*/
Workers’
Compensation Board
OPINION
ENTERED: July 8, 2016
CLAIM NO. 201378086
TOM PROCTOR RACING STABLE PETITIONER
VS. APPEAL FROM HON. UDELL
B. LEVY,
ADMINISTRATIVE LAW JUDGE
LEIGH SLOAN
and HON. UDELL B. LEVY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
IN PART, REVERSING IN PART,
VACATING
IN PART, AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Tom Proctor Racing Stable (“TPRS”) seeks review of the January 11, 2016,
Opinion, Award, and Order of Hon. Udell B. Levy, Administrative Law Judge
(“ALJ”) finding Leigh Sloan (“Sloan”) sustained work-related injuries on July
24, 2012, and awarding permanent partial disability (“PPD”) benefits and
medical benefits. TPRS also appeals from
the February 22, 2016, Order ruling on its petition for reconsideration.
At the time of her injury, Sloan was employed by TPRS as an
assistant trainer. Each morning she was
required to check on the health and welfare of the horses before training
them. In addition to training the horses
between 6:00 a.m. and 10:00 a.m., she managed the employees. Sloan testified that on the date of her
injury she noticed a horse in a stall reach out, grab a girl walking a horse, and
attempt to drag her into the stall.
Sloan dismounted her pony, picked up a pitch fork, and walked to the
stall. She recounted what followed:
A: But
to get him to get back instead of coming at me, I shook that at him. I went in
to tie him up, because you tie them up in the back of the stall with a
bungee-cord type thing. He’s still kind of, you know, rambunctious, but he’s
used to me dealing with him because I had been having to paint his legs. And as
I went to snap and hook onto his halter, he flung his head.
I
don’t remember the initial impact of it. I don’t remember if I got him tied up
or not, but I did not fall and I did not black out. I just knew something hit
me here (indicating). And the last I remember is him slinging his head at me as
I’m going to hook. I had enough sense in me to think and I felt and blood was
coming out. It knocked my helmet off. I do remember my helmet being knocked
off.
I
closed the door, got some paper towels and held them to my head, and I walked
100 yards back around to where my employees were sitting. I sat down, and they
saw the blood.
And
they said, what happened?
And
I said, how bad is it?
And
they went immediately to get the ambulance.
Sloan was treated at the University
of Louisville Hospital. Thereafter, she
underwent treatment by multiple physicians as a result of skull fractures and
damage to her left eye, including dry tear ducts.[1] Sloan testified her treating physicians in
Kentucky were “Drs. Nunnery, Urda, Newton, Goffman [sic], and LeClear.” She was also treated by Dr. Onofrey in
Florida. When her tear ducts unplugged, on
July 15, 2015, Dr. Catherine Newton recauterized her tear ducts. Dr. Newton prescribed Gabapentin which helps
with headaches and facial pain caused by squinting. Since her deposition she has only seen Dr.
Newton. She takes Zirgan eye drops for
the herpes virus she developed in the left eye.
Dr. Newton diagnosed herpes in her eye after the 2013 Kentucky Derby and
has aggressively treated the condition through the date of the hearing. Sloan explained when she has a long strenuous
day or does not get the opportunity to close her eye, her vision blurs by 4:00
p.m. However, if she can close the eye
and relax it a little bit her problem is not as severe. Whether she experiences headaches depends on
how much she is required to squint her left eye due to wind and sun.
Sloan testified she becomes confused very
quickly when she is required to deal with more than one individual at the same
time. She returned to work performing
all aspects of her job. However, because
TPRS had no more work for her, she now works sporadically for Airdrie Stud in
Lexington. Sloan testified that when she
blinks she is unable to close her eye completely:
Q: Okay. I just have to say, ma’am, I
have been watching you, and I have been seeing you blinking it. Are you able to
blink it?
A: Does it blink? I mean. I – it
doesn’t close all the way, I don’t know. They just said the nerves – and the
one reason I went to Grossman, he thought maybe he could attach this lid, the
corner where it is not attached, he thought that he could attach that, and
maybe it would help with the dry eye. But the eye doesn’t blink closed.
Q: Okay. So it may be more accurate to
say you can blink it, but you maybe can’t close it all the way as easily as you
could before?
A: Yeah. Right.
