RENDERED:  AUGUST 24, 2018; 10:00 A.M.

NOT TO BE PUBLISHED

 

 

Commonwealth of Kentucky

Court of Appeals

NO. 2017-ca-001227-wc

 

 

gary blackburn                                                                  APPELLANT

 

 

 

                            PETITION FOR REVIEW OF A DECISION

v.                     OF THE WORKERS’ COMPENSATION BOARD

                                        ACTION NO. WC-14-91750

 

 

 

ORMSCO, INC.; DR. ERIN GREER,

KENTUCKY ONE HEALTH-PCA;

HON. JOHN B. COLEMAN,

ADMINISTRATIVE LAW JUDGE;

AND WORKERS’ COMPENSATION
BOARD                                                                                         APPELLEES

 

 

 

OPINION

REVERSING AND REMANDING

 

** ** ** ** **

 

BEFORE:  ACREE, D. LAMBERT AND THOMPSON, JUDGES.

ACREE, JUDGE:  Gary Blackburn appeals the June 30, 2017 opinion of the Workers’ Compensation Board (the Board) affirming in part, vacating in part, and remanding his claim to the Administrative Law Judge (ALJ) for additional findings of fact and entry of an amended opinion.  The issue is whether substantial evidence supported the impairment rating assigned to Blackburn by the ALJ upon which Blackburn’s permanent partial disability rating was based.  After careful review, we conclude that the Board misconstrued controlling authority and flagrantly erred in evaluating the evidence.  Therefore, we reverse the Board and remand for reinstatement of the ALJ’s opinion and order.

FACTUAL AND PROCEDURAL BACKGROUND

                   Gary Blackburn began working for ORMSCO, Inc. in 2009 as a small engine mechanic.  The job required extensive manual labor activities, including loading and moving equipment.  On March 7, 2014, Blackburn injured his lower back while pulling on a trailer that had gotten stuck.  Blackburn felt a pop followed by the onset of pain, and sought treatment at the emergency room.  He complained of pain in his back as well as tingling and numbness in his left leg and toes.  He was diagnosed with a burst-type compression fracture at L3.  Surgery was recommended and performed the following day by Dr. Jean-Maurice Page.

                   Dr. Page performed a reduction and internal fixation by kyphoplasty of the L3 burst compression fracture.  Blackburn treated with his primary care physician and participated in physical therapy.  Blackburn was released to return to his regular work on June 24, 2014, with the restriction of wearing a back brace.  Dr. Page later released Blackburn without restriction on October 2, 2014.

                   Blackburn returned to work upon his initial release, earning higher wages than before the injury, and worked regularly through March 18, 2016.  However, he continued to have lower back pain and was reliant on pain medication.  Blackburn exacerbated his injury on June 15, 2015.  On July 15, 2016, ORMSCO terminated Blackburn’s employment.

                   Blackburn sought relief.  He filed a claim against ORMSCO seeking benefits for an injury to his lower back occurring in the course and scope of his employment on March 7, 2014.  He later amended his claim to include the June 2015 event.  Eventually, the matter was presented to an ALJ for a decision.  The issues to be decided were the extent and duration of permanent disability, entitlement to temporary total disability, and the compensability of contested medical expenses.

                   Blackburn supported his claim with a Form 107-I medical report from Dr. Arthur Hughes.  Dr. Hughes examined Blackburn on December 15, 2015, taking and addressing a history of the injury, subsequent treatment, and the June 2015 re-injury.  Dr. Hughes stated that Blackburn would have a 13% whole person impairment according to the AMA Guides for the L3 burst fracture with a 50% compression.  Dr. Hughes stated that Blackburn may be at maximum medical improvement (MMI) if no further treatment was provided.  Dr. Hughes noted Blackburn’s complaints of persistent low back pain and left leg pain, and his plans for a consultation with a neurosurgeon. 

                   ORMSCO deposed Dr. Hughes.  In his deposition, Dr. Hughes stated he assessed the 13% impairment under DRE category III because the surgeon, Dr. Page, noted the fracture to have a 50% compression.  Additionally, he acknowledged that the operative report indicated that the fracture had been reduced by almost 90% post-surgery, and that it usually takes about six weeks for a compression fracture to heal.  Dr. Hughes further acknowledged that an individual must be at MMI before an impairment rating may be assigned according to the AMA Guides.  Dr. Hughes did not order any x-rays or review any films after the kyphoplasty was performed.      

