May 12, 2017 201300503

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  May 12, 2017



CLAIM NO. 201300503



GREGORY JEFFERSON                              PETITIONER

















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BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 


ALVEY, Chairman.   Gregory Jefferson (“Jefferson”) appeals from the Opinion, Award and Order rendered December 19, 2016 by Hon. Robert L. Swisher, Chief Administrative Law Judge (“CALJ”).  The CALJ awarded temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits based upon a 13% impairment rating, enhanced pursuant to KRS 342.730(1)(c)1, and medical benefits for work-related right shoulder and knee injuries sustained in a slip and fall accident on October 8, 2012.  The 13% impairment rating reflects 8% for the right shoulder injury, and 5% for the right knee injury.  Jefferson also seeks review of the February 9, 2017 order denying his petition for reconsideration.

          On appeal, Jefferson argues the ALJ erred in finding only a 5% impairment rating attributable to the right knee injury rather than 20%.  Because substantial evidence supports the ALJ’s determination and no contrary result is compelled, we affirm. 

          Jefferson filed a Form 101 on April 1, 2013 alleging he injured his right shoulder, hand and knee when he slipped and fell while exiting the restroom at work on October 8, 2012.  Jefferson was a production worker for Dakkota Integrated Systems, LLC (“Dakkota”) which manufactures dashboards for Ford trucks.  He is a high school graduate with no specialized or vocational training. Jefferson began working for Dakkota in 2006.  His work history consists of employment as a prep cook, cashier, convenience store manager, mixer at a cookie company, bodyguard and production worker. 

          During the course of the claim, Dakkota filed a Form 112 Medical Dispute challenging the request to perform right shoulder surgery by Dr. Akbar Nawab.  In support of the medical dispute, Dakkota filed the peer review report by Dr. David Trotter who opined the proposed right shoulder surgery, requested lab work and an EKG were unreasonable and unnecessary.  Dakkota later agreed to pay for the surgery.

          Jefferson testified by deposition on August 27, 2015, and at the hearing held October 20, 2016.  He is a resident of Louisville, Kentucky.  On October 8, 2012, he had gone to the restroom at work at the end of his shift to wash his hands.  He slipped and fell as he was throwing away a paper towel.  He fell forward striking his right knee first, then his hands hit the floor.  He was taken to the safety room, and then he drove home despite low back and right wrist pain.  His right knee was also swollen. 

          The next day Dakkota sent Jefferson to OPS Newberg[1] for treatment.  X-rays were taken at OPS, medication was prescribed, and restrictions were imposed.  Jefferson was placed on light duty, and he never returned to his regular job.  Jefferson continued to perform his light duty job, working forty hours per week until he underwent surgery for his right knee on March 16, 2014.  He had right shoulder surgery on March 11, 2015. He worked no overtime while on light duty.  He testified he worked an average of twelve hours of overtime per week prior to the accident.    

          Jefferson had previously sustained a right knee injury while playing basketball in the eighth or ninth grade.  He had surgery in 1979 or 1980, but returned to play varsity basketball.  He also sustained a right knee injury at work in 2007.  At that time, he saw Dr. Donald McAllister, who practices with Dr. Ernest Eggers.  Jefferson only missed a couple of days of work for the 2007 injury and took anti-inflammatory medication.  Jefferson continued to work his job at Dakkota after the 2007 accident without restrictions or limitations.

          Jefferson’s right wrist problems had resolved by the time of his deposition.  At that time, he testified he continued to take Advil or Aleve for his right shoulder and knee problems. 

          Prior to the accident, Jefferson worked on the production line, which consisted of approximately thirty different jobs.  He rotated between some of the jobs throughout the day.  All jobs required continuous standing, which he testified he is no longer able to do, and required the repetitive use of his hands.  Jefferson testified at the hearing he can walk only thirty to forty yards at a time, and can only sit for approximately twenty minutes at a time.  He is unable to lift a gallon of milk with his right arm.  He has difficulty sleeping due to his shoulder injury, and lies down several times per day. He does not believe he is able to perform the light duty job he held prior to the knee surgery. He was awarded Social Security disability benefits.

