June 30, 2017 201491750

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  June 30, 2017



CLAIM NO. 201491750



ORMSCO, INC.                                   PETITIONER




















                       * * * * * *



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


ALVEY, Chairman.   ORMSCO, Inc. (“ORMSCO”) appeals from the February 1, 2017 Opinion, Award and Order rendered by Hon. John B. Coleman, Administrative Law Judge (“ALJ”), awarding temporary total disability (“TTD”) benefits, permanent partial disability (“PPD”) benefits, enhanced by the two-multiplier pursuant to KRS 342.730(1)(c)2, and medical benefits to Gary Blackburn (“Blackburn”) for a compression fracture injury to the L3 vertebra he sustained at work on March 7, 2014.  ORMSCO also appeals from the March 1, 2017 order denying its petition for reconsideration. 

          On appeal, ORMSCO argues the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) require an impairment rating to be assessed based upon a condition as it exists when an injured worker reaches maximum medical improvement (“MMI”), not upon signs or symptoms prior to that time.  ORMSCO also argues the two independent medical evaluation reports submitted by Blackburn do not constitute substantial evidence supporting the impairment rating adopted by the ALJ.  It is apparent the impairment rating adopted by the ALJ in this case is based upon Blackburn’s condition both prior to reaching MMI, and in fact prior to undergoing kyphoplasty surgery, and includes a rating for a condition which is not work-related.  Therefore, the ALJ’s decision is vacated and remanded for a determination of impairment and commensurate PPD benefits based upon Blackburn’s condition once MMI was reached based solely upon the effects of the work-related injury, and in accordance with the evidence in the record. 

     Blackburn filed a Form 101 on November 16, 2015 alleging he sustained a back injury on March 7, 2014 as he was pulling on a trailer.  At that time, he experienced a pop, and felt pain in his back. 

     Blackburn testified by deposition on January 15, 2016, and again at the hearing held December 7, 2016.  Blackburn is a resident of East Bernstadt, Laurel County, Kentucky.  He was born on April 8, 1964.  He is a high school graduate with vocational training in small engine repair.  He worked as a shift supervisor for a pie company from 1982 to 1996.  From 1996 until 2009, he was self-employed performing construction work, welding, plumbing, dry walling, masonry and carpentry.  In 2009, he was hired by ORMSCO to repair lawn mowers, chainsaws, small engines, weed eaters, and other equipment.  ORMSCO is an equipment rental business.  He testified the heaviest part of his job with ORMSCO involved loading and moving equipment, including riding mowers, floor grinders, and trowel machines.  He earned $8.25 per hour prior to the date of the accident.  When he last worked for ORMSCO, he earned $11.00 per hour.

     On March 7, 2014, a trailer Blackburn was using to retrieve a lawn mower became stuck.  As he manually attempted to free it, he injured his back.  He testified he experienced a pop and pain in his back.  He delivered the trailer to the ORMSCO lot, and then drove himself to the emergency room at St. Joseph Hospital in London, Kentucky.  When he arrived at the emergency room, he complained of pain in the middle of the back above the belt line, along with tingling and numbness in his left leg and toes.  Dr. Jean Page performed kyphoplasty surgery to repair the compression fracture at L3.

     In addition to Dr. Page, Blackburn treated with Dr. Shelly Stanko, his primary care physician, and also underwent physical therapy.  He was released to return to work with a back brace on June 24, 2014.  He testified he wore the brace while working, and avoided lifting over twenty-five pounds.  However, he continued to experience minor back pain for which he was prescribed Hydrocodone 7.5 mg, and Flexeril, which he still takes.  He also had continued tingling in his left leg into the big toe.  Blackburn no longer works for ORMSCO.  At his deposition, Blackburn testified he could perform most of his job duties, although his condition was worsening.

     Blackburn last worked for ORMSCO on July 15, 2016.  He was terminated, and did not receive any unemployment benefits.  He continues to have left leg and back pain.  At the hearing, he testified he can hardly walk, and suffers from some mental difficulty due to problems associated with his back condition.  He additionally testified he does not believe he is able to perform the duties required of his job at ORMSCO.  He alleged he sustained a second injury on June 12, 2015 for which he treated at St. Joseph Primary Care on June 15, 2015. 

     In support of his claim, Blackburn filed records reflecting treatment at the St. Joseph Hospital from March 7, 2014 through March 9, 2014.  He was diagnosed with an acute L3 compression fracture, back pain and hypertension.  The records reflect Blackburn experienced a pop in his back with associated lower extremity numbness and tingling after attempting to lift a trailer from a truck.  The surgical pathological report reflects he experienced a burst fracture at L3.