The July 26, 2012, University of
Louisville Hospital emergency department medical record indicates a CT scan of
the head revealed the following: multiple facial bone fractures including a depressed
fracture of the left frontal sinus, fracture of the roof of the left orbit,
fracture of the medial wall of the left orbit, fracture of the lateral wall of
the left orbit, fracture of the floor of the left orbit, fracture of the
posterior lateral wall of the left maxillary sinus, fracture of the anterior
wall of the left maxillary sinus, and fracture of the left zigomatic arch. The “[i]mpression” was:
1. Multiple facial bone fractures as
detailed above, consistent with a left-sided tripod fracture and a left-sided
orbit blowout fracture. There is associated hemosinus and apparent hemorrhage
in the left orbit, but both globes remain intact.”
2. Additionally, there is a fracture of
the left nasal bone.
3. There is no definite intracranial
extent of this trauma.
The “Clinical Impression” was:
“[c]losed head injury. Deep laceration to face. Complicated repair. Nasal
fracture, zygomatic fracture, blow-out fracture left eye.”
The September 18, 2015, Benefit Review Conference (“BRC”)
Order references the October 8, 2014, BRC Order identifying the only contested
issue as benefits per KRS 342.730.
The October 30, 2015, hearing order
reflects Sloan introduced the following medical evidence: medical
records/reports of Drs. Jules Barefoot, Ellen Ballard, Kirk LeClear, Douglas
Gossman, Newton, and U of L Healthcare.
TPRS relied upon the reports of Drs. Michael Best and Peter
Timoney. The hearing order also reflects
the following handwritten notation: “12/2/14 supplemental report of Dr. Best,
C.V. of Dr. Timoney (to be filed within 10 days)” and “Dr. Allen’s report must
be delivered to Plaintiff’s attorney and judge within 10 days.”[2]
In his January 2016, decision, the ALJ provided, in
relevant part, the following findings of fact and conclusions of law:
The evidence shows that the left side of Plaintiff’s
face was crushed as a result of an apparent head butt from a horse she was
training in the scope of her employment for Defendant. She sustained multiple
facial fractures, including every boundary of her left eye socket. There was
also direct trauma to the eye and she has been left with residual scarring not
only to her forehead and eyebrow, but to the left eyelid as well. Several
doctors have provided findings from their examinations and various diagnoses
for Ms. Sloan’s conditions. But only a handful provided opinions regarding
permanent impairment she has sustained.
Dr. Allen noted Ms. Sloan had received no treatment
for psychiatric complaints and would likely benefit from psychotherapy and
antidepressant medication. With that caveat, he determined that she currently
has a Class I impairment for Mental Disorders according to criteria from the AMA Guides, 2nd Edition, and
assigned a 5% whole body impairment. He further opined that Plaintiff has a
Class 1 impairment of the Central Nervous System and a 0% impairment due to
mental status changes pursuant to Tables 13-5 and 13-6 of the AMA Guides, Fifth Edition. However, the
range for impairment ratings for a Class 1 impairment pursuant to Table 13-6 is
1% to 14%.
Dr. Best provided an addendum after Dr. Timoney’s
ophthalmologic evaluation and, notwithstanding his earlier observation that
Plaintiff had sustained “a significant injury”, relied upon Table 11-5 of the Guides to conclude she had a 3% whole
person impairment due to her painful scar.
He also cited Dr. Timoney’s findings that Ms. Sloan had no visual acuity
impairment, and concluded that Dr. Barefoot’s findings were “clearly…not
appropriate under The Fifth Edition AMA
Guides.”
Notwithstanding his conclusion regarding visual
acuity, Dr. Timoney provided numerous other diagnoses relating to damage to the
structure in and around Plaintiff’s left eye. The evidence further shows that
the “painful scar” that Dr. Best referred to actually extends from Ms. Sloan’s
forehead and across her eyebrow. There
is then an “abnormality” (as referred to by Table 11-5 upon which Dr. Best
relies) that continues to the orbital structure of her left eye, which Dr.
Gossman pointed out is asymmetrical, leading to his diagnosis of left
enophthalmos. Several doctors have also documented her droopy eyelid, or
ptosis, and the fact that Ms. Sloan is unable to completely close her
eyelid. She also has a decrease in her
left upper gaze, and therefore limited movement of the eye. It is clear a
“painful scar” does not fully describe Plaintiff’s facial abnormalities.
Ms. Sloan also has problems with her tear ducts and
difficulty moistening her left eye. She is therefore required to wear lenses to
protect her cornea from infection. It also bears mentioning, as Dr. LeClear
points out, that this risk is enhanced by environmental factors associated with
horse training, such as wind, dust and dirt. Finally, Dr. Ballard prescribed
polarized lenses to limit problems with bright lights and pain associated with
squinting.
