Opinion
NO. 2013-CA-001102-WC
03-13-2015
ROBERT CORBETT APPELLANT v. MAKERS MARK DISTILLERY; HON. WILLIAM J. RUDLOFF, ALJ; AND WORKERS COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Ched Jennings Louisville, Kentucky BRIEF FOR APPELLEE, MAKER'S MARK DISTILLERY, INC.: Stephanie L. Kinney Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-00930
OPINION
AFFIRMING
BEFORE: KRAMER, NICKELL, AND STUMBO, JUDGES. NICKELL, JUDGE: Robert Corbett (Corbett) petitions for review of an opinion of the Workers' Compensation Board (Board) vacating and remanding the opinion and order of the Administrative Law Judge (ALJ). The Board vacated the ALJ's finding of a work-related cumulative trauma injury, and remanded this matter to the ALJ to determine whether Corbett sustained a work-related specific trauma injury; whether Corbett gave due and timely notice of any such injury; and whether Corbett was entitled to an award of temporary total disability (TTD) and medical benefits. The Board further held the ALJ could not award permanent partial disability (PPD) or permanent total disability (PTD) benefits because the record evidenced no permanent whole person impairment rating (impairment rating) pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment Guides (AMA Guides). Having reviewed the record, we affirm.
Various terms are used interchangeably in workers'compensation cases when referencing the type of injury resulting from a long series of work-related mini-traumas over an extended period, including: cumulative trauma, repetitive trauma, wear-and-tear type, and gradual.
Specific trauma injuries may also be referred to as acute trauma injuries or single trauma injuries.
BACKGROUND
Corbett began working for Maker's Mark Distillery, Inc. (Maker's Mark) in May 1987. Corbett's first injury at Maker's Mark occurred on September 20, 2006. While working as a warehouse foreman, he fell from a ladder, injuring his pelvis, left wrist, and low back.
After undergoing left wrist surgery and missing six weeks of work, Corbett returned to his regular work activities, with no physical restrictions or limitations. Dr. Jeffrey N. Been assigned a 6% impairment rating for Corbett's left wrist injury pursuant to the AMA Guides, and Dr. John J. Guarnaschelli assigned a 5% impairment rating for Corbett's low back condition. Dr. Guarnaschelli noted Corbett had radiographic evidence of very minimal scoliosis and minimal hypertrophic degenerative changes of the lumbar spine. Absent Corbett's subsequent development of progressive neurologic dysfunction or a surgically significant disc herniation, Dr. Guarnaschelli advised against lumbar surgery.
Corbett filed a workers' compensation claim which was settled on May 16, 2008. Thereafter, he continued to work without restriction, but experienced ongoing low back pain. He regularly sought relief from various physicians, particularly his family physician, Dr. John K. Garner, who examined Corbett every six months and prescribed pain medication which fully controlled his symptoms. Notably, Corbett denied suffering any symptoms in his legs or feet following the 2006 injury.
In the present action, Corbett testified he sustained another injury during the course of his work as a warehouse foreman at Maker's Mark in mid-January of 2012. While removing barrels from a trailer, he felt a "pulling" in his low back—at a different level than experienced after the 2006 injury—coupled with the onset of a burning sensation going into his lower extremities and feet, particularly into the right leg. Corbett testified he informed his office manager and supervisor of the injuries the following day, and denied suffering any subsequent injury. Though he continued to work, Corbett's symptoms increased over time, and in March 2012 he transferred to less strenuous work as a guard, resulting in a significant reduction in his yearly income. On March 17, 2012, he ceased work at Maker's Mark altogether upon Dr. Garner's recommendation.
Corbett testified the work-related barrel lifting event occurred on either January 15 or 16, 2012. However, the parties stipulated a March 17, 2012, date of injury—apparently referencing the date Corbett's Application claimed a cumulative trauma injury became manifest. Our review of the record indicates March 17, 2012, was Corbett's last day of employment at Maker's Mark.
