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November 9, 2017 201684336

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  November 9, 2017

 

 

CLAIM NO. 201684336

 

 

LANDMARK MEDIA PUBLISHING LLC

d/b/a STANDARD PUBLISHING COMPANY

AS INSURED/ADMINISTERED BY PRAETORIAN/QBEAI    PETITIONER

 

 

 

VS.           APPEAL FROM HON. DOUGLAS GOTT,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

MARK BRANHAM

and HON. DOUGLAS GOTT,

CHIEF ADMINISTRATIVE LAW JUDGE                RESPONDENTS

 

 

OPINION

AFFIRMING

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

 

STIVERS, Member. Landmark Media Publishing, LLC d/b/a Standard Publishing Company (“Standard”) appeals from the June 19, 2017, Opinion, Award, and Order and the July 26, 2017, Order on Petition for Reconsideration of Hon. Douglas Gott, Chief Administrative Law Judge (“CALJ”). In the June 19, 2017, Opinion, Award, and Order, the CALJ awarded Mark Branham (“Branham”) temporary total disability benefits, permanent partial disability (“PPD”) benefits, and medical benefits for his work-related left knee injury. On appeal, Standard requests that this Board remand the claim to the CALJ with instructions to reduce the award of PPD benefits so that it is in compliance with KRS 342.730(2).

           The Form 101 alleges on February 4, 2016, Branham injured his left knee within the scope and course of his employment with Standard in the following manner:

Plaintiff suffered pain in his left knee on February 4, 2016 in the course of his employment climbing a ladder. Plaintiff suffered [sic] work-related injury causing a harmful change evidenced by objective medical evidence resulting in permanent impairment by the 5th Edition AMA Guides.

Landmark introduced the November 10, 2016, Independent Medical Examination (“IME”) report of Dr. Rick Lyon. After performing an examination and medical records review, Dr. Lyon diagnosed the following:

1. Status post medical meniscectomy x2, left knee.

2. Status post lateral meniscectomy, left knee.

3. Chondromalacia patella, left knee.

4. Early arthritis, left knee.

 

Dr. Lyon opined as follows:

 

Mr. Branham was cooperative for the evaluation and was seen with Ms. Kelly Lee as a chaperone. He denies any complaints of left knee pain until a work event in October 2013. He was evaluated by Dr. Maurer who performed a plica resection with debridement of patellofemoral arthritis. However, the operative note is not available for review and the procedure specifics were determined by a note generated by Dr. Best on 06/26/13.

 

Following the operative procedure, Mr. Branham did well until October 13, 2013 when he again injured his left knee. An MRI on 11/22/13 revealed chondromalacia of the patella and medial compartment and subcortical cystic changes of the lateral femoral condyle. He was evaluated by Dr. Bonnarens who performed arthroscopic meniscectomy on 01/08/14. Dr. Bonnarens also charted arthritic changes. Mr. Branham returned to regular duty work on 02/10/14. He was evaluated by Dr. Ballard on 04/01/15 and determined to have a 1% whole person impairment as a result of the meniscectomy.

 

Mr. Branham did well until sustaining another knee injury in February 2016. On 03/30/16, Dr. Bonnarens performed a surgical arthroscopy with partial medial and lateral meniscectomy. Again, he charted arthritic changes. Mr. Branham was released to full duty work on 07/18/16. Instead of returning to the printing job, he began work for the City. He denies any significant complaints of his left knee since returning to work.

Regarding an impairment rating, Dr. Lyon stated as follows:

I am in agreement Mr. Branham has reached maximum medical improvement on 07/18/16. Since he is an [sic] MMI an impairment rating can be determined using [sic] AMA Guide to Impairment 5th edition. Per table 17-33, page 546, he has a 4% whole person impairment as a result of the partial medial and lateral meniscectomy. As a result of the calf atrophy, he has a 1 to 2% impairment per table 17-b, page 530. Per table 17-2, page 526, these impairments cannot be combined. Therefore, Mr. Branham has a 4% whole person impairment. (Although Mr. Branham had a 1% impairment as a result of the work event in October 2013, he has a new 4% impairment as a result of both medial and lateral meniscectomy by Dr. Bonnarens on 03/30/16.)

In response to several questions, Dr. Lyon answered:

1. Your diagnosis and prognosis for the left knee. Please see diagnosis above. Mr. Branham has reached maximum medical improvement.

 

2. Your opinion concerning any additional impairment that may have been caused by the most recent 2/4/16 left knee injury; using the AMA Guides, 5th Edition, with citations to tables and pages; Please see impairment rating above.

 

3. Did you see any indication of symptom magnification, disingenuousness, or facilitation during your exam? Mr. Branham did not demonstrate any indication of symptom magnification, disingenuousness or facilitation.

 

4. Your opinion concerning permanent activity restrictions. It is my opinion Mr. Branham has no permanent activity restrictions.