Dr. Barefoot clearly provides the most credible
evaluation of Plaintiff’s whole person impairment due to being struck in the
face by a thoroughbred race horse. The 9% rating with regard to Plaintiff’s
scarring more accurately reflects the deformity that continues past her left
eyebrow and encompasses her entire left eye. Furthermore, he correctly notes
that the AMA Guides expressly state
that visual acuity and/or field loss “are not the only factors that can lead to
a loss of functional vision.” His 20% rating pursuant to Table 12-10 is
entirely appropriate given the multitude of residual problems associated with
the structural damage to Plaintiff’s left eye. This not only includes glare
sensitivity and blurred vision that develops with fatigue but, in addition, the
extent that her vision is partially blocked by her drooping eyelid.
Finally, Plaintiff was diagnosed with a closed head
injury upon discharge from University Hospital.
Dr. Allen’s testing was suggestive of “some slight indications of
cognitive inefficiency or inconsistency” and he acknowledged that she made no attempt
to feign memory impairment. Both Dr. Allen and Dr. Barefoot determined that Ms.
Sloan meets the criteria for Class 1 impairment under Table 13-6. However, Dr. Barefoot’s 10% rating is the
only one that falls within the 1%-14% range proscribed by the AMA Guides. As a result, I conclude Plaintiff has a 34%
impairment rating due to these factors.
I further rely on Dr. Allen to conclude that
Plaintiff has sustained a psychiatric injury proximately caused by the 7/24/12
work injury. Wal-Mart Stores, Inc. v. Smith, 277 S.W.3d 610 (Ky. App. 2008). An impairment cannot be
considered to be permanent until the underlying condition "has reached
maximum medical improvement (MMI), meaning it is well stabilized and unlikely
to change substantially in the next year with or without medical treatment."
Colwell v. Dresser
Instrument Div., 217 S.W.3d 213 (Ky. 2006). Dr. Allen opines that
Plaintiff could benefit from medication and psychotherapy. But the Guides also recognize that, even where
an injured worker reaches MMI, some change in their condition can occur over
time. Ms. Sloan has gone three and a
half years to this point without such treatment and stated on more than one
occasion her disdain for medication.
Furthermore, Dr. Allen has determined her current level is, at worst,
still compatible with most useful functioning. I therefore find that Plaintiff
has an additional 5% impairment rating due to her psychiatric injury.
Finally, KRS 342.730(1)(c)1 provides an additional
multiplier for calculating permanent partial disability to benefit injured workers
who do not retain the physical capacity to return to the type of work performed
at the time of an injury and suffered a decrease in their earning
capacity. Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003); Kentucky River Enterprises v. Elkins, 107 S.W.3d 206 (Ky. 2003).
The statute states in relevant part as follows:
If, due to an
injury, an employee does not retain the physical capacity to return to the type
of work that the employee performed at the time of injury, the benefit for
permanent partial disability shall be multiplied by three (3) times the amount
otherwise determined under paragraph (b) of this subsection[.]
In Ford Motor Company v. Forman 142 S.W.3d
141 (Ky. 2004), the Kentucky Supreme Court construed that “the type of work
that the employee performed at the time of injury” as used in the statute means
“the actual jobs that the individual performed.” Subsequently, the Court
further clarified that the term “refer(s) broadly to the various jobs or tasks
that the worker performed for the employer at the time of injury rather than to
refer narrowly to the job or task being performed when the injury
occurred.” Miller v. Square D. Company, 254 S.W.3d 810 (Ky. 2008). The guiding
principle of both Forman and Miller is that “the type of work that
the employee performed at the time of injury” refers to all the jobs and tasks actually
performed by the claimant for the employer.
Miller, 254 S.W.3d at 813-14; Forman, 142 S.W.3d at 145.
Plaintiff was
specifically asked at the Formal Hearing whether she was able to return to all
functions of her job as an assistant trainer and responded in the
affirmative. She verified this when she
testified she was still able to perform all the duties associated with her job
after the injury. She had difficulty tasking but developed measures to help her
deal with them. Furthermore, it appears
that much of her difficulty with performing her job was because the Defendant
nearly tripled the number of horses under her training after she was injured. While it isn’t necessary to delve into their
motive for increasing her workload after she sustained facial and head injuries
from one of their horses, I must conclude from the evidence that Plaintiff has
not met her burden to receive further multipliers pursuant to KRS 342.730(1)(c)1.