     Blackburn also filed records of his treatment with Dr. Page from March 8, 2014 through September 18, 2014.  In his March 8, 2014 record, Dr. Page noted Blackburn underwent reduction and internal fixation by kyphoplasty, and the fracture was reduced almost ninety percent.  Prior to the surgery, Blackburn had experienced approximately 50% loss of the vertebral height of the L3.  Dr. Page later stated Blackburn had a good outcome from the surgery and he was released to work with a brace.  On September 18, 2014, Dr. Page released Blackburn to return to work with a brace and to only return as needed.

     Blackburn filed the Form 107-I report of Dr. Arthur Hughes who evaluated him on December 15, 2015.  Dr. Hughes noted the March 7, 2014 injury.  Blackburn advised the L3 kyphoplasty helped, but he continued to have pain.  He returned to work, but continued to take medication for his condition.  Blackburn also complained of a severe increase in back pain when he attempted to unload a piece of equipment from a trailer in June 2015.  Dr. Hughes diagnosed Blackburn as status post kyphoplasty for the L3 compression fracture, along with persistent low back pain and left lower radicular pain, all due to the work injury.  He assessed a 13% impairment rating pursuant to the AMA Guides for the compression fracture, although this was based upon an x-ray taken prior to the kyphoplasty.  Dr. Hughes stated Blackburn was not at MMI, but could be considered as such if he had no additional treatment.  He stated Blackburn should be able to stand or sit as needed, and could engage in light lifting, but not in bending from the waist.  He also restricted Blackburn from repetitive twisting of the low back.

     Dr. Hughes also testified by deposition on March 2, 2106.  Dr. Hughes admitted an individual has to be at MMI in order to assess an impairment rating pursuant to the AMA Guides.  He also stated Blackburn’s complaints in the entirety of his left leg were non-anatomic and probably non-organic.  Dr. Hughes stated the 13% impairment rating he assessed was based upon a 50% compression reflected in x-rays taken prior to the kyphoplasty performed by Dr. Page.  Dr. Hughes admitted he did not personally review any radiology films, he relied solely upon the reports from the radiologists.  He also stated it takes approximately six weeks for a compression fracture to heal, and in order to determine what remains of the condition it would be necessary to wait that length of time.  He did not order any x-rays, nor did he review any subsequent films after the kyphoplasty was performed.

     Blackburn also filed the May 29, 2016 consultation record of Dr. Matthew Tutt who examined him at Dr. Stanko’s request.  He noted the L3 compression fracture which was treated with a kyphoplasty.  Blackburn advised him the kyphoplasty provided no pain relief.  He noted Blackburn’s complaints of low back pain.  A lumbar MRI was ordered.  He stated Blackburn’s symptoms were out of proportion to his findings.  Blackburn additionally filed Dr. Tutt’s records from August 15, 2016.  Dr. Tutt stated Blackburn’s changes at L4 are unrelated to the fracture he sustained at the L3 level.

     Blackburn also filed a Form 107-I completed by Dr. Stephen T. Autry as a result of an evaluation on November 9, 2016.  Dr. Autry noted the L3 compression fracture Blackburn sustained while pulling on a trailer for which he had a kyphoplasty.  He noted Blackburn reinjured his back in July 2014 while driving a bobcat and developed progressive left leg pain.  He diagnosed Blackburn with osteoporosis, which is not work-related.  He additionally noted the compression fracture at L3 with kyphoplasty.  He also noted Blackburn has a compression fracture at L4 and rotator cuff tendinitis/ impingement.  He assessed a 13% impairment rating pursuant to the AMA Guides for the compression fractures at L3 and L4, but did not specify the percentage attributable to each.  He also assessed a 7% impairment rating for the rotator cuff condition for a combined impairment of 19%.  He found Blackburn had reached MMI, and does not retain the capacity to return to the type of work performed on the date of the injury.  He restricted Blackburn from repetitive bending, twisting, stooping, crouching and overhead or above shoulder use of his arms.  He also stated Blackburn should not climb, nor lift over twenty pounds on a regular basis.

