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Workers’
Compensation Board
OPINION
ENTERED: May 4, 2018
CLAIM NO. 201458536
ARMSTRONG COAL COMPANY, INC. PETITIONER
VS. APPEAL FROM HON. MONICA
RICE-SMITH,
ADMINISTRATIVE LAW JUDGE
BRIAN PIPER
and HON. MONICA RICE-SMITH,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING
IN PART AND REMANDING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Armstrong
Coal Company, Inc. (“Armstrong”) appeals from the November 27, 2017, Opinion,
Award, and Order and the November 27, 2017, Order ruling on both parties’
petitions for reconsideration of Hon. Monica Rice-Smith, Administrative Law
Judge (“ALJ”). The ALJ awarded Brian Piper (“Piper”) temporary total disability
(“TTD”) benefits, permanent partial disability (“PPD”) benefits, and medical
benefits for the exacerbation of a pre-existing active lumbar condition. On appeal,
Armstrong asserts the ALJ erred in assigning a 16% permanent impairment rating
to Piper’s May 1, 2014, injury.
The Form 101 alleges on May 1, 2014,
Piper sustained injuries to his back in the scope and course of his employment
with Armstrong in the following manner: “A cable hit me in the head knocking me
approximately 10 feet to the mine floor injuring my back.”
Piper introduced several medical
records and reports of Dr. Benjamin Burkett. Pivotal to the ALJ’s ultimate
decision is the March 16, 2016, medical record of Dr. Burkett in which he set
forth the following opinions:
80% exacerbation of preexisting condition.
Overall, MRI findings are similar, it apprears [sic] MRI findings from October
2014 and July 2013 are the same. The work injury has amplified and expedited
the necessity for surgery. Current status is fair, prognosis is good. Recommend
lumbar fusion. No change work restrictions, and this is permanent. He is at
maximal improvement now. proceed [sic] for lateral interbody fusion. I reviewed
risks and benefits of surgery and he wishes to proceed. All of his questions
have been answered and no guarantees have been given.
On March
23, 2016, Dr. Burkett declared Piper to be at maximum medical improvement which
he confirmed in an April 22, 2016, letter.
Dr.
Burkett’s July 7, 2016, letter was also introduced which, in relevant part,
reads:
I believe he is appropriately rated as 10-13%
impairment of the whole person, based on the diagnosis of herniated disk at the
level and side that woudl [sic] be expected from objective clinical findings,
associated with radiculopathy and requiring surgery. I do not believe that he
meets criteria to reach greater than 20% impairment of the whole person because
he does not exhibit findings of significant lower extremity impairment such as
atrophy of muscles or loss of reflexes. He could be considered for 20-23%
impairment due to the fact that he did have a surgical fusion performed. I am
not a specialist in occupational medicine, and I would refer further questions
regarding disability ratings to a specialist in the field of occupational
medicine, ratings, etc.
Piper introduced the October 10, 2016,
Independent Medical Examination (“IME”) report of Dr. James Butler. After
performing an examination and medical records review, Dr. Butler calculated an
impairment rating:
Per the AMA Guides, Fifth Edition, Chapter 15 – The Spine, Mr.
Piper falls into DRE Lumbar Category IV which has a 20-23% impairment of the
whole person. That is based on the fact that he has loss of motion segment
integrity due to surgical arthrodesis at the L2-3 level. He also has multiple other
symptoms that do not fit a radicular or dermatomal pattern. Therefore, he does
not have the criteria to meet DRE Lumbar Category V. The range of motion of DRE
Lumbar Category IV is 20-23% impairment of the whole person. Mr. Piper exhibits
a significant amount of symptom magnification and both his Ransford Pain
Drawing and his Pain Disability Questionnaire suggest that there is significant
psychological overlay. Therefore, it is difficult to quantify how much he
should receive, if any, for pain. Therefore, I think that his impairment is
adequately rated at the lower level of DRE Lumbar Category IV for 20% whole
person, especially with his excellent strength and range of motion of his back.