Therefore, I conclude that the Plaintiff, Leigh Sloan, is entitled to permanent
partial disability income benefits calculated as follows:
$552.13 x 37% x 1.70 = $347.29
Both parties filed petitions for
reconsideration. In its petition for
reconsideration, TPRS requested the ALJ reconsider the finding Sloan had a 5%
impairment rating due to a psychological injury, arguing that at the time Dr. Timothy
Allen assessed the impairment rating he opined Sloan had not reached maximum
medical improvement (“MMI”). It also argued
the ALJ did not properly address its argument that Dr. Barefoot’s assessment of
a 10% impairment rating due to traumatic brain injury is not supported by the
weight of the evidence. Significantly, TPRS
did not request additional findings of fact but only requested the ALJ modify
his January 2016 decision.
Concerning TPRS’s petition for reconsideration, the ALJ stated, in
relevant part, as follows:
As pointed out in
the Opinion Award and Order, Plaintiff has not had any psychotherapy over the
three and a half years since her injury and has further indicated her desire to
avoid taking medication. I would further add that, while Dr. Allen examined Ms.
Sloan to provide opinions relative to this claim, none of her treating physicians
have referred her for psychotherapy or psychotropic medication. She is still
functioning at a high level psychologically and, therefore, has reached maximum
medical improvement.
It further appears
the Defendant is rearguing the merits regarding the determination that
Plaintiff has 10% whole person impairment due to a traumatic brain injury. Both
Dr. Allen and Dr. Barefoot determined Plaintiff Class 1 impairment related to
mental status pursuant to Tables 13-5 and 13-6 of the AMA Guides. However, Dr.
Barefoot was the only physician to provide a rating within the range
established for a Class 1 impairment.
Further relief pursuant to Defendant’s petition is prohibited by the
statute since the parties have been sufficiently apprised of the basis for determining
Plaintiff has this impairment for mental status and the separate psychological
impairment as described in the January 11, 2016 Opinion. Kentland Elkhorn Coal Corp. v.
Yates, 743 S.W.2d 47 (Ky. App. 1998); Cook v.
On appeal, TPRS challenges the ALJ’s decision on three grounds. First, it asserts the ALJ’s reliance upon Dr.
Barefoot’s 10% impairment rating for traumatic brain injury is unreasonable and
not supported by substantial evidence.
It relies upon the opinion of Dr. Allen who concluded Sloan did not have
a traumatic brain injury, since the neuropsychological testing did not reveal
cognitive impairment. TPRS asserts Dr.
Barefoot did not list any testing or provide documentation explaining the
diagnosis of a traumatic brain injury.
It cites to Table 13-25 of the 5th Edition of the American
Medical Association, Guides to the Evaluation of Permanent Impairment
(“AMA Guides”) which documents a battery of neurological tests and
criteria to be reviewed in determining whether impairment of the central
nervous system is present. It asserts Dr.
Barefoot did not employ this testing or criteria to support his finding of
traumatic brain injury. On the other
hand, Dr. Allen subjected Sloan to a battery of psychological testing over a
two day period. Based on this testing,
Dr. Allen concluded there was no evidence of even a mild traumatic brain injury. It maintains Dr. Allen’s assessment is
verified by the fact Sloan continued to perform her job duties for the three
year period between her injury and the end of her employment with TPRS. It contends there is no evidence that Sloan
suffered a traumatic brain injury other than Dr. Barefoot’s conclusory
statement. It notes Dr. Barefoot is an
occupational medical specialist and unlike Dr. Allen has no specialized
training in assessing a neurological psychological impairment. It complains although these arguments were
raised regarding Dr. Barefoot’s opinion, the ALJ did not address them. Thus, the ALJ failed to set forth sufficient
facts to support his conclusion.
Next, TPRS argues the ALJ erred in finding
Sloan was at MMI and in relying upon Dr. Allen’s 5% impairment rating for the
psychological impairment. It notes Dr.
Allen diagnosed adjustment disorder with mixed anxiety and depression as well
as alcohol use disorder in sustained remission.
However, Dr. Allen concluded Sloan was not at MMI and noted the AMA Guides
do not permit the assessment of an impairment rating prior to achieving
MMI. If a percentage was necessary, Dr.