 

Branham filed the December 19, 2016, IME report of Dr. Warren Bilkey. In his report, Dr. Bilkey detailed Branham’s prior left knee injuries and outcomes:

Review of provided records yields the following pertinent information. With respect to my prior IME dated 3/2/15, I noted the following work injury diagnoses and am including them here because they cover earlier injuries and their outcomes. Mr. Branham had the following diagnoses 3/2/15:

 

1. 6/6/12 work injury, left knee strain, aggravation of plica band, chondral contusion, post-traumatic chondromalacia. Mr. Branham underwent surgical repair of these concerns. Per ALJ decision, Mr. Branham acquired no permanent impairment related to the 6/6/12 work injury.

 

2. 10/26/13 work injury, left knee strain, aggravation of degenerative joint disease of the left knee, medial meniscus tear. Mr. Branham has undergone surgical partial meniscectomy. He has residual chronic pain affecting the left knee. Per the ALJ decision, Mr. Branham was found to have a 3% whole person impairment acquired as a result of the 10/26/13 work injury.

 

After performing a physical examination and medical records review, Dr. Bilkey diagnosed the following:

2/4/16 work injury, left knee strain, meniscus tear injury. Mr. Branham has undergone partial medial and lateral meniscectomy surgery. He has had a good outcome. He had aggravation of degenerative joint disease of the left knee.

Dr. Bilkey further opined as follows:

Mr. Branham strained his previously injured and operated upon left knee in the course of rapidly climbing up a ladder 2 steps at a time. When he twisted, he had sudden onset knee symptoms. MRI demonstrated internal derangement and he underwent surgery. He is doing well and is back to regular duty work.

 

In my opinion, the above diagnoses are due to the 2/4/16 work injury. The evaluation and treatment procedures that have been carried out appear to have been reasonable, medically necessary and work injury related.

 

Dr. Bilkey opined Branham reached maximum medical improvement on July 18, 2016, provided no treatment recommendations, and imposed no work restrictions. Regarding an impairment rating, Dr. Bilkey stated as follows:

Mr. Branham has acquired a permanent partial impairment caused by the 2/4/16 work injury. According to the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, according to Table 17-33, the DRE Table, on which basis impairments on the nature of the diagnosis and/or surgery carried out, Mr. Branham has 4% whole person impairment for partial medial and lateral meniscectomy. There is no impairment otherwise provided for loss of motion, muscle weakness, loss of cartilage interval. This means that Mr. Branham, solely as a result of the 2/4/16 [sic] has 4% whole person impairment. Since this impairment rating is based upon the specific injury that occurred and surgery that occurred for that specific injury, there is no apportionment of this impairment rating to a pre-existing active condition. That pre-existing active impairment was based upon a prior specific injury and surgery and is unaffected by the 2/4/16 work injury and impairment. For this reason there is no apportionment of the current 4% whole person impairment.

The November 14, 2016, Benefit Review Conference Order and Memorandum lists benefits per KRS 342.730 as the contested issue.

In the June 19, 2017, Opinion, Award, and Order, the CALJ made the following findings regarding the issue Standard raises on appeal:

Plaintiff Mark Branham, 48, has worked as a press operator for Defendant Landmark Media Enterprises since 1989. Landmark stipulates to a work related left knee injury on February 4, 2016, but for purposes of calculating the PPD award for that injury argues it is entitled to a credit for an award recently made for two prior work related left knee injuries also suffered at Landmark.

Those two prior injuries were the subject of Claim Number 2014-90414. Branham underwent an arthroscopic synovectomy with resection of plica band by Dr. Daniel Maurer on January 30, 2013. No impairment was assigned for that surgery, however, and the prior ALJ therefore found it to have been a temporary injury for which no permanent income benefits were owed. A second injury of October 26, 2013 required a meniscus repair by Dr. Frank Bonnarens on January 8, 2014. As for that injury, the ALJ adopted a 3% impairment rating assigned by Dr. Warren Bilkey, comprised of 1% for the surgery and 2% for arousal of degenerative conditions. He found Branham could return to his pre-injury work, which, in fact, Branham did. (Opinion and Award, 10 / 4/ 15).

On February 4, 2016, Branham was climbing a ladder, twisted, and felt a "pop" in his knee. He resumed treatment with Dr. Bonnarens, who ordered an MRI and found a recurrent meniscus tear. Surgery was performed on March 30, 2016. Dr. Bilkey again evaluated Branham at his attorney's request and assigned 4% impairment solely attributable to the most recent injury, independent of the prior injuries and surgery. The Defendant's evaluator, Dr. Rick Lyon, agreed with Dr. Bilkey, saying, "he has a new 4% impairment as a result of both medial and lateral meniscectomy performed by Dr. Bonnarens on 03/30/16."

 

Dr. Bonnarens released Branham on July 18, 2016. So besides there being no dispute over the 4% impairment, there is no dispute over the MMI date that terminates TID liability. (Branham testified he worked until surgery, so TTD begins on that date.) And, further, since Dr. Bilkey agrees with Dr. Bonnarens' belief that Branham could resume full-duty work, there is no dispute that no multipliers apply to the PPD calculation.