Corbett filed an Application for Resolution of Injury Claim (Application) on July 11, 2012. He alleged a condition in his lower back had become occupationally disabling on March 17, 2012, as a result of his job duties. In support, Corbett filed the August 8, 2012, report and questionnaire of Dr. Jerry W. Morris. Maker's Mark filed an independent medical examination (IME) report by Dr. Thomas M. Loeb dated November 27, 2012, and an IME from Dr. Michael M. Best dated April 12, 2012, together with medical records documenting Corbett's extensive history of treatment for low back symptoms.
The medical opinions expressed in Dr. Best's report primarily addressed the significance of the 2006 injury.
These medical records included those of Dr. Guarnaschelli, Dr. Garner, Dr. Charles H. Crawford, Dr. Lida M. Oxnard, Dr. Jeffrey A. Roberts, and Spring View Hospital.
Based on the totality of the evidence, particularly Corbett's testimony and Dr. Morris's opinions, the ALJ entered an opinion and order on December 17, 2012, finding: Corbett had sustained a cumulative trauma injury to his low back as a result of work activities performed while employed by Maker's Mark; Corbett's cumulative trauma injury had manifested itself as of March 17, 2012, his last day of work at Maker's Mark; Corbett had provided due and timely notice to Maker's Mark; Corbett had filed his Application within two years of injury; and Corbett was permanently and totally disabled as a result of his work-related cumulative trauma injury, with no preexisting disability or impairment. Accordingly, the ALJ awarded PTD benefits beginning on March 17, 2012, together with medical benefits.
On January 23, 2013, the ALJ issued a separate opinion and order overruling a petition for reconsideration filed by Maker's Mark and reaffirming his previous decision. However, the ALJ provided an additional finding that Corbett had reached maximum medical improvement (MMI) on April 5, 2012—based on Dr. Best's examination on the same date, and cited the medical opinion of Dr. Morris in support of his finding that Corbett had sustained a 10% impairment rating pursuant to the AMA Guides.
Maker's Mark appealed to the Board raising a myriad of arguments, but chiefly alleging the ALJ's findings relative to any cumulative trauma injury and award of PTD benefits were unsupported by substantial evidence. Maker's Mark argued the ALJ's reliance on Dr. Morris's opinions was misplaced, characterizing the opinions as unreliable, ambiguous, and non-probative evidence, and asserting the ALJ had misinterpreted and misapplied Dr. Morris's conclusions. Maker's Mark further argued the ALJ erred in finding Corbett had provided due and timely notice of a cumulative trauma injury, especially since Corbett's proof pertained only to a specific trauma injury. Finally, Marker's Mark argued the ALJ erred in awarding PTD benefits due to Corbett's failure to provide reliable medical evidence of any impairment rating pursuant to the AMA Guides for any work-related arousal of a preexisting dormant low back condition into disabling reality.
On May 24, 2013, the Board issued an opinion vacating the ALJ's opinion and orders of December 17, 2012, and January 23, 2013. The Board held the ALJ erred in finding Corbett had sustained a work-related cumulative trauma injury, in determining Corbett had provided due and timely notice of a cumulative trauma injury, and in awarding PTD benefits. The Board was convinced the record established Corbett suffered a specific trauma injury, if any, but not a cumulative trauma injury.
The Board noted Corbett had consistently attributed the onset of his current low back and lower extremity pain and limitations to the mid-January 2012 barrel-lifting incident, and had denied any prior or subsequent injury. The Board further noted Corbett's testimony regarding a specific trauma injury and immediate onset of increased or independent symptoms was consistent with medical histories he had reported to his treating physicians, including Dr. Morris, Dr. Loeb and Dr. Crawford. Moreover, the Board noted Corbett testified he had informed his office manager, Pat O'Bryan, and chief operations officer, Brian Mattingly, of the mid-January 2012 barrel-lifting incident.
