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
*
* * * * *
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