Allen concluded Sloan currently has a Class 1 impairment for mental disorders
and based on the 2nd Edition of the AMA Guides, a 5%
impairment rating due to the work-related injury. However, if Sloan were to engage in
treatment, Dr. Allen believed there would be no impairment rating. TPRS argues since the AMA Guides
prohibited Dr. Allen from assessing an impairment rating, Sloan has no
impairment rating for a psychological injury.
TPRS argues the ALJ erred in
disregarding Dr. Allen’s uncontradicted statement Sloan was not at MMI and in
determining she had a 5% impairment rating for a psychological injury.
Finally, TPRS argues the ALJ erred in
relying upon Dr. Barefoot’s assessment of a 9% impairment rating for facial
scaring and a 20% impairment rating for photophobia as both are unreasonable
and not supported by substantial evidence.
TPRS argues Dr. Best found Sloan’s cranial nerve function revealed
normal visual fields and pupillary response bilaterally. Her extraocular movements were smooth and she
had coordinated eye movement in all directions.
In addition, Sloan demonstrated normal corneal reflex on the left, no
photophobia to light upon testing, and 20/20 visual acuity. Dr. Best indicated Sloan had multiple left
facial fractures and no long-lasting nerve or eye injury. Because Sloan had a well-healed scar resulting
in little or no disfigurement, Dr. Best assessed a 2% to 3% impairment
rating.
TPRS notes Dr. Timoney’s finding Sloan had no visual acuity impairment
which translated to a visual acuity impairment rating of 0%. It acknowledges Dr. Timoney diagnosed status
post-facial fracture repair, left lasophthalmos, left superficial punctate
erosions, left upper punctual stemosts, left lower punctual plug, and left
lateral canthal dystopia. However, Sloan
did not report an impaired ability to perform her activities of daily
living. Thus, it contends these findings
direct that Sloan falls within column 1 of Table 12-10 of the AMA Guides
which is a Class 1 impairment. As such, only
Dr. Timoney’s 0% impairment rating falls within that class. It argues the ALJ failed to account for this
discrepancy. Thus, the inconsistent
evaluation constitutes an abuse of discretion and causes the ALJ’s decision to
be arbitrary, unreasonable, unfair, and unsupported by sound legal
principles. It argues in light of Dr.
Timoney’s report, Dr. Barefoot’s report is inappropriate and not in accordance
with the AMA Guides.
With
respect to Dr. Barefoot’s 9% impairment rating for the facial scar, TPRS argues
Dr. Barefoot did not describe the shape, color, evidence of ulceration,
depression, or elevation. Further, he
did not note whether the scar was atrophic or hypertrophic, soft, pliable,
hard, thick, smooth, or rough. It cites
to Dr. Best’s statement in his December 2, 2014, report that the AMA Guides
state these factors should be considered in the evaluation process. It notes Dr. Barefoot also provided no
explanation or reasoning to support an impairment rating at the high end of the
scale. TPRS argues since Sloan continued
to perform her full work duties and the scar was well-healed resulting in
little or no disfigurement, an impairment rating at the highest range was
inappropriate.
Sloan, as the
claimant in a workers’ compensation proceeding, had the burden of proving each
of the essential elements of her cause of action, including causation. See KRS 342.0011(1); Snawder v. Stice,
576 S.W.2d 276 (
In rendering a decision, KRS 342.285
grants an ALJ as fact-finder the sole discretion to determine the quality,
character, and substance of evidence. Square D Co. v.
Tipton, 862 S.W.2d 308 (
The function of the Board in
reviewing an ALJ’s decision is limited to a determination of whether the
findings made are so unreasonable under the evidence that they must be reversed
as a matter of law. Ira A. Watson
Department Store v.
We find no merit in TPRS’s first
argument Dr. Barefoot’s assessment of a 10% impairment rating for a traumatic
brain injury is unreasonable and not supported by substantial evidence. In his report, Dr. Barefoot correctly noted
the University of Louisville Hospital’s July 24, 2012, record contains a
diagnostic impression on discharge of closed head injury, deep laceration to the
face with a complicated wound repair, nasal fracture, and blowout fracture of
the left eye. Based on a medical records
review and his examination, Dr. Barefoot diagnosed the following:
1. Status post treatment for
a depressed fracture of the left frontal sinus, fracture of the left orbit,
fracture of the medial wall of the left orbit, fracture of the lateral wall of
the left orbit, fracture of the floor of the left orbit, fracture of the
posterolateral wall of the left maxillary sinus, fracture of the left anterior
wall of the left maxillary sinus, and fracture of the left zygomatic arch.
2. Left nasal bone with
deviation of the nasal septum.