Additionally, the Board noted the ALJ had found the opinions expressed by Dr. Morris to be "particularly credible, convincing and persuasive." Dr. Morris specifically diagnosed an acute strain of the lower back, particularly on the right; right-sided lumbar radiculopathy at the L4-L5 level; an aggravation of underlying degenerative joint disease and degenerative disc disease due to the reported barrel-lifting incident; and, a chronic narcotic-induced hypoanabolic state. Dr. Morris opined Corbett's complaints were "the direct results of the work-related injury," and indicated "the reaching and straining injury" was of "sufficient amount and duration to cause this harm to his human organism." Dr. Morris concluded any "underlying pain from previous injuries [had been] fully controlled with [prescription medication] for many years prior to this incident," and "[t]his was a distinct and new type of pain compared to anything that he had ever had before."
Based on this evidence, and citing the definition of "cumulative trauma injury" set forth in Special Fund v. Clark, 998 S.W.2d 487, 490 (Ky. 1999), the Board concluded,
Corbett's testimony and the various doctors' reports establish Corbett did not sustain a cumulative trauma injury; rather, he sustained a specific acute trauma injury in January 2012.The Board vacated the ALJ's findings that Corbett had discovered "a work-related gradual injury" on March 17, 2012, and timely filed a claim within two years. It held Corbett could neither have discovered nor provided notice of a cumulative trauma injury, and could not have filed a timely claim regarding a cumulative trauma injury within two years of its manifestation as required by KRS 342.185, because the evidence firmly established he had not suffered a cumulative trauma injury. Thus, the Board remanded to the ALJ for a determination of whether Corbett sustained a specific trauma injury in mid-January 2012; whether Maker's Mark had received due and timely notice of any such specific trauma injury; and, whether Corbett was entitled to an award of TTD benefits in relation to any such specific trauma injury.
Kentucky Revised Statutes.
The Board also vacated the ALJ's award of PTD benefits. It noted Dr. Morris's report and questionnaire pertained to an injury reportedly occurring on February 17, 2012, and indicated Corbett had not reached MMI relative to this work-related injury. Consistent with the prohibition in the AMA Guides on physicians assigning impairment ratings for conditions unless MMI has been reached, the Board noted Dr. Morris had assessed no impairment rating for Corbett's work-related injury. Even so, the Board determined Dr. Morris had assigned a 10% impairment rating for a preexisting dormant condition. The Board noted, however, that Dr. Morris failed to identify the specific condition, failed to opine the condition had been aroused into disabling reality by the work-related event, and failed to cite the chapter, table, and page of the AMA Guides upon which a 10% impairment rating could be based. Thus, the Board held the ALJ erred in awarding PTD benefits in reliance upon the unauthorized and unfounded 10% impairment rating purportedly assigned by Dr. Morris to an unspecified and unconnected preexisting dormant condition. In addition, the Board noted Dr. Best had not commented on any mid-January 2012 incident or any cumulative trauma injury, and Dr. Loeb had imposed no impairment related to any 2012 event. The Board therefore concluded:
AMA Guides, 5th Edition, Section 2.4 at p. 19.
the record does not support an award of PTD or PPD benefits as no impairment rating was assessed by any of the physicians in this case. . . . As previously discussed, Dr. Morris' opinions cannot constitute substantial evidence Corbett had a permanent impairment rating as a result of the cumulative trauma injury or an acute trauma injury.Citing Colwell v. Dresser Instrument Div., 217 S.W.3d 213, 217-18 (Ky. 2006), the Board vacated the ALJ's award of PTD benefits because PPD and PTD benefits require an impairment rating assigned pursuant to the AMA Guides Corbett timely petitioned this Court for review of the Board's decision.
See KRS 342.730(1)(a) and (b); KRS 342.0011(11)(b) and (c); KRS 342.0011(35); and KRS 342.0011(37).
Before this Court, Corbett raises two arguments. First, he argues the Board erred by determining he suffered a specific trauma injury, if any at all, and in vacating the ALJ's award of benefits to the extent it was based on the finding of a cumulative trauma injury. Second, he argues the Board erred in determining he failed to prove any permanent impairment rating pursuant to the AMA Guides and in vacating the ALJ's award of PTD benefits.