     In a filing of records, ostensibly of Dr. Gregory D’Angelo, Blackburn submitted notes from numerous medical providers including Dr. Stanko, Jessica Whitaker PA-C, Erin Greer APRN and Kathy Noble PA-C for treatment on various occasions between November 5, 2013 and January 7, 2016.  Those records reflect treatment for hypertension, thoracic spine pain, left hip pain, flu shot, lab studies, earache, sinus congestion, and pain between the shoulders.

     ORMSCO filed the December 14, 2015 report of Dr. Ronald J. Fadel who diagnosed an L3 compression fracture with no radiculopathy.  He noted Blackburn returned to work in September 2014 with a rigid brace and minimal opiates.  Per his review of the treating physician’s records, Blackburn reached MMI on October 2, 2014, at which time he was released from additional treatment with restrictions.  Dr. Fadel reviewed Blackburn’s case for a determination regarding a requested hip MRI.  He found this request was unrelated to the work-related compression fracture at L3, and opined any ongoing complaints may be due to non-work-related conditions.

     ORMSCO also filed records from St. Joseph Hospital including the MRI report from October 23, 2015, which noted the previous kyphoplasty with no acute compression fractures or significant degenerative changes or nerve root compression.  Additional records submitted from St. Joseph Hospital reveal treatment for ear pain/infection in November 2014 and complaints of chronic low back pain and hypertension in December 2014. 

     ORMSCO filed Dr. Page’s office note from July 1, 2014.  Dr. Page stated Blackburn is, “post-kypho after fracture while working.”  He stated Blackburn is capable of working while wearing an LSO brace, and was able to resume full work duties on June 24, 2014.  His note from September 18, 2014 reflects Blackburn was doing well at that time, although he continued to experience back pain with lifting.  On physical examination, Blackburn demonstrated full mobility of the lumbar and thoracic spines.  Dr. Page specifically noted x-rays revealed, “kyphoplasty at the level of L3, no acute compression is noted. Normal disc height is seen.”  On October 2, 2016, Dr. Page noted Blackburn had reached MMI, and his only restrictions were to use a back brace while working.

     Dr. Timothy Kriss evaluated Blackburn at ORMSCO’s request on December 23, 2015.  Dr. Kriss noted Blackburn exhibited signs of factitious pain.  Regarding Blackburn’s diagnosis, Dr. Kriss stated, “Mister Blackburn is status post percutaneous kyphoplasty, reduction and internal fixation treatment for a 20% L3 vertebral body anterior wedge compression fracture.”  He stated the kyphoplasty surgery was successful in restoring the vertebral height.  He reviewed the October 23, 2015 MRI which he stated demonstrated a 10% or less anterior wedge compression.  Based upon the fact the kyphoplasty successfully restored vertebral height, and the reduction is less than 25%, Dr. Kriss assessed only a 5% impairment rating.  He stated Blackburn had reached MMI by October 2, 2104.  He saw no need for permanent restrictions, and no need for referral to a neurosurgeon.

     ORMSCO also submitted Dr. Tutt’s office note from the Lexington Clinic dated August 16, 2016.  He noted Blackburn had sustained a new subacute L4 anterior superior endplate fracture with 10% loss of height.  He stated he preferred to believe this was unrelated to the previous L3 fracture.

     In his decision issued February 1, 2016, the ALJ found Blackburn sustained an L3 compression fracture in the course and scope of his employment at ORMSCO.  In the order on reconsideration, he determined the L4 compression fracture was not work-related.  He additionally found Blackburn is not totally disabled due to this injury.  Regarding his analysis pertaining to permanent total disability, the ALJ stated as follows:

Here, the plaintiff did sustain a work related injury for which he has been assessed with impairment by Dr. Hughes, Dr. Autry and Dr. Kriss. The next step in the analysis requires the ALJ to determine the actual percentage of impairment causally related to the work injury. The plaintiff's claim alleges a low back injury and I am convinced from the evidence the plaintiff sustained the acute burst fracture of the L3 superior endplate with approximately 50% loss of height as directly noted by the treating surgeon on March 8, 2014. The point of contention between the parties in this case has been whether the fracture resulted in an approximate 20% loss of height or approximate 50% loss of height. Dr. Kriss opined there to be an approximate 20% loss of height on his review of the diagnostic studies. However, Dr. Page was by far in the best position to determine the loss of height as he performed the surgical repair. At the time of the surgery, there was no indication of bias playing any role in the comments of Dr. Page as he was not hired to give an opinion upon which benefits would be based. While I recognize the differing opinions herein, I am simply convinced the opinion of Dr. Page has more credibility on this issue. The defendant did cross-examine Dr. Hughes regarding the successful results of the surgery. It appears that after healing, the 50% loss of height was significantly reduced. The assessment of impairment from all physicians comes from Table 15-3 as a burst fracture with 25% or greater loss of disc height places the injury in a DRE Category III wherein less than 25% places the injury in a DRE Category II. The example set forth in the AMA Guides does not indicate or leaves the impression the measurement was taken after treatment. Instead, the individual an[sic] Example 15-5 was assessed with a DRE Category IV for having a burst fracture with greater than 50% loss of height without neurologic findings. Therefore, I am convinced that Dr. Hughes and Dr. Autry correctly placed the plaintiff into a DRE Category III for 13% impairment as the result of his L3 burst type compression fracture. This is the impairment assessed by both Dr. Autry and Dr. Hughes for the plaintiff's lumbar condition.