The Defendant argues Branham's PPD for the present left knee injury should be reduced by the 3% award he received in 2015. The Defendant relies on KRS 342.730(2), which states:

The period of any income benefits payable under this section on account of any injury shall be reduced by the period of income benefits paid or payable under this chapter on account of a prior injury if income benefits in both cases are for disability of the same member or function...and the income benefits payable on account of the subsequent disability in whole or in part would duplicate the income benefits payable on account of the preexisting disability.

In other words, the Defendant says the pending PPD award would be, at least in part, impermissibly duplicative of the prior award. It argues that the full calculation of a 4% award should not be payable until the 425 weeks of the prior award expire.

The CALJ disagrees. KRS 342.730(2) does in fact prohibit income benefits from duplicating  those  payable  for a  preexisting  disability,  and requires the  period of income benefits payable for an  injury to be  reduced by the  period of income benefits paid or payable for a  prior injury causing disability to the same body part. Harrison Memorial Hospital v. Sipe, 2011 WL 1103884, 2010-SC-287. However, a finding under this provision requires proof of duplication of benefits, and the medical proof in this case does not support that. Both evaluating medical experts said Branham had 4% impairment from the surgery solely related to the 2016 work injury, and that the 4% impairment was independent of any prior impairment assigned for the 2014 surgery. The Harrison case cited by the Defendant supports the CALJ's finding in that the Defendant's argument for exclusion of liability based on KRS 342.730(2) was rejected in that case.

     Branham is therefore entitled to a new PPD award as follows:  AWW of $1,257.44 x 2/3 = $838.29, subject to maximum for 2016 injuries of $598.98 x 4% x .65 = $15.57 per week for 425 weeks.

     Given the finding that the pending PPD benefits are not reduced by the prior award, the separate issue of an  allegedly enforceable  settlement on terms of 4% impairment without any reduction is moot.

          Landmark filed a petition for reconsideration which was denied by order dated July 26, 2017.

          Branham, as the claimant in a workers’ compensation proceeding, 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 Branham was successful in that 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).  

          An award of PPD benefits must be based upon impairment which a work injury causes, and any pre-existing active impairment preceding the injury must be excluded and not considered when determining the impairment solely attributable to the injury.  Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d at 183; see also Reinbold v. Ford Motor Co., 2003-SC-0705-WC; 2004 WL 1907756 (Ky. 2004). 

          When a work-related injury is superimposed upon a pre-existing active condition which is impairment ratable pursuant to the 5th Edition of the American Medical Association, Guides to the Evaluation of Permanent Impairment (“AMA Guides”) and which affects the same body part, the claimant’s permanent partial disability is determined by subtracting the pre-existing impairment rating from the overall impairment rating.  Whether a claimant has a pre-existing active impairment, resulting in an exclusion from a potential permanent partial disability award, must be determined in accordance with the AMA Guides.  Cf. Penick v. United Partial Service, 2005-CA-000208-WC, 2005 WL 1252344 (Ky. App. 2005). 

          Here, the CALJ relied upon the reports of Drs. Bilkey and Lyon in concluding “Branham had 4% impairment from the surgery solely related to the 2016 work injury, and that the 4% impairment was independent of any prior impairment assigned for the 2014 surgery.” A review of both reports, cited in relevant part herein, reveals that both physicians indeed opined Branham has a new 4% whole person impairment rating as a result of the February 4, 2016, injury and the partial medial and lateral meniscectomy performed by Dr. Frank Bonnarens on March 30, 2016. As Dr. Bilkey opined in his December 19, 2016, report, “[s]ince this impairment rating is based upon the specific injury that occurred and surgery that occurred for that specific injury, there is no apportionment of this impairment rating to a pre-existing active condition.” We also note Dr. Bonnarens performed a different surgical procedure as a result of the February 4, 2016, injury.  Thus, the award of PPD benefits for the subject injury is not a duplication of PPD benefits previously awarded.  As the reports of Drs. Bilkey and Lyon constitute substantial evidence in support of the CALJ’s conclusion regarding Branham’s February 4, 2016, injury, the resultant 4% whole person impairment rating, and the award of PPD benefits, we affirm.

          Accordingly, the June 19, 2017, Opinion, Award, and Order and the July 26, 2017, Order on Petition for Reconsideration are hereby AFFIRMED.  

          ALL CONCUR.

COUNSEL FOR PETITIONER:

HON THOMAS C DONKIN

2452 SIR BARTON WAY STE 300

LEXINGTON KY 40509

COUNSEL FOR RESPONDENT:

HON STEPHANIE N WOLFINBARGER

640 S FOURTH ST STE 400

LOUISVILLE KY 40202

CHIEF ADMINISTRATIVE LAW JUDGE:

HON DOUGLAS GOTT

657 CHAMBERLIN AVE

FRANKFORT KY 40601