DTL Board Opinion Template

OPINION ENTERED:? MAY 28, 2003

CLAIM NO. 01-90688

SHEILA SLONE?????????????????????????????????????????????????????????????????????????????????????????? PETITIONER

vs.?????????????????????????????? APPEAL FROM HON. J. KEVIN KING,

???????????????????????????????????????? ADMINISTRATIVE LAW JUDGE

UNIVERISTY OF KENTUCKY MEDICAL CENTER

and HON. J. KEVIN KING,

ADMINISTRATIVE LAW JUDGE?????????????????????????????????????????????????????? RESPONDENTS

AFFIRMING

* * * * * * * * * * * *

??????????? BEFORE:???? LOVAN, Chairman, STANLEY and GARDNER, Members.

LOVAN, Chairman.???? Sheila Slone (?Slone?) appeals from the decision of Hon. J. Kevin King, Administrative Law Judge (?ALJ?), and from the ALJ?s order ruling on her petition for reconsideration.? The ALJ determined he could not award permanent partial disability benefits because he could not determine an impairment rating.?

??????????? Slone was employed by the University of Kentucky Medical Center (?UK?) as a registered nurse.? On December 27, 2000, while attempting to hold a 250-pound patient, she felt like she lost control of her bladder and bowels and, after setting the patient down, discovered she had suffered a prolapsed uterus.? Slone ultimately underwent a hysterectomy and surgery to repair her rectum and bladder.? She is now employed as a charge nurse at St. Joseph Hospital.? She testified she experiences symptoms of menopause and sexual dysfunction.? She has a rectocele and will eventually require additional surgery.? She also reported frequent bladder problems and an inability to work in heat.? Slone testified she is careful so that she does not strain herself and has been ?gun shy? about lifting.? She was concerned about being alone with a patient she might have to lift.? Occasionally she has refused to perform certain job duties because she believed it would require too much physical exertion.?

??????????? At the hearing, Slone testified she was currently taking two antidepressants as well as calcium, hormone replacement medication and stool softeners.? She was placed on restrictions after surgery but did not remember the specifics. When shown a report from Dr. Dalton indicating no lifting greater than 45 pounds for the first six months and then afterwards she would be permitted to return to regular duty without restrictions, Slone stated that sounded about right.? She restricts herself.

??????????? Slone submitted records from Dr. W. Lisle Dalton, who performed surgery April 6, 2001. The operative report indicates findings of Slone?s uterus protruding to introitus, rectocele and cystocele.? Dr. Dalton performed a total vaginal hysterectomy, anterior and posterior repair.? Records from Dr. Dalton included a number of handwritten records, largely unintelligible.? These records include an August 24, 2001 letter from Dr. Dalton to Slone.? The letter indicted Slone would be place in Class I for her vaginal problems and Class I for removal of the uterus.? The uterus was removed because of prolapse, which could not be treated medically.?? Dr. Dalton noted Slone had been previously surgically sterilized; thus, her ability to get pregnant was not impaired by the procedure.

??????????? An October 4, 2002 letter from Slone?s attorney to Dr. Dalton asked Dr. Dalton to supply a short note stating which table was utilized from the AMA Guides and Dr. Dalton indicated he used the most recent edition.? On the letter, Dr. Dalton noted the most recent AMA Guides has been used and specifically indicated Table 7-9 covering vaginal repair and Table 7-10 for the hysterectomy.? None of the records from Dr. Dalton submitted by Slone contained a specific functional impairment rating percentage from the AMA Guides.?

??????????? UK submitted the March 29, 2002 letter from Dr. Dalton to Mrs. Mary Wheatley.? Dr. Dalton?s letter stated as follows:

I am writing with regard to Sheila Slone, a patient who has a workman?s comp claim.?? I cannot a give a single percentage rating to the body as a whole as far as her inability to work but I would think that having had the surgery she should be able to return to normal activity.? She should watch her lifting, no lifting anything greater than 45 pounds for the first six months.? After that, I think she could return to work as usual.? I do not think she has any permanent restrictions to work based on this surgery.

??????????? Slone filed the report of Dr. Martha M. Foster, who performed an independent psychiatric evaluation.? Dr. Foster received a history of the injury followed by surgery in April 2001.? She noted Slone experienced personality changes and that she previously was very organized and focused, but since the surgery she had difficulty with concentration and short-term memory problems.? Her sleep was disturbed with problems in the middle and terminal phases.? She was not as efficient at home or work.? She was also more impatient.? Dr. Foster stated Slone experienced significant changes in her body image as a result of the hysterectomy.? She noted there might be some anatomical changes contributing to sexual dysfunction problems.? She was of the opinion Slone suffered a moderately severe depression and none were present prior to the occupational injury.? Dr. Foster did not offer a functional impairment rating nor did she state what class of impairment Slone would have under the AMA Guides.? Dr. Foster assigned a GAF of 55.?