          The ALJ then found Blackburn entitled to the 2 multiplier contained in KRS 342.730(1) beginning July 16, 2016. 

     ORMSCO filed a petition for reconsideration arguing the ALJ erred in basing an award on the degree of compression fracture found on the date of injury rather than when Blackburn reached MMI.  It also argued the L4 compression fracture was unrelated to the work injury.  It requested the ALJ award PPD benefits based upon the 5% impairment rating assessed by Dr. Kriss for the L3 compression fracture after Blackburn reached MMI, and to dismiss the claim for the L4 compression fracture.  In his order on reconsideration, the ALJ found as follows:

This matter is before the ALJ on Petition for Reconsideration filed by the defendant. The defendant requests the ALJ reconsider his finding regarding the appropriate impairment rating and also asks the ALJ reconsider the absence of a determination on the work relatedness of an L4 compression fracture. The ALJ has considered the arguments set forth by the defendant and hereby orders as follows:


1.   The defendant's first request must be and is DENIED. A thorough review of the AMA Guides clearly reveals that the degree of the compression fracture is the basis for the plaintiff being placed into a DRE Category III by two separate physicians. The opinion of the two physicians was confirmed by the records of the treating physician, whereas the opinion of the physician who placed the plaintiff in a DRE Category II was not.


2.         The defendant's second request regarding the lack of a finding on the L4 compression fracture is GRANTED as the defendant correctly points out the lack of proof that the newly discovered fracture was related to the original work injury within the realm of reasonable medical probability. Therefore, the defendant must be relieved of responsibility for payment of medical expenses associated with the new L4 compression fracture.


          ORMSCO does not dispute the fact that Blackburn sustained a compensable work-related L3 compression fracture.  The question on appeal is the severity of the condition, and the extent of his disability.  ORMSCO argues the impairment rating should be based upon Blackburn’s condition at the time he reached MMI, not based upon the initial x-ray findings prior to his surgical treatment.  ORMSCO argues that Dr. Hughes’ opinion regarding impairment cannot constitute substantial evidence since his assessment was based upon an x-ray taken prior to Blackburn’s surgery, and he did not review any testing subsequent to the surgery, or subsequent to him reaching MMI.  ORMSCO additionally argues Dr. Autry’s assessment cannot constitute substantial evidence because it is based upon a combined impairment based upon compression fractures of the L3 and L4, although the ALJ determined the L4 condition is not work-related or compensable.

          As the claimant in a workers’ compensation proceeding, Blackburn had the burden of proving each of the essential elements of his cause of action.  See KRS 342.0011(1); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979).  Since Blackburn was successful in his burden, the question on appeal is whether there was substantial evidence of record to support the ALJ’s decision.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984).  Substantial evidence” is defined as evidence of relevant consequence having the fitness to induce conviction in the minds of reasonable persons.  Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  

          In rendering a decision, KRS 342.285 grants an ALJ as fact-finder the sole discretion to determine the quality, character, and substance of evidence.  Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).  An ALJ may draw reasonable inferences from the evidence, 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.  Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979); Caudill v. Maloney’s Discount Stores, 560 S.W.2d 15 (Ky. 1977).  In that regard, an ALJ is vested with broad authority to decide questions involving causation.  Dravo Lime Co. v. Eakins, 156 S.W.3d 283 (Ky. 2003).  Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal.  McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974).  Rather, it must be shown there was no evidence of substantial probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). 

