexington-Fayette Urban County Housing Authority, 244 S.W.3d 747, 751 (Ky. App. 2007) (citation and internal quotation marks omitted) ("The law of the case doctrine is an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been."). --------
Armstrong also claims error in the ALJ's omission of findings concerning Piper's taking pain medications and muscle relaxers prior to the work injury and concerning Piper's first post-injury appointment being a previously scheduled one for pain management, findings which Armstrong believes indicated prior active impairment. However, we agree with the Board that omission of these findings was of little consequence as they did not directly address the salient issue of whether Piper's prior condition was impairment ratable.
In sum, we find no error in the Board's opinion affirming the ALJ's amended opinion, order, and award on remand.
ALL CONCUR. BRIEF FOR APPELLANT: Will E. Messer
Lexington, Kentucky BRIEF FOR APPELLEE: Ronald K. Bruce
Greenville, Kentucky