May 4, 2018 201458536

Commonwealth of Kentucky 

Workers’ Compensation Board







CLAIM NO. 201458536



















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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.






300 E MAIN ST STE 360