          The function of the Board in reviewing an ALJ’s decision is limited to a determination of whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).  The Board, as an appellate tribunal, may not usurp the ALJ's role as fact-finder by superimposing its own appraisals as to weight and credibility or by noting other conclusions or reasonable inferences that otherwise could have been drawn from the evidence.  Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

          The discretion afforded to an ALJ is not without limitation.  In reaching a determination, the ALJ must provide findings sufficient to inform the parties of the basis for the decision to allow for meaningful review, and as noted above the determination must be based upon substantial evidence.  Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).

          We initially note the definitions provided in the Kentucky Workers’ Compensation Act at KRS 342.0011 (35), (36) & (37) state as follows:

(35) "Permanent impairment rating" means percentage of whole body impairment caused by the injury or occupational disease as determined by the "Guides to the Evaluation of Permanent Impairment";


(36) "Permanent disability rating" means the permanent impairment rating selected by an administrative law judge times the factor set forth in the table that appears at KRS 342.730(1)(b); and


(37) "Guides to the Evaluation of Permanent Impairment" means, except as provided in KRS 342.262:


(a)    The fifth edition published by the American Medical Association; and


(b) For psychological impairments, Chapter 12 of the second edition published by the American Medical Association.


          MMI and the proper method of assessment of impairment is set forth in the AMA Guides.  Chapter 1, Philosophy, Purpose and Appropriate Use of the Guides, 1.2(a), p. 2, states as follows:

An impairment is considered permanent when it has reached maximal medical improvement (MMI), meaning it is well stabilized and unlikely to change substantially in the next year with or without residual treatment.


          The AMA Guides in Chapter 15, which deals with spinal impairment, Introduction, P. 374, states as follows:

As stated in this edition, an individual with a spinal condition is rated only when the condition is stabilized (unlikely to change within the next year regardless of treatment), ie, when MMI has been reached (Chapter 1 and Glossary).  The individual is evaluated based on medical findings that are present when MMI has been reached. (Emphasis added).


          In the Glossary of the AMA Guides, P. 601, MMI is defined as follows:

Maximal Medical Improvement.  A condition or state that is well stabilized and unlikely to change substantially in the next year, with or without medical treatment.  Over time, there may be some change; however, further recovery or deterioration is not anticipated.


          In this case, the impairment rating assessed by Dr. Hughes is based upon an x-ray report of Blackburn’s condition prior to undergoing corrective surgery on March 8, 2014, one day after his injury.  Dr. Hughes admitted he did not review any post-surgical radiographic studies.  He admitted it would take approximately six weeks for a compression fracture to heal, and this would include post kyphoplasty surgery.  The ALJ made no specific finding as to when Blackburn reached MMI, however TTD benefits were awarded through June 24, 2014, when Dr. Page released him to return to work without restrictions other than wearing a back brace.  Because Dr. Hughes’ assessment of impairment is based upon a review of a report of an x-ray prior to Blackburn’s surgery, and prior to his reaching MMI, or being allowed to return to work in June 2014, it cannot constitute substantial evidence supporting the ALJ’s decision.

          Likewise, Dr. Autry evaluated Blackburn subsequent to a later fracture at L4, which was determined to not be work-related.  This subsequent injury occurred long after Blackburn had returned to work, and after he had been released from Dr. Page’s care.  Likewise, this was long after Dr. Kriss determined he had reached MMI for the L3 injury.  The impairment rating assessed by Dr. Autry is inclusive of a rating for both the L3 and the non-compensable L4 injury.  There is no apportionment between the two conditions.  Because this rating is inclusive of an unrelated condition, it does not constitute substantial evidence supporting the ALJ’s determination.

          Therefore, the ALJ’s award of PPD benefits is vacated.  Again, there is no issue regarding whether Blackburn sustained a compensable injury to his L3 vertebra for which he is entitled to an award of PPD benefits.  However, any such award must be based upon Blackburn’s condition when he reached MMI, and must not include any assessment for the unrelated L4 condition.  On remand, the ALJ must determine when Blackburn reached MMI, and what award of PPD benefits to which he is entitled based upon his condition at that time, exclusive of any rating for his subsequent injury.  We do not direct any particular result, however any award of PPD benefits must be supported by the evidence in accordance with the AMA Guides.

          Accordingly, the February 1, 2017 Opinion, Award, and Order and the March 1, 2017 Order on petition for reconsideration rendered by Hon. John B. Coleman, Administrative Law Judge, are hereby AFFIRMED IN PART and VACATED IN PART.  This claim is REMANDED to the Administrative Law Judge for additional findings of fact and entry of an amended opinion in conformity with the views expressed herein. 
















LONDON, KY 40741







LONDON, KY 40741