??????????? Slone filed the medical records of Dr. Douglas J. Nesbitt, many of which pre-date the incident and concern treatment and problems unrelated to this claim.? Dr. Nesbitt saw Slone August 13, 2001 with complaints of depression, anxiety and stress following treatment for a prolapsed uterus.? He diagnosed prolapse, rectal; depressive disorder; and anxiety disorder.? He recommended Slone avoid lifting more than 10 pounds until seen by a gynecologist.? On August 22, 2002, Dr. Nesbitt prescribed Paxil and Wellbutrin.?

??????????? The ALJ determined Slone did suffer a harmful change and her condition was as a result of the December 27, 2000 lifting incident.? However, the ALJ noted Dr. Dalton was the only physician to give an opinion regarding impairment for the physical condition and stated Slone had Class I impairments but did not assess a specific percentage of impairment.? These Class I impairments had a range of 0 to 15% under the AMA Guides.? The ALJ did not believe the holding in Knott County Nursing Home vs. Wallen, Ky., 74 SW3d 706 (2002) applied to physical conditions since the AMA Guides provide for specific numerical ratings for physical conditions.? He noted ALJs do not have the medical expertise to interpret the AMA Guides in order to divine a percentage of impairment.? It was the ALJ?s belief that if ALJs did have authority to pick an impairment rating within an impairment class, the ALJ could only choose the minimum, which in this case was 0%.? Therefore, the ALJ dismissed Slone?s claim for permanent partial disability benefits and awarded only temporary total disability benefits as paid and medical expenses.

??????????? Slone filed a petition for reconsideration concerning the ALJ?s failure to make a finding as to her mental impairment.? By order rendered December 12, 2002, the ALJ amended his Award to include findings which he was not authorized to convert a physician?s diagnosis into a class of impairment and since neither of the physicians who expressed an impairment regarding the psychological condition addressed whether Slone had any class of impairment under the AMA Guides, he was without authority to assign a percentage of impairment.? Therefore, the ALJ dismissed Slone?s claim for permanent income benefits related to the psychological condition.

??????????? On appeal, Slone argues the ALJ has the authority to assign a percentage of impairment for a physical injury if the medical expert refuses to do so.? Slone believes an ALJ has great leeway in translating medical evidence.? Since Dr. Dalton placed her in a Class I impairment level in two separate tables but refused to pinpoint a certain percentage of impairment, Slone believes it is left to the ALJ/fact finder to determine an impairment rating.? She continues to assert the holding in Knott County should be applied to this case as well.? Slone believes fundamental fairness dictates the ALJ should have the discretion to assign a specific rating to the injury within the range assigned to the class.?

??????????? Next, Slone argues the ALJ erroneously refused to assign an impairment rating for the psychological injury.? She contends that since the ALJ has the authority under Knott County to assign an impairment for a psychological injury and since it is unrebutted that she has a depression moderately severe in nature, the ALJ should assign an impairment that falls between a Class III and Class IV impairment level in the AMA Guides, Fifth Edition.? Slone notes the AMA Guides, Fifth Edition, lists five classes of impairment with Class III being described as moderate and Class IV as marked.? Although Dr. Foster did not place her condition into a class, Slone contends that since her depression was classified as moderately severe, this would translate into a level between Class III and IV.? Slone believes the ALJ failed to exercise his discretion to assign a rating and this error has resulted in a gross injustice.?

??????????? As the parties are well aware, since 1996 the claimant has the burden of proving the existence of a functional impairment rating related to the work injury in order to receive permanent income benefits.? Since Slone had the burden of proof on this issue and was unsuccessful before the ALJ, her burden on appeal is to show the evidence compelled a finding in her favor.? Paramount Foods, Inc., vs. Burkhardt, Ky., 695 SW2d 418 (1985).? We believe the evidence falls far short of compelling such a finding and, therefore, affirm.

??????????? As noted by the ALJ, Dr. Dalton was the only physician offering an opinion regarding impairment for Slone?s physical condition.? Unfortunately for Slone, Dr. Dalton indicated Class I impairment pursuant to Tables 7-9 and 7-10 of the Fifth Edition of the AMA Guides but refused to provide a specific number.?? Based upon Dr. Dalton?s reports, it cannot be said any specific impairment rating is more or less likely than a 0% rating.? Phrased another way, it is just as likely Slone has a 0% impairment as she has any other percentage of impairment.? Therefore, Dr. Dalton?s opinion is not substantial evidence of an impairment rating and cannot be used as the basis for an award of permanent income benefits.? Certainly there can be impairment ranges given for physical injuries constituting substantial evidence of a functional impairment rating.? As an example, a DRE II rating for a lumbar spine condition has a range of 5 to 8% and would thus be substantial evidence of at least a 5% impairment and would be sufficient to support an award.? Here, as noted by the ALJ, the range of impairment pursuant to the charts referred to by the ALJ have a minimum rating of 0.? The ALJ simply was not able to determine his own rating based on the evidence presented.? An impairment rating is a medical determination and, as a medical determination, it is not within the ALJ?s discretion to arrive at a separate and distinct impairment rating from that offered by a physician.? The ALJ?s use of the AMA Guides is limited to a great degree.? Essentially, the ALJ is limited to the mechanical application of various charts and may peruse the Guides in determining weight to be accorded conflicting opinion.? He may not, however, take on the role of the physician and make an independent determination.?