          In support of the Form 101, Jefferson attached records from OPS for treatment on six occasions from October 16, 2012 through November 20, 2012.  He was diagnosed with a sprain/strain of the right shoulder, contused right hand, and contused right knee.  He was allowed to return to seated jobs, with no lifting above the right shoulder, and no lifting greater than five pounds with the right arm.  He also submitted the October 10, 2012 note from Frazier Rehabilitation.  He additionally submitted the December 17, 2012 record of Dr. Eggers, which noted his right shoulder pain, and the need for a right total knee replacement.

          Jefferson subsequently filed multiple office records from Dr. Eggers, many of which were illegible.  Included in those records is the April 23, 2013 statement in which Dr. Eggers opined Jefferson’s upcoming knee replacement surgery was due to unrelated degenerative arthritis, and not associated with a work injury.  In his note dated November 26, 2012, Dr. Eggers stated Jefferson is 6’ 4” and weighs 394 pounds.  He noted the slip and fall incident, after which Jefferson experienced right shoulder pain.  He also noted Jefferson had experienced right knee problems for years.

          Jefferson filed multiple reports from Dr. Warren Bilkey.  From an examination on July 8, 2012, Dr. Bilkey noted Jefferson’s complaints of right knee swelling, pain and locking.  He also noted his right shoulder problems worsened with activity.  He noted Jefferson developed right knee problems while playing basketball in high school, and had a right knee arthroscopy in 1980.  Jefferson also had right knee swelling prior to the October 8, 2012 work injury which required treatment with anti-inflammatory medication and periodic draining.  Dr. Bilkey diagnosed a work-related right shoulder strain, rotator cuff tear versus tendinitis, due to the October 8, 2012 accident.  He also diagnosed a right knee contusion superimposed upon significant degenerative arthritis.  He opined Jefferson needed a right knee replacement, and physical therapy for the right shoulder.  He stated Jefferson had not reached maximum medical improvement (“MMI”) for either condition.  He recommended weight lifting restrictions for the right upper extremity with no overhead lifting.  Although Dr. Bilkey determined Jefferson had not reached MMI, he stated most likely the right shoulder condition would result in a 5% impairment rating pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”).  He stated the right knee would most likely qualify for a 20% impairment rating pursuant to the AMA Guides, attributing only a fourth to the October 8, 2012 work-related injury, with the remainder due to his degenerative arthritis.

          In a report dated January 27, 2016, Dr. Bilkey stated Jefferson had reached MMI for both the right shoulder and knee injuries.  He assessed an 8% impairment for the right shoulder.  He assessed a 20% impairment for the right knee, of which only 5% was due to the work injury.  The combined impairment rating he assessed for the work-related injuries was 13% pursuant to the AMA Guides.  Dr. Bilkey assessed restrictions of no lifting greater than fifteen pounds with the right upper extremity, and to avoid prolonged standing for more than twenty minutes. 

          Jefferson also filed the February 27, 2013 report of Dr. Michael Best who examined him at Dakkota’s request.  Dr. Best determined Jefferson had not reached MMI and had returned to light seated duties.  He diagnosed a right shoulder strain/sprain, contusion of the right hand, and contusion of the right knee.  He stated Jefferson was at end-stage degenerative arthritis of the right knee, “therefore, the work injury does appear to have resulted in the need for surgical intervention.”  He stated an impairment rating could be assessed after Jefferson reached MMI from the total knee replacement.

          Jefferson also filed the note of George Sickles, P.T., D.P.T, dated October 1, 2015.  This note reflects Jefferson’s decreased shoulder and knee ranges of motion.  Six additional weeks of physical therapy was recommended.

          Dakkota filed numerous records from Dr. Eggers, including the April 22, 2013 note also filed by Jefferson.  In his November 26, 2012 note, Dr. Eggers noted Jefferson’s chronic right knee pain, and the fact he was at end-stage arthritis.  He opined this might need to be surgically addressed after the proposed shoulder surgery.  He noted the right knee had been problematic for years.  Dakkota also filed records from Dr. McAllister, who practices with Dr. Eggers, for treatment he administered for Jefferson’s right knee in 2007 and 2009.  Dr. McAllister noted Jefferson’s right knee had been problematic for many years.  Those records include a notation of treatment with injections for the right knee prior to the work injury.

