SILVERADO TRUCKING, INC. v. MITCHELL K. FARLER; JOHN B. COLEMAN, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: April 19, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2001-CA-002346-WC
SILVERADO TRUCKING, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-98-62688
v.
MITCHELL K. FARLER;
JOHN B. COLEMAN,
Administrative Law Judge; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; COMBS and HUDDLESTON, Judges.
HUDDLESTON,
Judge:
Silverado
Trucking,
Inc.
appeals
from
a
Workers’ Compensation Board opinion affirming an Administrative Law
Judge’s opinion and award finding that Mitchell K. Farler has a 60%
permanent partial disability and ordering Silverado to compensate
him
by
paying
his
average
weekly
wages
for
520
weeks,
his
reasonable and necessary medical expenses and the costs associated
with his vocational rehabilitation evaluation.
Silverado argues
that the ALJ and the Board erred in relying on an impairment rating
provided by Dr. John W. Gilbert, Farler’s treating physician,
because he failed to comply with the American Medical Association
(AMA)
Guidelines
when
evaluating
Farler’s
work-related
spinal
injuries.
On June 18, 1998, Farler sustained injuries to his lower
back, neck and right shoulder when the coal truck he was driving
overturned.
Although Farler testified that he experienced pain in
those areas immediately, he did not visit a hospital until the
following morning at which time he was treated and released.
Farler never returned to work for Silverado, but did make
an unsuccessful attempt to work for a different employer in the
same capacity in December 1998.
He worked for only one week and
then quit as he was unable to tolerate sitting for the number of
hours required to perform the job.
Farler has not worked since
then
social
and
is
currently
receiving
security
disability
benefits.
At the time of his injury, Farler was 37 years old (he
is currently 41 years of age).
He has a ninth grade education and
has
or
received
no
specialized
vocational
training
with
the
exception of a sixteen-week training course in simulated coal
mining.
For the most part, his employment history consists of
driving coal trucks for various employers, although he has also
worked as a security guard, general laborer and lumber stacker.
Following his release from the hospital, Farler sought
treatment from Dr. Thomas Gross, a chiropractor, who prescribed
therapy.
Noting Farler’s lack of improvement, Dr. Gross referred
his patient to Dr. Gilbert, Farler’s current treating physician.
Farler was first seen by Dr. Gilbert on February 24, 1999, for an
-2-
initial consultation, at which time he complained of pain in his
right leg, both arms and head.
After obtaining a medical history,
conducting a thorough medical examination and reviewing Farler’s
MRI results, Dr. Gilbert diagnosed HNP cervical spine, cervicalgia,
nerve root injury to both the lumbar and cervical spine, muscle
spasms, insomnia, mild anxiety, numbness and tingling.
He then
reviewed the risks and benefits of both surgical and nonsurgical
options with Farler and his family, ordered a cervical discogram,
recommended
a
functional
capacity
evaluation
and
gave
Farler
information about vocational rehabilitation.
On August 12, 1999, Dr. Gilbert performed an anterior
cervical discectomy and fusion with instrumentation from C5 to C7.
Subsequently, Dr. Gilbert reported that Farler’s neck and arm pain
had been substantially resolved with only residual pain remaining.
Initially, Dr. Gilbert prescribed conservative therapy.
However,
Dr. Gilbert later noted that Farler’s back pain had worsened and
disability
benefits
were
a
reasonable
alternative
as
he
was
suffering from chronic pain in his neck and back and was taking
controlled substances1 for related difficulties which limited his
ability to think clearly and operate machinery.
Dr. Gilbert
delayed any diagnostic or therapeutic intervention in order to
adequately monitor Farler’s post-operation recovery.
On
July
19,
2000,
Dr.
Gilbert
completed
a
medical
assessment of Farler, finding that he had a 30% impairment rating
pursuant to the Range of Motion (ROM) Model, Table 75, page 113, of
1
At the hearing before the ALJ, Farler testified that he was
taking Lortab 10 twice a day, Soma twice a day, Ultram (a pain
medication), and Elavil at night to help him rest.
-3-
the AMA Guides.
for
utilizing
None of Dr. Gilbert’s records reflect his reason
the
range
of
motion
model
as
opposed
to
the
Diagnostic Related Estimates (DRE) model.
In his assessment, Dr. Gilbert diagnosed Farler with
cervical and lumbar spine injuries and “strain,” muscle spasms,
anxiety, insomnia and cervical and lumbar pain that radiates into
his right arm and leg.
certain
functional
As a result, Dr. Gilbert indicated that
limitations
were
appropriate.
Farler
was
restricted to carrying or to lifting no more than ten pounds, to
standing
or
to
walking
less
than
thirty
minutes
without
interruption or a total of three hours in an eight-hour day and to
sitting less than thirty minutes without interruption or less than
four hours in an eight-hour day.