                   Dr. Matthew Tutt, a neurosurgeon, evaluated Blackburn on May 29, 2016.  Dr. Tutt noted that Blackburn appeared to be in significant pain, but the symptoms were out of proportion according to the MRI.  A new L4 compression fracture was discovered on August 16, 2016.  Dr. Tutt indicated that the L4 fracture was unrelated to the fracture and subsequent kyphoplasty at L3. 

                   In further support of his claim, Blackburn submitted the examination of Dr. Stephen Autry.  Dr. Autry examined Blackburn on November 9, 2016, after the fracture at L4 was discovered.  Dr. Autry took a history of the injuries, subsequent treatment and diagnostic studies.  He placed Blackburn into a DRE Category III for having lumbar vertebral fractures at L3 and L4 secondary to direct trauma with greater than 25% vertebral height loss.  Dr. Autry assessed Blackburn with a 7% impairment due to right rotator cuff tendinosis and impingement related to the utilization of crutches while dragging his foot.  He noted Blackburn suffered from osteoporosis, but the condition was not work-related.  Dr. Autry believed the fracture at L4 to be secondary to work activities.  He assessed a 13% impairment rating to Blackburn for the L3 and L4 compression fractures.  Dr. Autry found that Blackburn had reached MMI, but was no longer able to perform the type of work he was doing when the injury occurred.

                   While continuing to work at ORMSCO, Blackburn was seen at St. Joseph’s Primary Care where he was diagnosed with chronic low back pain and osteopenia in December 2014.  Blackburn was referred to Dr. Gregory D’Angelo for continuing left leg pain and worsening chronic low back pain.  In October 2015, an MRI of the lower back was performed.  The MRI revealed the L3 kyphoplasty, but was otherwise unremarkable.  Dr. D’Angelo saw Blackburn for continuing hip pain and SI joint pain, but there was no evidence to substantiate radiculopathy.  Dr. D’Angelo noted that Blackburn needed to have his SI joint evaluated.

                   ORMSCO filed the December 14, 2015 report of Dr. Ronald Fadel detailing his findings of a utilization review he was asked to conduct following a recommendation of an MRI of the hips.  After reviewing Blackburn’s records, Dr. Fadel found that Blackburn had been declared at MMI by his provider on October 2, 2014, at which time he was released from additional treatment and to work without restrictions.  Dr. Fadel was unable to support the hip MRI request.  He did not feel it would be necessary or related to the work injury, but that the referral to the orthopedist and neurosurgeon were reasonable under the circumstances.

                   On December 23, 2015, Dr. Timothy Kriss conducted an independent medical evaluation (IME) of Blackburn.  Dr. Kriss reviewed the CT scan taken at the time of the injury and indicated the compression fracture was at a 20% decrease in height.  He believed the kyphoplasty had been very successful reducing almost all of the compression fracture.  Dr. Kriss noted Dr. Page’s operative report which stated the fracture was reduced almost 90%.  Dr. Page later opined that Blackburn had reached MMI on October 2, 2014, and could return to work full duty as tolerated.  Dr. Kriss agreed with the MMI assessment. 

                   After Blackburn was jolted on a Bobcat work vehicle at work in June 2015, he was thereafter diagnosed with chronic low back pain.  It was not until October and December 2015 that Blackburn complained of hip and leg pain.  Dr. Kriss believed Blackburn was exaggerating his symptoms because the October 2015 MRI and the neurological examination were normal.  He concluded that none of the subsequent complaints of hip and leg pain can be attributed to the March 7, 2014 work injury.  Dr. Kriss further stated there was no medical evidence of a permanent harmful change due to the June 2015 event.  Dr. Kriss stated the 20% L3 compression fracture automatically places Blackburn into the lower level of DRE Category II.  Dr. Kriss assigned Blackburn a 5% whole person impairment because of the successful nature of the kyphoplasty.   

                   ORMSCO also submitted relevant office notes from Blackburn’s surgeon, Dr. Page.  The September 18, 2016 note reflects Blackburn was doing well, but continued to experience some pain.  The x-rays from that time revealed the kyphoplasty at L3 with no acute compression and a normal disc height.  On October 2, 2014, Dr. Page noted Blackburn had reached MMI, and his only restrictions were to use a back brace while working.