          Dr. Robert Jacob examined Jefferson at Dakkota’s request on September 4, 2013.  In his report dated September 24, 2013, he noted Jefferson’s previous right knee surgery in 1979.  He stated Jefferson had a documented history of advanced and end-stage arthritis in the right knee, which preceded his work injuries in 2007 and 2012.  He assessed a 5% impairment rating pursuant to the AMA Guides for the right shoulder.  He opined the right knee condition was pre-existing and active, and was neither exacerbated nor aggravated by his work injury.  He disagreed with the 20% impairment rating for the right knee assessed by Dr. Bilkey.

          Dakkota later filed a supplemental report of Dr. Jacob from an evaluation performed on August 26, 2015.  He noted Jefferson had undergone a right total knee arthroplasty by Dr. Akbar Nawab.  He noted Jefferson’s continued complaints of pain, weakness and limitation of the right shoulder motion.  He found Jefferson had reached MMI from the right knee surgery.  He assessed a 20% impairment rating for the right knee pursuant to the AMA Guides, but this is not due to the work injury.  He additionally noted Jefferson had reached MMI from his right shoulder surgery, and continued to complain of pain on range of motion.  He assessed a 3% impairment rating for the shoulder pursuant to the AMA Guides.  He recommended restrictions of no constant or overhead use of the right shoulder, no lifting of over twenty pounds above the shoulder, no squatting, kneeling or climbing of ladders or stairs repetitively.

          In a report dated January 27, 2016, Dr. Jacob stated Jefferson qualified for a 15% impairment rating for his right knee pursuant to the AMA Guides.  He stated his opinion of an impairment rating of 3% for the right shoulder remains unchanged from his previous report.  In a report dated March 23, 2016, Dr. Jacob stated he had reviewed the report of a functional capacity evaluation (“FCE”) performed on February 16, 2016.  He stated the FCE was unreliable, and did not reflect Jefferson’s true range of motion.

          Dakkota also filed Dr. Nawab’s January 4, 2016 treatment note.  Dr. Nawab stated Jefferson needs yearly follow up visits for his right knee after the total arthroplasty.  He also stated Jefferson needs an FCE for the right shoulder. 

          Dakkota additionally filed treatment records from Dr. Mark Williams, Jefferson’s family physician, for treatment of the right knee from November 25, 2008 through January 17, 2012.  Those records reflect ongoing treatment for right knee swelling and pain, including right knee injections.

          A benefit review conference (“BRC”) was held on September 11, 2013 before Hon. R. Scott Borders, Administrative Law Judge, to whom the claim was initially assigned.  The claim was later re-assigned to the CALJ.  The BRC Order and Memorandum reflects the issues at that time included whether Jefferson retains the capacity to return to the type of work performed on the date of the injury, benefits per KRS 342.730, work-relatedness/causation, unpaid/ contested medical expenses, injury as defined by the Act, exclusions for pre-existing disability/impairment, and the claim was bifurcated to address the work-relatedness causation of the right knee condition.  An agreed order was entered on September 24, 2013 indicating Dakkota would pay TTD benefits and for the surgery.

          Another BRC was held on September 12, 2016.  The BRC Order and Memorandum reflects the remaining issues included benefits pursuant to KRS 342.730, exclusion for pre-existing disability/impairment, and TTD (including underpayment as to duration).