Farler
was
precluded
from
In Dr. Gilbert’s estimation,
climbing,
crouching,
kneeling
or
crawling.
At
the
request
of
Farler’s
attorney,
Muckenhausen evaluated Farler on October 12, 2000.
Dr.
Christa
She diagnosed
him as having “status post neck and low back strain, secondary to
work
related
injury
on
6-17-98,
with
subsequent
surgical
intervention and residual cervical and lumbosacral radiculopathy,”
as well as headaches, “mechanical type,” and anxiety, depression
and sleep disturbance “in context with pain,” dating back to the
injury.
Ultimately, Dr. Muckenhausen, also using the ROM model,
concluded that Farler had a 39%2 whole body impairment, with 20%
2
The 39% rating is referenced by the ALJ. However, in the
“Impairment” section of her report, Dr. Muckenhausen separately
lists two different percentages under the heading of “total
combined value,” 39% and 43%, and initially indicates that Farler’s
(continued...)
-4-
attributable to the lumbar spine condition and 24% to the cervical
spine
condition.
She
also
indicated
that
one-half
of
the
impairment would be attributable to the arousal of a pre-existing,
dormant, non-disabling osteoarthritic condition and that he did not
have an active impairment prior to the injury.
As to functional
restrictions, Dr. Muckenhausen’s findings were consistent with
those of Dr. Gilbert in that she felt Farler should lift a maximum
of twenty pounds or ten pounds frequently and that he should stand
or sit less than three hours in an eight-hour period.
Dr.
Muckenhausen also failed to offer any explanation of her reason for
using the range of motion model rather than the DRE model.
In addition to the medical evidence summarized above, the
ALJ also considered the report of Dr. Russell Travis who examined
Farler at the request of Silverado on May 4, 2000.
According to
Dr. Travis, Farler has an impairment of between 5 and 15% as a
result of his cervical spine condition, depending on whether he
truly
had
reviewing
radiculopathy
Farler’s
prior
medical
to
the
records
fusion
and
surgery.
x-rays,
Dr.
After
Travis
determined that Farler had an essentially normal cervical discogram
in April 1999 and found no evidence of a herniated disc or nerve
root/foraminal encroachment.
He was also of the opinion that
Farler demonstrated significant symptom magnification.
As he
determined that there was a lack of objective findings with regard
to Farler’s lower back, Dr. Travis assessed a 0% impairment for
that condition.
In Dr. Travis’s opinion, confirming imaging
2
(...continued)
classification impairment is 41-44%.
-5-
studies
should
have
been
performed
in
accordance
with
the
recommendations of the American Academy of Orthopaedic Surgeons
before any surgical recommendation was made by Dr. Gilbert.
Dr.
Travis used the DRE model in assigning an impairment rating to
Farler.
Dr. Bart Goldman examined Farler on December 14, 2000, at
Silverado’s request.
Consistent with Dr. Travis’s determinations,
Dr. Goldman placed Farler in Cervicothoracic DRE category II with
a 5% permanent partial impairment rating. Reportedly giving Farler
the benefit of the doubt as to his lumbar spine, Dr. Goldman placed
him in Lumbosacral DRE category II with a 5% permanent partial
rating.
Although Dr. Goldman performed a functional capacity
evaluation, he deemed the results invalid due to the fact that
Farler’s efforts were “less than maximal” and “inconsistent.”3
After summarizing the medical evidence and reviewing the
relevant legal principles, the ALJ concluded that Farler’s current
disability was directly and proximately caused by his work-related
injury of June 1998 and, possibly, his subsequent treatment.
He
determined that any partial or total disability stemmed from the
work injury and/or later events as opposed to any pre-existing
condition
or
the
aging
process.
Noting
that
Farler
was
“a
believable and credible witness at the hearing,” the ALJ concluded
3
Two vocational witnesses also testified at the hearing in
regard to Farler’s employability. As their testimony is not at
issue, it suffices to say that Dr. Crystal found that Farler would
be precluded from employment due to the restrictions imposed by Dr.
Gilbert and Dr. Muckenhausen while Dr. Conte, in contrast, relied
on the findings of Dr. Travis and Dr. Goldman as a basis for his
conclusion that Farler would be capable of returning to a wide
variety of employment.
-6-
that the “objective medical evidence is less than impressive” with
the exception of the fact that Farler did actually have a multilevel fusion in his cervical spine.
education
and
employment
history
Considering Farler’s age,
along
with
the
medical
restrictions and objective medical evidence, the ALJ was not
convinced that Farler was permanently and totally disabled with
respect to finding employment as a result of his injuries.
