GEORGE HUMFLEET MOBILE HOMES v. DENNIS CHRISTMAN; DONNA H. TERRY, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: DECEMBER 20, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001332-WC
GEORGE HUMFLEET MOBILE HOMES
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-00-96269
v.
DENNIS CHRISTMAN; DONNA H. TERRY,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM and HUDDLESTON, Judges.
HUDDLESTON, Judge:
George Humfleet Mobile Homes appeals from a
Workers’ Compensation Board decision which reversed an ALJ’s award
finding Dennis Christman not to be totally disabled.
Because
Christman has not filed a brief, we adopt Humfleet’s statement of
the facts and issues presented as correct:1
After reviewing the evidence, the ALJ concluded
that [Christman] was not totally disabled, relying on the
1
See Ky. R. Civ. P. (CR) 76.12(8)(c)(i).
opinions of Drs. [Russel] Travis and [Gregory] Snider.
Regarding
the
extent
and
duration
of
[Christman’s]
partial disability, the ALJ stated:
Utilizing the authority of an Administrative
Law Judge to select among competing expert
testimony,[2]
the
Administrative
Law
Judge
adopts the expert opinion of Drs. Travis that
Mr. Christman has sustained a 15% whole man
impairment
as
the
complaints
and
the
result
expert
of
his
opinion
cervical
of
Dr.
Templin of a 5% impairment for the lumbar
condition.
Judge
. . .
finds
that
The Administrative Law
none
of
the
impairment
ratings was active prior to January 26, 2000.
[] The ALJ therefore awarded benefits based on a 20%
impairment.
[Christman] subsequently filed a Petition for
Reconsideration in which he argued that it was error for
the ALJ to rely on the impairment rating of Dr. Travis
which was calculated under the 4th edition [of the
American Medical Association Guides to the Evaluation of
Permanent Impairment].
Christman argued that the ALJ
should have used the second (and higher) of the 5th
edition ratings provided by Dr. Templin. [Christman]
alleged that the lowest impairment rating for a cervical
2
Seventh Street Road Tobacco Warehouse v. Stillwell, Ky.,
550 S.W.2d 469 (1976).
-2-
condition that could be assessed under the 5th edition
Guides was 25%, hence the award should be based on a 30%
impairment.
The
ALJ
overruled
[Christman’s]
petition,
noting that [Christman] had not at any time objected to
the submission of Dr. Travis’s impairment rating.
The
ALJ stated that she was without authority to translate
Dr.
Travis’s
findings
with
regard
to
[Christman’s]
cervical condition into an impairment rating.
[Christman]
then
appealed
to
the
Workers’
Compensation Board. In an Opinion rendered May 22, 2002,
the Board held that the ALJ erred as a matter of law in
relying on the impairment rating of Dr. Travis.
The
Board held that in claims filed after the Commissioner of
the Department of Workers’ Claims certified the 5th
edition
of
the
Guides
as
being
“available,”
only
impairment ratings determined under the 5th edition may
be used, regardless of when the impairment rating was
made.
Humfleet’s main argument on appeal to this Court is that
in this instance, it was proper for the ALJ to rely on the
impairment rating assessed by Dr. Travis under the 4th edition of
the AMA Guides. In the alternative, Humfleet argues that the ALJ’s
decision was supported by substantial evidence, and therefore may
not
be
disturbed
on
appeal,
even
disregarded.
-3-
if
Dr.
Travis’
opinion
is
As a threshold matter, we must decide if it is proper to
review the allegation that the ALJ erred as a matter of law by
relying on Dr. Travis’ opinion, given that no objection was made by
Christman until after the ALJ’s award was issued.
Ordinarily, an
issue is not properly presented on appeal which has not been
initially presented to the trier of fact.3
However,
[w]orkers’ compensation is a creature of statute. As set
forth in [Kentucky Revised Statutes (KRS)] Chapter 342,
workers’
compensation
rather than judicial.
proceedings
are
administrative
Although the principles of error
preservation, res judicata, and the law of the case apply
to
workers’
compensation
proceedings,
they
apply
differently than in the context of a judicial action.
For
that
reason,
authority
based
upon
judicial
proceedings is not necessarily binding in the context of
proceedings under Chapter 342.4
* * *
The legislature has indicated that the standard
to be employed by the Board (and previously by the
circuit
court)
when
reviewing
workers’
compensation
awards includes a consideration of whether the award in
question conforms to the provision of the Act.[5] Since
January 4, 1988, KRS 342.290 [] has provided that the
scope of review by the Court of Appeals includes a
3
See CR 76.12(4)(c)(v).
4
Whittaker v. Reeder, Ky., 30 S.W.3d 138, 143 (2000).
5
Ky. Rev. Stat. (KRS) 342.285(2)(c).
-4-
consideration of all matters subject to review by the
Board and errors of law arising before the Board . . . .
In Muncy v. Muncy,[6 Kentucky’s highest court] determined
that whether an award conformed to the Act was a question
of law which a court should review without regard to
whether it was contested by a party.
Subsequently, in
Schaab v. Irwin,[7 the Court] construed KRS 342.285(2)(c)
and KRS 342.290 as placing a duty on a reviewing court to
determine whether an award was in conformity with the Act
even if the question first arose there.8
In the case before us, the primary question is whether or
not
the
ALJ’s
award
conformed
to
the
requirement
in
KRS
342.730(1)(b) that the award be determined using the “latest
edition available” of the AMA Guides. Therefore, it was proper for
the Board to rule on the issue, as it is likewise proper for us to
decide.
KRS
342.730(1)(b)
requires
that
an
ALJ’s
award
be
determined with respect to the “latest edition available” of the
Guides.
That
language
refers
to
the
edition
of
the
Guides certified by the Commissioner of the Department of Workers’
Claims as being generally available at the time of the ALJ’s award.
In
this
case,
the
fifth
edition
had
been
certified
by
the
commissioner as generally available prior to the ALJ’s award.
6
242 Ky. 190, 45 S.W.2d 1034 (1932), overruled on other
grounds by Carnahan v. Yocom, Ky., 526 S.W.2d 301, 303 (1975).
7
298 Ky. 626, 183 S.W.2d 814 (1944).
8
Reeder, supra, n. 4, at 144.
-5-
Accordingly, when the ALJ determined Christman’s partial
disability, she did so using an impairment rating determined under
the fourth edition of the Guides.
While this action is not wholly
unreasonable under the unique chronology of this case, it was
improper under the plain language of KRS 342.730(1)(b), which
mandates that an award be determined using the latest edition of
the Guides available at the time of the award.
Board,
and
remand
to
the
ALJ
for
We affirm the
re-evaluation
using
only
impairment ratings determined under the fifth edition of the AMA
Guides.
Humfleet’s
argument
that
the
ALJ’s
decision
is
not
supported by substantial evidence lacks sufficient merit to warrant
an elaborate discussion.
Essentially, Humfleet argues that there
was other evidence in the record to support a 15% impairment rating
under the fifth edition of the Guides.
While that testimony may
indeed be in the record, the ALJ did not make a finding as to its
credibility or reliability.
The Board’s decision is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Carl M. Brashear
HOSKINS LAW OFFICES PLLC
Lexington, Kentucky
-6-
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