                   Based on the foregoing, the ALJ concluded that Blackburn had been rendered permanently partially disabled as a result of his work-related injury.  As it relates to Blackburn’s actual percentage of impairment, the ALJ provided:

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 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 [i]n 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 further concluded that Blackburn’s 13% permanent partial disability rating was entitled to have his benefits increased by a factor of 2X beginning on July 16, 2016 pursuant to KRS 342.730(1)(c)(2).  The ALJ also determined Blackburn to be entitled to temporary total disability benefits from March 7, 2014 through June 24, 2014.  And lastly, the ALJ resolved the dispute regarding Blackburn’s medical expenses concerning the left hip MRI, SI joint and rotator cuff conditions in favor of ORMSCO as they were not causally related to Blackburn’s work injury.  ORMSCO also sought to limit Blackburn’s future treatment of the L3 compression.  The ALJ was unable to make determinations about any possible treatment Blackburn may require in the future; however, the ALJ noted that ORMSCO could file a medical dispute in the event future treatment is sought.

                   ORMSCO filed a petition for reconsideration regarding the impairment rating and the absence of a determination of the work-relatedness of the L4 compression fracture.

                   ORMSCO argued that it did not dispute that a compensable injury occurred, but the impairment rating should have been determined after Blackburn had received treatment and reached MMI as mandated by the AMA Guides.  Hence, the reliance on Dr. Hughes and Dr. Autry was error.  Dr. Hughes based his rating upon the level of compression immediately following the injury prior to Blackburn’s surgery.  Dr. Autry’s rating was based upon the L3 and L4 fractures combined, but the L4 fracture was a non-work-related condition.  ORMSCO submitted the opinion of Dr. Kriss for guidance on the impairment rating.  ORMSCO argued that Dr. Kriss reviewed Blackburn’s diagnostic film after he reached MMI, and measured the compression fracture at 10%, placing Blackburn in the DRE Category II. 

                   The ALJ denied ORMSCO’s request pertaining to the impairment rating, and granted the request regarding the lack of finding on the L4 fracture.  The ALJ noted the lack of proof regarding the L4 fracture and relieved ORMSCO of the responsibility of payment for medical expenses associated with it.

                   ORMSCO appealed to the Workers’ Compensation Board.  ORMSCO argued that the opinions of Dr. Hughes and Dr. Autry do not constitute substantial evidence supporting the impairment rating adopted by the ALJ because the ratings were in contravention of the directives of the AMA Guides as they were based on assessments prior to Blackburn reaching MMI.  The Board agreed with ORMSCO and vacated the ALJ’s decision because the impairment rating was based upon Blackburn’s condition prior to his surgery and Dr. Autry’s rating included a non-compensable condition.  Accordingly, the Board vacated the ALJ’s decision regarding the impairment rating and remanded for a determination of impairment and commensurate PPD benefits based upon Blackburn’s condition once MMI was reached and based solely on his work-related injury in accordance with the evidence in the record.  The Board affirmed the ALJ’s decision in all other aspects.  Blackburn now appeals.

STANDARD OF REVIEW

                   As a reviewing court in workers’ compensation cases, we will affirm the Board absent a finding that the Board “has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice.”  Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687–88 (Ky. 1992).  This requires a review of the ALJ’s decision.  Where the ALJ rules in favor of the party who “had the burden of proof, the standard of review on appeal is whether there was substantial evidence to support such a finding.”  See Addington Resources, Inc. v. Perkins, 947 S.W.2d 421, 423 (Ky. App. 1997).  Substantial evidence is defined as evidence of relevant consequence which would induce conviction in the minds of reasonable people.  Smyzer v. B.F. Goodrich Chemical Co., 474 S.W.2d 367, 369 (Ky. 1971).  Thus, where an ALJ’s finding is unsupported by substantial evidence, it is well within the province of the Board and this Court to reverse the ALJ.

ANALYSIS

                   On appeal, Blackburn argues that the Board misinterpreted the AMA Guides, misunderstood the evidence of record and, therefore, wrongfully concluded that the assessment of impairment relied upon by the ALJ did not constitute substantial evidence.  We agree.

                   In vacating the ALJ’s decision that relied upon Dr. Hughes’s impairment rating of Blackburn, the Board’s order provided: “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.”  (R. 520).  This was error.

                   A permanent impairment rating resulting from an injury must be determined by utilization of the AMA Guides.  KRS 342.730(1).  The proper interpretation of the AMA Guides and any assessment of an impairment rating in accordance with those Guides are medical questions reserved only to medical witnesses.  Lanter v. Kentucky State Police, 171 S.W.3d 45, 52 (Ky. 2005); Ky. River Enters., Inc. v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003).  Accordingly, neither an ALJ nor the Board is authorized to interpret the Guides.  George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288, 294 (Ky. 2004).