Based
on the evidence in its entirety, the ALJ agreed that the correct
impairment rating for Farler’s lumbar and cervical injuries is 30%
as found by Dr. Gilbert and concluded that Farler has a 60%
permanent partial disability based upon that impairment rating when
read in conjunction with Kentucky Revised Statutes (KRS) 342.730.
As the medical restrictions recommended by Dr. Gilbert and Dr.
Muckenhausen
preclude
Farler
from
returning
to
his
previous
employment, the ALJ multiplied the 60% permanent partial disability
by a factor of 1.5.
In a petition for reconsideration, Silverado asked the
ALJ to reconsider his reliance on Dr. Gilbert’s impairment rating
as it was not in compliance with the AMA Guides, the 4th edition of
which expresses a preference for the DRE model in impairment
assessments, such as the one at issue, involving the spinal column.
In the alternative, Silverado argued that even if Dr. Gilbert was
permitted to use the ROM model, he did so incorrectly.
The ALJ
denied this request without further explanation as to his reasoning
for accepting the impairment rating offered by Dr. Gilbert.4
4
The ALJ amended the original award to reflect that
temporary total disability benefits were payable from June 19,
(continued...)
-7-
Silverado appealed to the Board which, in affirming the
ALJ’s decision, reasoned that:
impairment
rating
is
in
“So long as a physician states his
accordance
with
the
AMA
Guides,
any
challenge to that assessment is an issue of weight and credibility
which is exclusively within the province of the ALJ.”
The proper
procedure for challenging a physician’s AMA rating, the Board said,
is to either take his deposition or offer the opinion of another
physician as to whether that doctor erred in calculating his
impairment, leaving the decision as to which opinion is the most
persuasive to the ALJ.
the
Board
concluded
As neither of those methods was utilized,
that
Dr.
Gilbert’s
rating
constitutes
substantial evidence of probative value upon which the ALJ could
properly base his decision.
Silverado’s appeal to this Court
challenges that determination.
In a workers’ compensation action, the employee bears the
burden of proving every essential element of a claim.5
As the
fact-finder, the ALJ has the responsibility to determine the
quality, character and substance of the evidence and may draw all
reasonable inferences from it.6
Likewise, the ALJ has the sole
authority to determine the weight to be afforded the testimony of
4
(...continued)
1998, through May 4, 2000, with the exception of the period from
July 3, 1998, through September 21, 1998.
Permanent partial
disability benefits were to begin on May 5, 2000.
5
Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 96 (2000).
6
Id.; Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d
418, 419 (1985).
-8-
a particular witness.7
In his role as the fact-finder, the 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.8
When the decision of the fact-finder is in favor of the
party with the burden of proof (in this case, Farler), the issue on
appeal is whether the ALJ’s decision is supported by substantial
evidence, that is, evidence of substance and relevant consequence
having the fitness to induce conviction in the minds of reasonable
people.9
A party challenging the ALJ’s factual findings (in this
case, Silverado) must do more than present evidence supporting a
contrary conclusion to justify reversal.10
When reviewing the
Board’s decision, our function as an appellate court is limited to
correcting the Board only where we perceive 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.”11 Thus, the sole issue on appeal is whether
the ALJ’s decision is supported by substantial evidence in light of
the fact that he relied on Dr. Gilbert’s impairment rating and the
7
McCloud v. Beth-Elkhorn Corp., Ky., 514 S.W.2d 46 (1974);
Magic Coal Co., supra, n. 5, at 96.
8
Caudill v. Maloney’s v. Discount Stores, Ky., 560 S.W.2d
15, 16 (1977); Magic Coal Co., supra, n. 5, at 96.
9
Special Fund v. Francis, Ky., 708 S.W.2d 641 (1986); Magic
Coal Co., supra, n. 5, at 96.
10
Ira A. Watson Dep’t Store v. Hamilton, Ky., 34 S.W.3d 48,
52 (2000).
11
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687
(1992).
-9-
physician failed to document his reasons for using the ROM model or
indicate that he complied with its directives.
Pursuant to KRS 342.730, impairment ratings must be
determined in accordance with the AMA Guides to the Evaluation of
Permanent Impairment, latest edition available.
At the time the
impairment ratings in the present case were made, the most current
edition was the fourth.
According to Chapter 3, section 3.3 of
that edition, an evaluator assessing the spine should use the
Injury Model if the patient’s condition is one of those listed in
Table 70.
If none of the eight categories found in the injury
model is applicable, then the evaluator should use the ROM model.
According to the commentary following section 3.3, past
editions of the AMA Guides used a system based on assessing the
degree of spine motion and assigning impairment percentages based
on limitations of motion.
edition,
two
approaches
However, beginning with the fourth
were
adopted.