STANDARD OF REVIEW
The claimant in a workers' compensation proceeding bears the burden of proof and the risk of non-persuasion before the ALJ regarding each of the essential elements of his cause of action. Caudill v. Maloney's Department Store, 560 S.W.2d 15, 16 (Ky. 1977); Snawder v. Stice, 576 S.W.2d 276, 279 (Ky. App. 1979). If the claimant carries his burden and an adverse party appeals, the question on appeal is whether the decision is supported by substantial evidence; but, if the claimant fails to carry his burden and he himself appeals, the question becomes whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in his favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). "Substantial evidence" is defined as "evidence of substance and 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, 369 (Ky. 1971).
In rendering a decision, KRS 342.285 grants an ALJ—as fact-finder —sole discretion to determine the quality, character, and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). 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. Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000); Jackson v. General Refractories Co., 581 S.W.2d 10, 11 (Ky. 1979); Caudill, 560 S.W.2d at 16.
Further, an ALJ is vested with broad discretion to decide questions involving causation. Dravo Lime Co. v. Eakins, 156 S.W.3d 283, 289 (Ky. 2003). Where medical evidence is conflicting, the question of which evidence to believe is the exclusive province of the ALJ. Pruitt v. Bugg Brothers, 547 S.W.2d 123, 124 (Ky. 1977). Although a party may note evidence that would have supported a different outcome than that reached by the ALJ, such proof is an inadequate basis upon which to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (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, 643 (Ky. 1986).
Review of an ALJ's decision is limited to determining whether the findings made are so unreasonable under the evidence that they must be reversed as a matter of law. KRS 342.285; Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000). An appellate tribunal may not usurp the ALJ's role as fact-finder by superimposing its own appraisals of 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, 481-82 (Ky. 1999). The purpose of further appellate review in this Court "is to correct the Board only where the Court believes 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 Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1991). Thus, the standard of appellate review is whether there is "sufficient evidence of probative value to support the finding of the Board." Eaton Axle Corp. v. Nally, 688 S.W.2d 334, 336 (Ky. 1985).
ANALYSIS
A. CUMULATIVE TRAUMA INJURY VERSUS
SPECIFIC TRAUMA INJURY
Corbett initially argues the Board erred by reversing the ALJ's finding of a work-related, compensable cumulative trauma injury. We disagree.
Corbett asserts the Board usurped the ALJ's authority by determining no substantial evidence supported the ALJ's finding of a cumulative trauma injury, and further erred in holding Corbett had sustained a work-related specific trauma injury, if any at all. In support, Corbett asserts the Workers' Compensation Act (Act) does not distinguish between these two types of work-related injuries—in his view, the terms are merely descriptive and inconsequential, and an ALJ need only find a compensable injury as defined by the Act.
We reject Corbett's assertion that the ALJ's finding of a cumulative trauma injury was supported by substantial evidence. Our review of the record reveals the Board correctly determined the evidence established Corbett sustained no cumulative trauma injury, but instead may have suffered a specific trauma.
The record clearly establishes Corbett initially injured his low back on September 20, 2006; returned to regular work activities as a warehouse foreman at Maker's Mark; benefitted from ongoing medical treatment; and later sustained a second injury while lifting barrels in mid-January 2012. Though Corbett routinely engaged in heavy lifting activities over the course of his employment as a warehouse manager, he provided an unwavering history of these two separate, specific work-related injuries, and repeatedly testified his current symptoms arose from a specific trauma injury sustained while lifting barrels at Maker's Mark in mid-January 2012. His testimony is confirmed by histories recorded in various medical records and reports.
We further reject Corbett's assertion that an ALJ need not distinguish between specific and cumulative trauma injuries because these terms are merely descriptive and legally inconsequential under the Act. In pertinent part, KRS 342.0011(1) defines "injury" as:
any work-related traumatic event or series of traumatic events, including cumulative trauma, arising out of and in the course of employment which is the proximate cause producing a harmful change in the human organism evidenced by objective medical findings.By definition, a specific trauma injury arises from a particular, easily identifiable, work-related event, while a cumulative trauma injury results from often imperceptible, gradual, repeated or recurring, work-related mini-trauma events occurring over an extended period of time. Alcan Foil Products v. Huff, 2 S.W.3d 96, 100-01 (Ky. 1999); see also 82 Am. Jur. 2d Workers' Compensation § 314.