          In the December 19, 2016 Opinion, Award and Order, the CALJ found Jefferson is permanently partially disabled.  He found Jefferson has an 8% impairment for the right shoulder, and a 5% impairment for the right knee due to the work-related injury.  He based this determination upon the opinion of Dr. Bilkey who found three-fourths of the 20% impairment he assessed for the knee was not due to the work injury.  The CALJ found Jefferson does not retain the physical capacity to return to the job he performed on the date of the injury, and additionally found the multiplier contained in KRS 342.730(1)(c)1 is applicable.  He awarded TTD benefits at the rate of $428.73 per week from March 8, 2014 through January 20, 2016, and PPD benefits at the rate of $167.20 per week for 425 weeks.  The CALJ also awarded medical benefits pursuant to KRS 342.020.  Regarding the applicable impairment ratings, the CALJ specifically found as follows:

In order to quality for an award of permanent disability benefits, therefore, whether total or partial, plaintiff must first establish that he has a permanent disability rating. “Permanent disability rating” means the permanent impairment rating selected by an administrative law judge multiplied by the statutory grid factor. KRS 342.0011(36). In this matter plaintiff alleges injuries to both his right knee and right shoulder. Drs. Bilkey and Jacob have offered expert medical opinions with respect to the extent to which plaintiff retains any permanent functional impairment ratable under the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition, by virtue of his stipulated work-related injuries. Dr. Bilkey assigned a 20% impairment rating with respect to plaintiff’s right knee as a result of the total right knee arthroplasty which he attributed to the work-related aggravation of plaintiff’s pre-existing degenerative joint disease but concluded that one-fourth of the 20% impairment rating, or 5%, is attributable to the work event with the remaining three-fourths being attributable to what he considers to be a pre-existing active degenerative condition. He also assigned an 8% whole person impairment rating with respect to plaintiff’s post-surgical shoulder condition. Dr. Jacob, on the other hand, does not believe that the work event resulted in anything more than a contusion to the right knee, and that while he agrees that plaintiff’s current impairment rating, based on knee replacement surgery is 15%, he is of the further opinion that none of that impairment is attributable to the work injury but, instead, arises by virtue of plaintiff’s pre-existing active degenerative joint disease. Jacob further assigned a 3% impairment rating with respect to the right shoulder.


Having carefully considered the evidence in the record, the undersigned is ultimately persuaded that Dr. Bilkey has offered a far more persuasive and probative opinion and assessment of impairment than Dr. Jacob. With respect to the right knee injury, it is undisputed that plaintiff had severe pre-existing degenerative changes in the right knee leading up to October 8, 2012. In fact, he acknowledged receiving treatment for his right knee including a distant surgery and more recent injection and fluid withdrawal. In January of 2012, a mere nine months prior to the work injury, plaintiff was seen by his primary care physician, Dr. Williams, with complaints of a painful swollen right knee for which he received an injection and fluid was drained from the knee. The medical records further reflect that plaintiff had presented over the course of time with an antalgic gait. Plaintiff’s size is also significant at almost 400 pounds. While the slip and fall of October 8, 2012 might have been the straw that broke the proverbial camel’s back, the medical evidence in the record establishes to the satisfaction of the undersigned that the right knee was significantly weakened and actively symptomatic prior to the work event. Dr. Bilkey’s assessment that plaintiff had a pre-existing 15% impairment rating immediately prior to the work incident based on the “bone-on-bone” arthritic condition in his knee is both probative and highly persuasive. Accordingly, the undersigned finds that as a result of the work injury resulting in the arousal and worsening of a pre-existing active degenerative condition, plaintiff retains a 5% whole person impairment rating. The CALJ further finds, in reliance upon the report of Dr. Bilkey, that plaintiff retains an 8% whole person impairment rating with respect to his right shoulder. The undersigned acknowledges that Dr. Jacob is less impressed with plaintiff’s right shoulder deficits, but the CALJ finds Dr. Bilkey’s report and assessment simply more credible and persuasive in this regard. Accordingly, combining the impairment ratings attributable to the right knee and right shoulder injuries, the undersigned finds that plaintiff retains a 13% whole person impairment rating as a result of the stipulated work injury of October 8, 2012. A 13% impairment rating results in a 13% permanent disability rating as well.