One
component,
which
encompasses patient’s traumatic injuries, is called the Injury
Model
and
it
involves
assigning
a
patient
to
one
of
eight
categories, such as minor injury, radiculopathy, etc. on the basis
of objective medical findings.
the
other
editions.
component,
The range of motion (ROM) model is
described
and
recommended
in
previous
If disagreement exists about how a given impairment
should be categorized under the injury model, then the ROM may be
consulted to provide evidence on the question.
By way of further explanation, the procedures outlined
in section 3.3 provide that the physician should use the ROM model
as a differentiation if he cannot place the patient into an
-10-
impairment category, or if disagreement exists about which of two
or three categories is correct for the patient.
for
the
injury
or
DRE
model
is
reiterated
This preference
in
the
“Medical
Assessment of Ability to do Work-Related Activities (Physical),”
completed by Dr. Gilbert which contains a note indicating that the
DRE model should be utilized “unless another method is authorized
by the Guides.”
Beneath that instruction, Dr. Gilbert completed
the provided chart indicating that he referenced “Table 75, page
113" in assessing Farler’s degree of impairment. Noticeably absent
from Dr. Gilbert’s report is an explicit justification for his
decision to utilize the ROM model in lieu of the DRE model.
In the
event that Table 75 is used, there are specific instructions to be
followed.12
There is no evidence that Dr. Gilbert met those
requirements.
Silverado argues that the ALJ erred in adopting Dr.
Gilbert’s impairment rating as his failure to specify reasons for
preferring the ROM model in this instance and to supply a figure 80
to document his calculations makes it impossible to determine how
he arrived at a percentage of impairment for Farler.
support
12
for
its
argument
that
Dr.
Gilbert’s
rating
In further
does
not
The instructions are as follows:
1) Identify the significant impairment of the primarily
involved region.
2) The diagnosis-based impairment estimates and percents
shown above should be combined with range of motion impairment
estimates and with whole-person impairment estimates involving
sensation, weakness, and conditions of the musculoskeletal,
nervous, or other organ systems.
3) List the diagnosis-based, range of motion, and other
whole-person impairment estimates on the Spine Impairment
Summary Form (Fig. 80, p. 134).
-11-
constitute substantial evidence to support the ALJ’s findings,
Silverado contends that there is no evidence Dr. Gilbert took range
of motion measurements after February 24, 1999, and before he
assigned a rating to Farler on July 19, 2000, meaning he did so
without performing range of motion testing. However, this argument
is unpersuasive as Dr. Gilbert’s notes explicitly reflect that he
reviewed Farler’s chart before determining that certain information
remained unchanged, including that aspect of Farler’s condition.
Such a conclusion necessarily requires an evaluation; there is no
requirement that a doctor restate his previous findings verbatim in
order to substantiate his determination that an earlier finding is
still valid. An acknowledgment such as the one here is sufficient.
As a final basis for its contention that Dr. Gilbert’s
impairment rating is improper, Silverado emphasizes that there is
no indication Dr. Gilbert had trouble placing Farler within a DRE
category or that he used the ROM model to place him within a DRE
category as required by the AMA Guides.
Because we agree with the Board’s reasoning as to these
arguments and its resolution of the dispositive issue, we adopt the
following portion of its opinion as our own:
[W]hile the DRE model is to be used in most
spine related injuries, there are exceptions.
The AMA
Guides emphasize they are to be used and interpreted by
physicians in conjunction with the physician’s experience
and examination. While it would have been better for Dr.
Gilbert to have first attempted to put Farler’s condition
in a DRE category, we cannot say as a matter of law the
-12-
ALJ erred in relying upon Dr. Gilbert’s impairment rating
because he went directly to the range of motion model
without stating his reasons for doing so.
Under the 4th
Edition of the AMA Guides, in instances where there are
multiple diagnoses affecting multiple levels, the range
of motion model is an acceptable method.
We would also
note the 5th Edition of the AMA Guides published shortly
before the ALJ rendered his decision specifically states
the range of motion model should be used if there is
multilevel
involvement
and/or
alteration
of
motion
segment integrity in the same spinal region.
While
Silverado has offered its arguments as to the propriety
of Dr. Gilbert using the range of motion model, there is
no medical opinion of record challenging his impairment
rating.
We believe Dr. Gilbert’s impairment rating
constitutes substantial evidence of probative value upon
which the ALJ could choose to base his determination.
The Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Amanda A. Young
Joy D. Denton
HARNED, BACHERT & DENTON, LLP
Bowling Green, Kentucky
Monica Rice Smith
Edmond Collett
John Hunt Morgan
EDMOND COLLETT, P.S.C.
Hyden, Kentucky
-13-
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