Contrary to Corbett's assertion, distinguishing whether a claimant has sustained a specific or a cumulative trauma injury impacts the date an injurious event is legally deemed to have occurred. Randall Co. v. Pendland, 770 S.W.2d 687, 688 (Ky. App. 1989); see also Hill v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky. 2001). In turn, the occurrence date triggers other statutory provisions related to timely notice and limitations periods, among others. Hill v. Sextet Mining Corp., 65 S.W.3d 503, 507 (Ky. 2001). Clearly, the distinction between a specific and a cumulative trauma injury has significant legal ramifications, and Corbett's assertion to the contrary is without merit.
For the foregoing reasons, we hold the Board correctly determined no substantial evidence supported the ALJ's finding Corbett had sustained a cumulative trauma injury. We further hold the Board correctly determined sufficient substantial evidence existed on which the ALJ could, on remand, find Corbett had sustained a mid-January 2012 specific trauma injury. Finally, we hold the Board correctly distinguished between a specific and a cumulative trauma injury due to important legal consequences arising from such a distinction.
B. PERMANENT IMPAIRMENT RATING
Corbett next argues the Board erred in determining he failed to submit substantial evidence of a permanent impairment rating and in vacating the ALJ's award of PTD benefits. Again, we disagree.
Corbett admits three points: no award of PPD or PTD benefits is authorized without a permanent impairment rating; the AMA Guides prohibit assignment of any impairment rating by a physician absent MMI; and Dr. Morris opined Corbett had not reached MMI as of August 8, 2012. Despite admitting these facts, Corbett argues Dr. Morris did assign an impairment rating, asserting:
[w]hen read in the entirety, it is quite clear by Dr. Morris' report that he believed that the Appellant had a 10% impairment, but he didn't list the impairment under question #4 on the Medical Questionnaire because he did not feel the Appellant was at MMI at the time. Rather, Dr. Morris listed the impairment under #4(a), but qualified it by stating that the 10% was the result of "marked change in pain & dysfunction with second injury."Corbett further contends:
[e]ssentially, Dr. Morris offered this as a procedural rating, in the event that the Appellant didn't receive the proposed treatment.According to Corbett, although Dr. Morris impermissibly assigned the purported "procedural" 10% impairment rating absent MMI on August 8, 2012, the impairment rating was legitimized when the ALJ exercised proper discretion in adopting Dr. Best's opinion that Corbett had reached MMI four months prior, on April 5, 2012.
Corbett's claim hinges on the proper interpretation of Dr. Morris's medical opinions. In a questionnaire submitted by Corbett, Dr. Morris provided answers to several important, targeted questions:
QUESTION 2. Dr. Morris responded "Yes" when asked, "Absent an injury history to the contrary, do you believe more likely than not that my client's work related injury brought the condition into a disabling reality[?]"
QUESTION 3. Dr. Morris responded "No" when asked, "Do you feel my client has reached medical maximum improvement?"
QUESTION 4. Dr. Morris responded "0" when asked, "In your medical opinion and based upon reasonable medical probability, what is my client's resulting degree of permanent partial functional disability or impairment[ ] according the AMA Guides 5th Edition?" QUESTION 4(a). Dr. Morris responded "10%" due to "Marked change in pain and dysfunction with second injury" when asked "If you feel it appropriate to apportion a part of my client's resulting functional
impairment to a pre-existing dormant condition, please identify and provide the percentage attributable to the pre-existing dormant condition."Thus, Corbett's questionnaire sought Dr. Morris's medical opinion regarding causation in Question 2, maximum medical improvement in Question 3, permanent impairment rating in Question 4, and apportionment of any portion of the impairment rating attributable to a preexisting dormant or active condition in Questions 4(a) and 4(b), respectively.
QUESTION 4(b). Dr. Morris responded "0% "—because Corbett "Was fully function (sic) with preexisting disease"—when asked, "If you feel it appropriate to apportion a part of my client's resulting functional impairment to a pre-existing active condition, how much and attributable to what active condition?"
