Opinion
NO. 2018-CA-001055-WC
12-21-2018
CRACKER BARREL APPELLANT v. VICKI MCMICHAEL JORDAN; HON. MONICA RICE-SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Scott M. B. Brown Lexington, Kentucky BRIEF FOR APPELLEE VICKI MCMICHAEL JORDAN: Wayne C. Daub Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. 16-WC-93188 OPINION
AFFIRMING IN PART AND REVERSING IN PART
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BEFORE: COMBS, D. LAMBERT AND SMALLWOOD, JUDGES. SMALLWOOD, JUDGE: Cracker Barrel appeals from an opinion of the Workers' Compensation Board affirming in part, vacating in part and remanding an opinion, order and award rendered by Hon. Monica Rice-Smith, Administrative Law Judge ("ALJ"). Cracker Barrel argues that Dr. Jeffrey Fadel's impairment rating cannot form the basis of a Permanent Partial Disability ("PPD") award because he disregarded the express terms of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (hereinafter referred to as "AMA Guides"). It also argues that the Workers' Compensation Board improperly rejected the finding of ALJ Rice-Smith that Vicki McMichael Jordan's impairment arose after surgery. For the reasons stated below, we AFFIRM IN PART and REVERSE IN PART the opinion on appeal.
Judge Gene Smallwood authored this opinion prior to the expiration of his term of office. Release was delayed by administrative handling.
Jordan began working for Cracker Barrel as a waitress in 2013. On September 25, 2015, and during the course of her employment, she slipped on a tea urn lid and fell to the floor. Jordan immediately experienced pain in her right hip and leg. She finished her shift at the restaurant and sought treatment at the Immediate Care Center the following day. Jordan followed up with her primary care physician, Dr. Richard Larson, and later received an injection, physical therapy, and an MRI. Ultimately, Jordan was referred to Dr. Samuel Carter.
On August 8, 2016, Dr. Carter diagnosed a partial tear of the right gluteus tendon, and she underwent surgery on October 5, 2016. Jordan continued to work at Cracker Barrel from the date of her injury until shortly before the time of surgery.
Jordan testified that her hip hurts constantly. She uses a cane, which was not prescribed, and Dr. Carter told her to continue using it if she found it helpful. Jordan takes medication, does exercises of the affected area, and has developed chronic low back pain. After filing a Form 101, Jordan received temporary total disability ("TTD") benefits at the rate of $160.93 per week from February 23, 2016, to March 10, 2016, and from October 5, 2016, to April 19, 2017, for a total of $4,873.88. Cracker Barrel paid Jordan's medical expenses in the amount of $25,333.98. A benefits review conference was held on November 14, 2017, and Jordan testified at a formal hearing on December 4, 2017.
The matter proceeded before ALJ Rice-Smith, where the parties raised several issues including benefits per Kentucky Revised Statute (KRS) 342.730, physical capacity to return to work at the time of injury, TTD, permanent total disability ("PTD"), credit for unemployment benefits and alleged overpayment of TTD. Evidence was adduced that Dr. Jeffrey Fadel diagnosed chronic tendinitis of the gluteus medias and minimus tendons of the right hip, which he believed was caused by the September 25, 2015 work injury. Dr. Fadel assigned a 20% impairment and found that maximum medical improvement ("MMI") occurred in April 2017. Dr. Fadel's 20% impairment rating was based in part on Jordan's frequent use of a cane in her daily living. He does not believe that Jordan will be able to return to her previous form of employment. Other evidence was tendered, including medical treatment reports of Norton Spine Specialists and Cracker Barrel's independent medical report prepared by Dr. Rick Lyon dated September 13, 2017. Dr. Lyon opined that Dr. Carter's treatment protocol of Jordan was reasonable, and he assessed a 4% whole person impairment. Dr. Lyon believed that Jordan could perform a sedentary to light duty job.
ALJ Rice-Smith rendered an opinion, order and award on February 2, 2018, finding in relevant part that Jordan sustained a 20% whole body impairment. In so doing, the ALJ found that Jordan was "credible in every aspect of her testimony." The ALJ accepted Dr. Fadel's 20% whole person impairment and noted Dr. Fadel's explanation that Jordan's symptoms were consistent with chronic tendinitis around her right hip with an abnormal gait. ALJ Rice-Smith went on to find that Jordan is not able to return to the work she was performing at the time of the injury, and that she is entitled to the three multiplier with the .2 enhancement based on Jordan's age. ALJ Rice-Smith awarded TTD and PPD benefits as well as medical benefits but found that Jordan was not entitled to PTD benefits.
Both parties appealed to the Board. Cracker Barrel argued that the ALJ was precluded from relying on Dr. Fadel's 20% impairment rating since his methodology disregarded the AMA Guides. Jordan maintained that the ALJ erred in starting the award of PPD benefits on March 31, 2017, instead of the date of injury on September 25, 2015. The Board determined that Dr. Fadel's opinion constituted substantial evidence, and thus affirmed the ALJ's opinion on that issue; however, the Board vacated the PPD award, and remanded the matter to the ALJ to begin the award of PPD benefits on the date of the injury, suspended by any periods of TTD benefits. Both parties' petitions for reconsideration were denied, and this appeal followed.