                   The diagnosis-related method (DRE) is “the principal methodology used to evaluate an individual who has had a distinct injury” to their spine.  AMA Guides p. 379 (emphasis added).  There are two approaches to employing this method.  “The first is based on symptoms, signs, and appropriate diagnostic test results.  The second is based on the presence of fractures and/or dislocations with or without clinical symptoms.  If a fracture is present that places the individual into a DRE category, no other verification is required.”  Id. at 381.  The Guides are clear that an individual is to be evaluated for impairment only after having reached MMI, and further, that the impairment rating is not based upon prior signs or symptoms.  Id. at 383. The medical experts in this case each utilized the DRE method to determine Blackburn’s impairment.  His impairment was based upon the fracture he sustained to his L3 vertebra on March 7, 2014. 

                   Dr. Hughes assessed Blackburn as having a burst fracture at L3 with a 50% loss of height.  The degree of fracture placed Blackburn into DRE Category III based upon Table 15-3 of the Guides.  (R. 231).  The range of Whole Person Impairment for that category is 10%-13%; Dr. Hughes assigned Blackburn a 13% whole person impairment.  Dr. Hughes’s report provided that he reviewed Blackburn’s medical history and records.  He conducted a physical examination of Blackburn on December 15, 2015, and noted that he could be considered at MMI.  In his deposition, Dr. Hughes acknowledged that he did not personally view any diagnostic films, but only reviewed reports of the relevant films and x-rays.  Dr. Hughes stated that his categorization of Blackburn in DRE Category III was based upon Dr. Page’s observation, as Blackburn’s surgeon, from March 8, 2014, of Blackburn’s L3 fracture as having a 50% loss of height.  The ALJ determined that the reliance on the surgeon’s opinion who had assessed the injury firsthand had made Dr. Hughes’s assessment the most persuasive out of all the medical opinions regarding the degree of Blackburn’s L3 fracture, and ultimately, his impairment rating.  Medical evidence is required to establish the amount of impairment (pursuant to the Guides) that an injury causes; however, it is for the ALJ to determine which medical evidence is most persuasive.  KRS 342.285; Kentucky River Enterprises v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003). 

                   While the Board stated in its decision that it does not direct any particular result, it effectively eliminated all relevant medical evidence (pertaining to the degree of the fracture) in its decision from the ALJ, apart from Dr. Kriss’s opinion.[1]  Dr. Kriss placed Blackburn into the lower level DRE Category II because he personally reviewed Blackburn’s diagnostic film at the time of his injury but found only a 20% L3 compression fracture.  (R. 96).  The range of Whole Person Impairment for that category is 5%-8%; Dr. Kriss assigned Blackburn a 5% whole person impairment.  Dr. Kriss’s assessment was based upon Blackburn’s fracture just as Dr. Hughes’s assessment.  Both placed Blackburn in a DRE Category based upon his injury, a burst-type compression fracture, as directed by the Guides.  They simply had differing opinions as to the degree of the fracture.

                   The Board was persuaded by ORMSCO that Dr. Hughes had erred in his determination of Blackburn’s whole person impairment by alleging his determination was made prior to Blackburn reaching MMI because it was based upon the fracture at the time of his injury.  However, Dr. Kriss employed the same means of assessing Blackburn’s impairment.  They each relied upon notes and x-rays taken at the time of the injury, prior to the kyphoplasty.  The DRE method was interpreted and utilized by each doctor in the same way, and its use was never disputed or questioned by the parties.  In view of the conflicting assessments offered by Dr. Hughes and Dr. Kriss, the ALJ was well within his discretion to accept Dr. Hughes’s impairment rating.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).

                   In this case, the impairment ratings were properly based upon the AMA Guides, and it was within the ALJ’s discretion to choose which medical opinion to believe.  The Board effectively substituted its judgment for that of the ALJ, which it cannot do.  KRS 342.285(2).  The ALJ “has the sole authority to judge the weight, credibility, substance, and inferences to be drawn from the evidence.”  AK Steel Corp. v. Adkins, 253 S.W.3d 59, 64 (Ky. 2008) (citation omitted).  “As fact-finder, an ALJ may reject any testimony and believe or disbelieve various parts of the evidence, regardless of whether it comes from the same witness or the same party’s total proof.”  Gaines Gentry Thoroughbreds/Fayette Farms v. Mandujano, 366 S.W.3d 456, 461 (Ky. 2012) (internal citation omitted).  For these reasons, we conclude the Board erroneously vacated the ALJ’s decision pertaining to Blackburn’s impairment rating.  Therefore, we reverse and remand this matter to the Board for reinstatement of the ALJ’s opinion, award and order.

 

                   ALL CONCUR.

 

BRIEF FOR APPELLANT:   McKinnley Morgan London, Kentucky

BRIEF FOR APPELLEE:   Scott M. Brown Lexington, Kentucky