??????????? Likewise, we believe the ALJ correctly declined to assign a functional impairment related to Slone?s psychological condition.? As noted by the ALJ, Knott County permits an ALJ, when he has a physician?s opinion regarding a class of AMA impairment, to find an impairment within the range permitted in the Second Edition of the AMA Guides for that impairment.? Here, no physician stated Slone?s AMA class of impairment.? The Fifth Edition of the AMA Guides requires a physician first arrive at a diagnosis pursuant to the Diagnostic and Statistical Manual IV criteria.? At page 358, the Guides note, ?the diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but it is not the sole criterion to be used.??

??????????? Assessment of a psychiatric impairment involves a complex calculation with consideration given to the effects of medication, motivation, and rehabilitation.? Section 14.3 of the Guides at page 361 indicates the assessment of function includes (1) abilities to perform activities of daily living; (2) social functioning; (3) concentration, persistence and pace; and (4) deterioration or decomposition in work or work-like settings.? Independence, appropriateness, and effectiveness of activities should also be considered.? In considering activities of daily living, the Guides note they include such activities as self-care, personal hygiene, communication, ambulation, travel, sexual function and sleep.? Dr. Foster?s report falls far short of the analysis required to place Slone within the AMA classes of impairment.? Although Slone?s counsel argues a ?moderately severe depression? is the equivalent of a Class III or Class IV impairment, there is simply no medical opinion supporting this assertion.?

??????????? We would also note a Class I psychological impairment under the Fifth Edition of the AMA Guides represents no impairment.? The Second Edition of the AMA Guides provided a Class I impairment has 0 to 5% impairment.? The Fifth Edition describes Classes II, III, IV and V impairments as mild, moderate, marked and extreme, respectively.? The Second Edition provides ranges of impairment for each of the classes.? Since Dr. Foster did not specify a class of impairment, it remains a possibility that Slone?s condition falls within a Class I and has a 0% impairment.? Based upon the evidence presented in this claim, the ALJ correctly refused to assign ratings for Slone?s physical and psychological conditions and limited the award to temporary total disability and medical benefits.

??????????? Accordingly, the decision of Hon. J. Kevin King, Administrative Law Judge, is hereby AFFIRMED and this appeal is DISMISSED.

GARDNER, Member, CONCURRING.

STANLEY, Member, CONCURRING.??? I respectfully concur with the majority opinion in the case sub judice.? However, I believe the ALJ?s decision reflects a misperception under existing authority as to the extent of his discretion to choose an impairment rating under the AMA Guides that must be further clarified.

With regard to the physical injury claimed by the petitioner, in this instance the ALJ quite obviously determined Slone to have suffered from a work-related harmful change to the human organism. He further noted that Dr. Dalton, utilizing the most recent edition of the AMA Guides, placed Slone in a Class I for her vaginal problems, citing to Table 7-9 covering vaginal repair, and a Class I for removal of her uterus, citing to Table 7-10 for the hysterectomy. Although not specifically addressed by Dr. Dalton, it is unrefuted that both of these tables provide individual ranges of impairment of 0-15%. Nevertheless, the ALJ declined to grant an award of income disability in part because Dr. Dalton declined to assign a percentage number within the specific class, and the ALJ questioned his authority as fact-finder to independently refer to the AMA Guides and select a percentage within the ranges allowed.? I believe the ALJ?s reasoning was incorrect with regard to this portion of his ruling per the court of appeals holding in the unpublished decision of Appalachian Racing, Inc. vs. Kathy Blair, 2001-CA-002581-WC, (rendered June 14, 2002, and now on appeal to the Kentucky Supreme Court), and as such, constitutes a point of law that requires additional emphasis.

??????????? In Appalachian Racing, Id., the claimant, Kathy Blair, sustained a work-related injury in the course of her employment when she tripped over a box on the floor and fell while carrying a tub of ice. The accident occurred on May 10, 2000. Subsequently, Blair testified she felt immediate pain in her back, right knee, and right hip.? She was treated in a hospital emergency room and followed up with her family physician, Dr. Don Bryson. Sometime after her injury, she also began to experience stiffness in her neck and shoulder, radiating into her right arm.????