Cracker Barrel now argues that the Board erred in sustaining the ALJ's conclusion that Dr. Fadel's opinion constitutes substantial evidence in support of a 20% whole body impairment. The focus of Cracker Barrel's argument on this issue is that Dr. Fadel's impairment for gait derangement (i.e., Jordan walking in a non-normative manner and/or limping with the usage of a cane) does not conform to the mandate of the AMA Guides. Since compliance with the AMA Guides is mandatory, Cracker Barrel asserts that Dr. Fadel's opinion cannot form the basis for a PPD award.
The ALJ, as fact-finder, may judge the weight and credibility of the evidence. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). So long as an ALJ's ruling is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). The proper interpretation of the AMA Guides is a medical question solely within the province of medical experts. Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003). Where the medical opinions are conflicting as to impairment ratings, it is the ALJ's function as fact-finder to select the rating upon which disability benefits will be awarded. Knott County Nursing Home v. Wallen, 74 S.W.3d 706, 710 (Ky. 2002). The ALJ may properly determine the weight and character of the medical testimony and draw reasonable inferences therefrom. Id.
AMA Guides 17.2(c) states that an impairment rating due to gait derangement should be supported by pathological findings, and that percentages given in Table 17-5 allow for a 20% impairment rating when the claimant "requires routine use of a cane[.]" While this section also states that evaluators should use a more specific method whenever possible, the gait derangement method will suffice if a written rationale is included in the report.
In considering this matter, the Board determined that the ALJ acted within her discretion by weighing the conflicting opinions and choosing to rely on that of Dr. Fadel. Drs. Lyon and Fadel offered different impairment ratings; however, Dr. Fadel's opinion was given in accordance with the AMA Guides, which allow for an assessment of gait derangement so long as a rationale is provided. Dr. Fadel provided such rationale by relying on Jordan's pathology, medical history, and credible statements of pain which limited her ability to walk, lift, and work. We find no error in the Board's conclusion on this issue and affirm.
Cracker Barrel goes on to argue that the Board erred in ruling that PPD must begin on September 25, 2015, the date of injury. It maintains that the Board improperly usurped the ALJ's finding of fact that Jordan had no impairment or disability until after the surgery on October 5, 2016. Cracker Barrel directs our attention to Sweasy v. Wal-Mart Stores, Inc., 295 S.W.3d 835 (Ky. 2009), upon which the Board relied in concluding that PPD must begin on the date of injury. It argues that Sweasy instead requires PPD to begin on the date that impairment and disability arise. As Jordan continued to work at Cracker Barrel after the injury, and without the use of a cane, Cracker Barrel asserts that impairment and disability arose post-surgery after which time Jordan could no longer work.
We find persuasive Cracker Barrel's argument on this issue. Sweasy does not require PPD to commence on the date of injury, but rather on the date that impairment and disability arise. The Court stated that,
. . . we turn to the question of when permanent impairment or disability arises for the purpose of commencing partial disability benefits.
A condition "arises" when it comes into being, begins, or originates. Thus, impairment arises for the purposes of Chapter 342 when work-related trauma produces a harmful change in the human organism. That usually occurs with the trauma but sometimes occurs after a latency period. In either circumstance the authors of the American Medical Association's Guides to the Evaluation of Permanent Impairment consider the amount of impairment that remains at MMI to be "permanent." The fact that they direct physicians to wait until MMI to assign a permanent impairment rating does not alter the fact that the permanent impairment being measured actually originated with the harmful change. We conclude, therefore, that the compensable period
for partial disability begins on the date that impairment and disability arise, without regard to the date of MMI, the worker's disability rating, or the compensable period's duration.Sweasy, 295 S.W.3d at 839-40 (emphasis in original, emphasis added, and footnote omitted).
There is little or no evidence that Jordan's disability arose at the time of injury. Jordan worked without restrictions from the date of injury, September 25, 2015, until near the date of surgery, October 5, 2016, and without the use of a cane. Sweasy recognizes that impairment and disability do not necessarily commence at the time of injury, but "sometimes occurs after a period of latency." Id. ALJ Rice-Smith relied on the medical evidence to conclude that Jordan's impairment and disability did not arise until she reached MMI, which was well after the date of injury. This conclusion is supported by the record and the law. Because Sweasy does not require a finding that PPD must commence on the date of the injury, and as substantial evidence supports the ALJ's award of PPD benefits beginning on March 31, 2017 (i.e., the date that the ALJ found Jordan attained MMI), we conclude that the Board's determination that PPD benefits must commence on the date of injury was erroneous.
The Board notes on p. 17 of its opinion that the ALJ, in her order on petition for reconsideration, confused matters by ruling that Jordan was entitled to permanent total disability beginning on March 17, 2017. We conclude from the totality of the record that the ALJ misspoke and intended to say permanent partial disability. --------
For the foregoing reasons, we REVERSE the opinion of the Workers' Compensation Board as to its conclusion that PPD benefits must commence on the date of injury, but in all other respects AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Scott M. B. Brown
Lexington, Kentucky BRIEF FOR APPELLEE VICKI
MCMICHAEL JORDAN: Wayne C. Daub
Louisville, Kentucky