          Jefferson filed a petition for reconsideration on January 3, 2017 arguing as he does on appeal, the CALJ erred in awarding only 5% impairment rather than 20% for the right knee condition.  Jefferson argued, “While it is clear that the Claimant had a pre-existing active impairment, there was no evidence to reflect that he had a pre-existing active disability.”  In his order denying the petition for reconsideration, the CALJ held as follows:

This matter is before the undersigned Chief Administrative Law Judge on plaintiff’s petition for reconsideration of the Opinion, Award and Order of December 19, 2016. Therein, plaintiff contends that the undersigned erred not awarding a 20% impairment as it relates to plaintiff’s knee injury (and a total of 28% considering 8% for the shoulder). The defendant/employer has filed a response and objection arguing that plaintiff points to no patent error and is simply re-arguing the merits of the claim.


Having reviewed plaintiff’s petition for reconsideration, the undersigned notes that it is simply an impermissible re-argument of the merits of the claim. On petition for reconsideration, an administrative law judge is precluded from changing findings of fact. Garrett Mining Co. v. Nye, 122 S.W.3d 513 (Ky. 2003). Plaintiff having failed to point to any patent errors appearing on the face of the Opinion, Award and Order of December 19, 2016, the petition for reconsideration is OVERRULED.



          On appeal, Jefferson again argues the CALJ erred in finding him entitled to a 5% impairment rating for the right knee injury.  As the claimant in a workers’ compensation proceeding, Jefferson had the burden of proving each of the essential elements of his cause of action.  Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Because Jefferson was unsuccessful in his burden regarding the award of PPD benefits for his arthritic knee condition based upon a 20% impairment rating rather than a 5% impairment rating, the question on appeal is whether the evidence compels a different result.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).

          Compelling evidence” is defined as evidence that is so overwhelming, no reasonable person could reach the same conclusion as the ALJ.  REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985).  The function of the Board in reviewing the ALJ’s decision is limited to a determination of whether the findings made by the ALJ are so unreasonable under the evidence they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  Similarly, the ALJ has the sole authority to judge all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  An ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  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 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Id.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support his decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

          The Board, as an appellate tribunal, may not usurp an ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences could otherwise have been drawn from the record.  Whittaker v. Rowland, supra.  So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal.  Special Fund v. Francis, supra.

     On review, we find Jefferson’s appeal to be nothing more than a re-argument of the evidence before the CALJ.  After careful review, we find the CALJ accurately summarized the evidence and had a complete understanding of the issues before him.  It is undisputed Jefferson had experienced significant right knee problems for years prior to the October 8, 2012 work-related accident.  This is evidenced by the records of Drs. McAllister and Williams, and the CALJ accurately summarized Jefferson’s medical history. 

     Both Drs. Jacob and Eggers opined Jefferson’s need for right total knee replacement surgery was not work-related.  They both stated the surgery was necessitated by the unrelated end-stage degenerative arthritis.  Dr. Bilkey acknowledged Jefferson’s significant pre-existing right knee arthritis, and reflected this by apportioning three-fourths of the 20% of the impairment rating to that condition, and only a fourth, or 5% impairment to the work-related injury.  This was acknowledged by the CALJ who awarded PPD benefits accordingly.  This determination is supported by substantial evidence and will not be disturbed.

     The CALJ correctly noted the employer bears the burden of proving an active, pre-existing condition.  To be characterized as active, it must be symptomatic and impairment ratable pursuant to the AMA Guides immediately prior to the occurrence of the work-related injury.  Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007).  The CALJ made his determination accordingly and clearly outlined the basis for doing so.

     The ALJ, as fact-finder, has full discretion to determine the physician or physicians upon which he relies.  If “the physicians in a case genuinely express medically sound, but differing opinions as to the severity of a claimant's injury, the ALJ has the discretion to choose which physician's opinion to believe.” Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149, 153 (Ky. App. 2006).  Here, the CALJ chose to rely upon the opinions of Dr. Bilkey, including his apportionment of the impairment rating, and he provided his reasoning for doing so.  It was within the CALJ’s discretion to do so, and his determination will not be disturbed.

     Accordingly, the December 19, 2016 decision and the February 9, 2017 order on petition for reconsideration by Hon. Robert L. Swisher, Chief Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.





















[1] The records do not further explain the acronym OPS.