Armstrong introduced the May 17, 2017,
IME report of Dr. Michael Best. After performing an examination and a medical
records review, Dr. Best opined as follows:
The April 1, 2014, injury was to the cervical
spine. Little, if any, injury was to the lumbar spine. Clearly, the disc
extrusions at L2-3 and L4-5 were preexisting conditions noted by MRI of the
lumbar spine dated July 16, 2013, nearly ten months prior to the work event noted to have occurred on May 1,
2014. It would, therefore, appear that this is a preexisting active medical
condition at both L2-3 and L4-5.
It would, therefore, be of benefit to be provided the entirety
of the 2013 treatment records by the primary care physician Kristy Chappell,
M.D., in Powderly, Kentucky, as well as any treatment records from Dr. Burkett
prior to the date of injury, May 1, 2014. Also, it appears that there may be
treatment provided by another physician, Heloise Westbrook, M.D., in
Greenville, Kentucky, prior to the work event. These records will help
definitively determine the status of this preexisting active medical condition
requiring care and treatment at the time of the May 1, 2014, work event.
Dr. Best assessed a 7% impairment
rating due to the subject work injury, explaining as follows:
The impairment rating on July 16, 2013, via
MRI of the lumbar spine, would indicate the patient’s preinjury impairment to
be at least a Lumbar DRE Category III, a 13% whole person impairment
rating.
Following the single-level instrumented
fusion of April 9, 2015, the patient meets criteria for a 20% whole person
impairment rating (DRE Category IV).
…
Therefore, the current impairment rating of
20% minus the preexisting impairment rating of 13% indicates that the maximum
impairment directly and causally related to the May 1, 2014, work even is a 7%
whole person impairment rating under The Fifth Edition AMA Guides.
Regarding the need for additional
treatment, Dr. Best stated:
Depending on the findings of the treatment records from 2013, we
will be able to determine if this is a work-related condition. If indeed it
does appear to be work related, then the patient may require a myelogram and
post-myelogram CT scan.
The September 26, 2017, Benefit
Review Conference Order and Memorandum lists the following contested issues:
benefits per KRS 342.730; credit for overpayment of TTD; exclusion for
pre-existing disability/impairment; and extent and duration.
The ALJ set forth the following findings of fact and
conclusions of law:
After careful review of all the evidence,
the ALJ finds that Piper has sustained a 20% whole person impairment with 80%
due to the work injury on May 1, 2015. Piper sustain [sic] a serious work
injury, when a mining cable struck him in the head and knocked him to the ground, however
the medical records establish that Piper had [sic] pre-existing lumbar
condition which was exacerbated by the work injury. Dr. Butler and Dr. Best
both agree that Piper would have a total whole person impairment of 20% based
on the herniation and resulting surgery. The medical evidence differs with
regard to the extent of any pre-existing condition.
The ALJ finds
based on the treatment records that Piper had a pre-existing active low back
condition. The records of Dr. Rasheed and Dr. Nguyen document in 2013 Piper had
complaints of low back pain radiating into the hip and leg. This pain resulted
in treatment including pain medications, multiple injections, and a
radiofrequency procedure. The 2013 injury revealed the disc extrusions at L2/3
and L4/5 with possible impingement at the L4 nerve root. During this period of
treatment, Piper continued to work, but did so while receiving active
treatment. Piper testified he was taking pain medications and muscle relaxers
at the time of his May 1, 2014 work injury. In fact, his first treatment
following the work injury was a previously scheduled pain management
appointment.
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 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.
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 extrusions 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
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 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.
The ALJ finds
Piper is not entitled to permanent total disability (PTD). Pursuant to Osborne
v. Johnson, 432 S.W.2d 800 (KY 1968), the ALJ must evaluate the post-injury
physical, emotional, intellectual, and vocational status when determining
entitlement to PTD. When determining entitlement PTD or total occupational
disability, restrictions due to non-work related conditions cannot be
considered. City of Ashland v. Stumbo, 461.S.W.3d 392 (KY 2015).
Piper’s limitation
regarding his work injury do not preclude him from all employment. The only
restrictions offered are those imposed by Dr. Burkett. Dr. Burkett restricted
Piper to standing/walking up to 4 hours per day, frequently lifting no more
than 20 pounds, and maximum lifting no more than 20 pounds. Dr. Burkett
restricted Piper to only stoop/bend/twist 5-10 times per hour and should
alternate sitting and standing 20 minutes per hour and stand 20 minutes per
hour. Despite testifying he could do very little, the ALJ is skeptical of
Piper’s realization of his abilities due the symptom magnification and
insufficient efforts noted by Dr. Butler and Dr. Best. The ALJ believes Piper
could perform work within Dr. Burkett’s restrictions.