Corbett's question creates confusion by incorrectly referencing "disability" interchangeably with "impairment" when the two terms are distinct, though interrelated, under both the KRS and AMA Guides, with the former being a decision made by an ALJ and the latter being a decision made by a physician. Because the question references the AMA Guides, we must conclude Corbett was seeking Dr. Morris's medical opinion regarding assignment of any permanent impairment rating. KRS 342.0011(35) defines a "permanent impairment rating" as "the percentage of whole body impairment caused by a work-related injury or occupational disease" as determined under the AMA Guides. KRS 342.0011(36) defines a "permanent disability rating" as "the permanent impairment rating selected by an administrative law judge times the factor set forth in the table that appears in KRS 342.730(1)(b). In Kentucky, occupational disability has been defined as "a decrease of wage earning capacity due to injury or loss of ability to compete to obtain the kind of work the employee is customarily able to do, in the area where he lives, taking into consideration his age, occupation, education, effect upon employee's general health of continuing the kind of work he is customarily able to do, and impairment or disfigurement." Com., Transp. Cabinet v. Blackburn, 890 S.W.2d 627, 628 (Ky. 1994). Thus, "disability" references occupational disability as distinguished from functional impairment. Cook v. Paducah Recapping Service, 694 S.W.2d 684, 687 (Ky. 1985). Likewise, the AMA Guides distinguishes between these two terms. "Impairment" is defined at page 601 as "[a] loss, loss of use, or derangement of any body part, organ system, or organ function," and page 9 explains an impairment evaluation "is only one aspect of disability determination," which "also includes information about the individual's skills, education, job history, adaptability, age, and environment requirements and modifications." A warning is provided at page 9 that the AMA Guides "is not intended to be used for direct estimates of work disability," since impairment ratings "derived according to the Guides criteria do not measure work disability," and it is therefore "inappropriate to use the Guides' criteria or ratings to make direct estimates of work disability." Conversely, "disability" is defined at pages 8 and 600 as the "[a]lteration of an individual's capacity to meet personal, social, or occupational demands or statutory or regulatory requirements because of an impairment," and being "contingent on the environmental conditions in which activities are performed."
Corbett admits Dr. Morris assigned a "0" impairment rating based on his opinion that Corbett required neurological evaluation and because the AMA Guides prohibited assignment of an impairment rating absent MMI. In a novel argument, however, Corbett then asserts the "10%" provided by Dr. Morris in response to Question 4(a) requesting an apportionment percentage for any preexisting dormant condition was intended "as a procedural[] [impairment] rating in the event Corbett didn't receive the proposed treatment." We reject this assertion.
By reference to a "procedural" impairment rating, we understand Corbett to mean the provisional or prospective expression of an impairment rating subject to, or conditioned or dependent upon, the occurrence or non-occurrence of some other event. Here, Corbett apparently contends Dr. Morris's expression of the alleged 10% "procedural" impairment rating for a preexisting dormant condition would become effective if further neurological evaluation and treatment he recommended were denied.
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Corbett cannot have it both ways. If the prohibition contained in the AMA Guides compelled Dr. Morris to assign a "0" impairment rating generally for Corbett's work-related conditions under Question 4, the same impediment would logically prevent Dr. Morris from assigning a 10% "procedural" impairment rating under Question 4(a) for any portion of Corbett's condition specifically attributable to a preexisting dormant condition. Because Dr. Morris opined Corbett had not reached MMI, the AMA Guides prohibited him from assigning any impairment rating for any of Corbett's conditions.
In addition, contrary to Corbett's novel assertion, Dr. Morris never characterized his "10%" response to Question 4(a) as a "procedural" impairment rating. He never conditioned his opinion that Corbett had not reached MMI on whether recommended neurological evaluation was provided. And, he never indicated he knowingly expressed an unauthorized and infirm 10% "procedural" impairment rating with the reasonable expectation or intention it would be legitimized and cured by a subsequent legal finding of MMI, whether based on another physician's contrary MMI opinion or non-provision of recommended treatment.