??????????? The only two physicians who rendered impairment ratings pursuant to the AMA Guides for purposes of Blair?s ensuing workers? compensation claim were Dr. Bryson and Dr.  Ravvin, a neurosurgeon, who evaluated Blair at Dr. Bryson?s request. Dr. Ravvin assessed a 0% impairment rating relative to Blair?s lumbar spine.? He did not address Blair?s alleged cervical condition.? Dr. Bryson, on the other hand, testified that Blair qualified for a rating of 12-15% to her body as a whole as a result of both conditions.? He further indicated she qualified as a DRE Category III with regard to her lumbosacral injuries and as a DRE Category II for her cervical injuries. The ALJ found Dr. Bryson?s testimony to be the most credible and independently selected a 12% impairment rating for purposes of calculating disability under KRS 342.730(1)(b) regarding both of Blair?s alleged conditions.? A majority of the Board affirmed.

??????????? Appalachian Racing subsequently appealed the ruling by the Board?s majority to the court of appeals.? As previously noted, in a decision rendered June 14, 2002, the court of appeals affirmed the majority?s determination.? In so ruling, the court specifically held as follows:

As explained by the Board, there was evidence from the testimony of Dr. Bryson to support the ultimate conclusion reached by the ALJ. While we agree that it would have been better had Dr. Bryson been more specific in assigning particular impairment ratings, we cannot say that his failure to do so warrants the total disregard of his testimony. The interpretation by the ALJ of his testimony was undertaken properly within her role as fact finder. Therefore, the Board?s affirmance of that decision in no way causes an injustice.

??????????? Subsequently, in Transcraft Corporation vs. Steve Fannin, Claim No. 00-97065 , (rendered October 23, 2002 and now final), this Board affirmed a similar decision by an ALJ who was faced with an AMA impairment range of 16-30% provided by the medical expert deemed most credible.? Within that range, the ALJ selected an impairment rating of 24%. We affirmed. We did so based upon the court?s holding in Appalachian Racing, supra, specifically stating as follows:

Hence, relying on the guidance of the court of appeals in its unpublished decision in Appalachian Racing, supra, and unless instructed otherwise by the supreme court, we conclude, as a matter of law, that where there is a work-related injury producing permanent impairment in conjunction with credible medical evidence demonstrating merely that the injured worker falls within a class of impairment under the AMA Guides, the ALJ may reference the AMA Guides and select an appropriate rating within the range allowed by the AMA Guides for purposes of calculating a permanent partial disability rating under KRS 342.730(1)(b).

Although I realize the facts of the present action are somewhat distinguishable from those in Appalachian Racing, supra, and Transcraft Corporation, supra, in that Dr. Dalton at no time expressly testified regarding the 0-15% ranges for her vaginal problems and vaginal repair, he did cite to the specific chapters and tables within the AMA Guides that set those ranges. Recently, in the work-related hearing loss case of Tanks vs. Roark, Ky., ___ S.W.3d ___, (2003), (rendered February 20, 2003 and ordered to be published but not yet final), the Kentucky Supreme Court stated that:

Chapter 9 of the 4th edition of the Guides contains a table on page 228 that converts a binaural hearing impairment into an AMA whole-body impairment. The table is found in Chapter 11 of the 5th edition on page 250. Although medical expertise is required to perform audiometric testing, it is apparent that no medical expertise is required to read this conversion table. For that reason, we are of the opinion that when faced with unrefuted evidence of increased hearing impairment in the relevant period, the ALJ was both authorized and required to consult the appropriate edition of the Guides and to convert the 1998 hearing impairment into an AMA whole-body impairment.? (Emphasis ours).

Slip Opinion at page 4.

??????????? Hence, the ALJ in the case sub judice not only had the authority to independently reference the chapter and tables under the AMA Guides cited to by Dr. Dalton, I believe as a matter of law he was under a duty to do so, given the supreme court?s holding in Tanks vs. Roark, supra. That having been said, I concur with the ultimate result reached by the majority.? The saving grace in this instance is the fact that the ALJ included additional language within his decision stating that if he did have such authority to choose within the 0-15% ranges, he could only choose the minimum that, in this case, was 0%.? In that there is substantial evidence sufficient to reach that result, I, too, would affirm.

COUNSEL FOR PETITIONER:

Hon. Daniel E. Moriarty

P.O. Box 54445

Lexington, Ky?? 40555

COUNSEL FOR RESPONDENT:

Hon. Theresa Gilbert

156 Market Street

Lexington, Ky?? 40507

ADMINISTRATIVE LAW JUDGE:

Hon. J. Kevin King

8120 Dream Street

Florence, Ky?? 41042