Piper is
forty-eight years old. He graduated from high school. During his testimony,
there was no indication that Piper has any limitations in intellectual ability
or thought processes.
Although Piper is
not totally occupationally disabled, he is unable to return to the work he was
performing as a coalminer at the time of the injury. Piper’s work as a
coalminer was heavy manual labor. He testified he was required to lift 25-200
pounds regularly. He was also required to do a lot of bending, twisting,
crawling, walking a squatting. He could not perform this work under the
restrictions of Dr. Burkett.
Based on the
foregoing, Piper is not totally occupationally disabled and is not entitled to
PTD benefits. Piper is unable to return the work he was performing at the time
of injury and is entitled to the three multiplier.
The ALJ finds that
Jones has a 16% whole person impairment and is entitled to the three
multiplier.
Piper’s benefits shall be calculated as
follows:
$1258.72 x 66 2/3 (max $576.80) x 16% x
1.15 X 3 = $318.39.
Both parties filed petitions for
reconsideration. Armstrong asserted the same argument it now puts forth on
appeal. The ALJ overruled Armstrong’s petition for reconsideration by order
dated December 3, 2018, finding it to be “a request to reargue the evidence,
and is not appropriate for a petition for reconsideration.”
On appeal, Armstrong asserts the ALJ’s
decision to assign a 16% impairment rating to Piper’s May 1, 2014, injury is
erroneous, arguing, in part, as follows:
The ALJ was required to pick from one of the three impairment
ratings in the record: the 7% WPI rating issued by Dr. Best, the 10-13%
impairment rating issued by Dr. Burkett, or the 20% WPI rating issues by Dr.
Butler. The ALJ erred by independently calculating a 16% WPI rating.
We vacate the ALJ’s award of PPD
benefits and remand for additional findings.
In Dr. Burkett’s
March 16, 2015, medical record, he states, “80% exacerbation of preexisting
condition.” Not only does this language fail to specify if he is referring to a
preexisting active condition, but it
is too vague, as a matter of law, to serve as the basis for the ALJ to
calculate her own impairment rating even if he had specified pre-existing active
condition. As it stands, however, Dr. Burkett offered no opinion that the
impairment rating stemming from the May 1, 2014, injury was 80% of a
pre-existing active impairment
rating, and this is confirmed by the fact that he assessed a 10-13% impairment
rating without attributing any of it to a pre-existing active condition.
Significantly,
we note that, in the November 27, 2017, Opinion, Award, and Order, the ALJ
arrived at her 16% impairment rating by merely calculating 80% of 20%. However,
this calculation of impairment is not only incompatible with the 5th
Edition of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment, but, as much as we can glean from Dr. Burkett’s
ambiguous language, this calculation does not represent an “80% exacerbation of
[a] pre-existing condition.” Therefore, it is abundantly clear that even the
ALJ did not fully understand the meaning behind Dr. Burkett’s ambiguous
language.
Substantial
evidence has been defined as some evidence of substance and relevant
consequence, having the fitness to induce conviction in the minds of reasonable
people, and Dr. Burkett’s opinion regarding an “80% exacerbation of preexisting
condition” falls short of this standard.
See Smyzer v. B.F. Goodrich
Chemical Co., 474 S.W.2d 367 (Ky. 1971). 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.
Accordingly, the award of PPD as
granted in the November 27, 2017, Opinion, Award, and Order and affirmed in the
November 27, 2017, Order is VACATED.
This 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.
ALVEY, CHAIRMAN, CONCURS.
RECHTER, MEMBER, DISSENTS WITHOUT SEPARATE OPINION.
COUNSEL
FOR PETITIONER:
HON WILLIAM MESSER
300 E MAIN ST STE 360
LEXINGTON KY 40507
COUNSEL
FOR RESPONDENT:
HON RONALD K BRUCE
166 N MAIN ST
GREENVILLE KY 42345
ADMINISTRATIVE
LAW JUDGE:
HON MONICA RICE-SMITH
657 CHAMBERLIN AVE
FRANKFORT KY 40601