Further, Dr. Morris failed to cite the chapter, table, or page in the AMA Guides providing a basis for any assigned impairment rating. The lack of any such citation, together with Dr. Morris's opinion Corbett had not reached MMI and did not qualify for assignment of any permanent impairment rating under the AMA Guides, is further evidence Dr. Morris never intended his "10%" response to Question 4(a) to be characterized as a "procedural" impairment rating.
Finally, a literal reading of Question 4(a) demonstrates Corbett asked Dr. Morris for the percentage of any impairment rating arising under Question 4 attributable to a preexisting dormant condition. He asked for an apportionment percentage. He did not request a separate impairment rating. Thus, if Question 4(a), as worded by Corbett, is given its plain meaning, Dr. Morris simply opined 10% of the 0% impairment rating assignable to Corbett's work-related condition under Question 4 was attributable to a preexisting dormant condition. Of course, 10% of 0% is zero.
Thus, even if the AMA Guides authorized "procedural" impairment ratings, and even if the ALJ's adoption of Dr. Best's prior MMI opinion could allow an otherwise impermissible "procedural" impairment rating purportedly assigned by Dr. Morris, logic and a literal reading of Corbett's Question 4(a) demand that Dr. Morris's "10%" response be interpreted as an apportionment percentage, and not an impairment rating. We, therefore, hold the record establishes Dr. Morris assigned no permanent impairment rating. The Board, the ALJ, and both parties erred in treating Dr. Morris's statement of a "10%" apportionment percentage as an impairment rating. In the absence of any other impairment rating being offered by the remaining physicians, the Board correctly vacated the ALJ's award of PTD benefits.
Had we characterized Dr. Morris's answer as a "procedural" impairment rating, the Board correctly held the ALJ would nevertheless be prohibited from utilizing it to award PTD benefits. The most compelling reason offered by the Board was that Dr. Morris provided no basis for such an impairment rating by specifying a chapter, page, section, provision, or table in the AMA Guides.
Under Kentucky law, the AMA Guides are an integral tool for assessing a claimant's disability rating and monetary award. Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149, 154 (Ky. 2006). A physician's impairment rating is but one piece of the total evidence the ALJ must evaluate for quality, character, and substance, and, in the exercise of discretion, either accept or reject. Burton v. Foster Wheeler Corp., 72 S.W.3d 925, 929 (Ky. 2002). There is no requirement that an ALJ, as fact-finder, must necessarily accept an assessed impairment rating as true. Greene v. Paschall Truck Lines, 239 S.W.3d 94, 109 (Ky. App. 2007).
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 the proper assessment of impairment are medical questions solely within the province of medical experts for the purposes of assessing a claimant's disability. Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003); Lanter v. Ky. State Police, 171 S.W.3d 45, 52 (Ky. 2005). To be useful for the fact-finder as competent, substantial evidence, a physician's opinion must be grounded in the AMA Guides, and an ALJ may not give credence to an opinion of a physician assigning a permanent impairment rating that is not based upon the AMA Guides. Jones at 154. In order to utilize an impairment rating in the assessment of a claimant's disability rating and monetary award, an ALJ is required to determine whether the impairment rating was based upon the AMA Guides, and is authorized—though not compelled—to consult the AMA Guides when determining the weight and credibility to be assigned to the evidence. Caldwell Tanks v. Roark, 104 S.W.3d 753, 756-757 (Ky. 2003).
It stands to reason, therefore, citation by the medical expert to particular criteria set forth in the AMA Guides utilized to assign an impairment rating is a prerequisite for an ALJ's determination of the weight and credibility assignable to the impairment rating. Without such a foundation or basis, any impairment rating is dubious, unverifiable, and unreliable, and cannot constitute probative, substantial evidence to support an award of disability benefits.
CONCLUSION
Based on the foregoing, we affirm the Board's opinion.
KRAMER, JUDGE, CONCURS.
STUMBO, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Ched Jennings
Louisville, Kentucky
BRIEF FOR APPELLEE, MAKER'S
MARK DISTILLERY, INC.:
Stephanie L. Kinney
Louisville, Kentucky