3. Lagophthalmos left upper
lid.
4. Orbicularis oculi palsy.
5. Facial scarring with the
left orbital fat atrophy.
6. Closed head injury with
traumatic brain injury.
7. Left enophthalmos.
Concerning Sloan’s closed head injury,
Dr. Barefoot stated:
In regards to her closed
head injury/traumatic brain injury that she received, refer to page 320, table
13-5, Clinical Dementia Rating. She falls into the questionable category and
would be assigned a 0.5 score.
TPRS does not contend Dr. Barefoot referenced
the wrong section and table of the AMA Guides in arriving at the 10%
impairment rating. Nor does TPRS contend
Sloan overstated her symptoms resulting from her head injury. Rather, it argues Dr. Barefoot’s impairment
rating is not supported by any clinical testing, and Dr. Allen’s testing
revealed no traumatic brain injury. The
portions of Dr. Barefoot’s report dealing with the traumatic brain injury,
though succinct, qualify as substantial evidence sufficient to support the
ALJ’s finding Sloan sustained a work-related traumatic brain injury.
Concerning the existence of a
traumatic injury, even though Dr. Allen concluded neurological testing did not
reveal cognitive impairment, he opined as follows:
She has a Class I impairment
of the Central Nervous System. According to the AMA Guides, 5th
edition Chapter 13, tables 13-5 and 13-6, she has a 0% impairment due to mental
status changes related to the work injury of July 24, 2012.
A review of Tables 13-6 of the AMA Guides
cited by Dr. Allen indicates a Class 1 impairment merits an impairment rating
from 1% to 14%. Yet, Dr. Allen assessed a
0% impairment rating in contravention of the very table he cited. Since Dr. Allen found Sloan fell within Class
1 of Table 13-6, Dr. Barefoot’s 10% impairment rating is within the range
permitted by Table 13-6. Consequently,
Dr. Barefoot’s impairment rating is supported by the medical records of the
University of Louisville Hospital, his evaluation, and Dr. Allen’s assessment
of a Class 1 impairment rating.
Substantial evidence supports the ALJ’s determination of a traumatic
brain injury and the 10% impairment rating he assessed for that injury.
While the contrary opinion of Dr.
Allen that neurological testing did not reveal a cognitive impairment rating
and Sloan had no impairment rating may have been articulated in greater detail,
such testimony represented nothing more than conflicting evidence compelling no
particular outcome. Copar, Inc. v.
Regarding TPRS’s second argument, we
agree the ALJ erred in finding Sloan was at MMI and in relying upon Dr. Allen’s
assessment of a 5% impairment rating for a psychological injury. Only Dr. Allen offered an opinion as to
whether Sloan had an impairment rating due to the psychological injury. The ALJ understood Dr. Allen concluded Sloan
was not at MMI at the time he saw her. However,
the ALJ’s reasons for attributing no significance to Dr. Allen’s opinion regarding
the date of MMI were Sloan had not undergone psychotherapy in the three and a
half years since her injury and she expressed the desire to avoid taking
medication. In the February 2016 order, the
ALJ also noted none of Sloan’s treating physicians referred her to psychotherapy
or psychotropic medication. Since Sloan
was functioning at a high level psychologically, he concluded she had reached
MMI. That finding by the ALJ is
erroneous.
Important to resolving this issue is
the fact Dr. Allen did not see Sloan until October 14 and 15, 2015. The fact Sloan may not have received any
prior treatment is irrelevant. The
hearing in this matter was conducted on October 30, 2015, fifteen days after
Sloan was seen by Dr. Allen. The ALJ’s
statement that Sloan had not had any psychotherapy in over three and a half
years since her injury is irrelevant. More
importantly, a date of MMI must be based on medical evidence. Dr. Allen conclusively stated that as of the
date he saw Sloan, she was not at MMI.
In his report, Dr. Allen did not in any manner qualify his opinion Sloan
was not at MMI at the time he saw her. In
that regard, he did not opine if she received no further treatment Sloan was at
MMI. Notably, Dr. Allen stated although
it was difficult to predict the amount of benefits she may receive from
treatment, he would expect a resolution of her impairment resulting in 0%
permanent impairment. Consequently, the
ALJ erred in relying upon Dr. Allen’s impairment rating of 5% as it was
assessed in contravention of the AMA Guides.
The AMA Guides direct as
follows:
2.4 When Are
Impairment Ratings Performed?
An impairment
should not be considered permanent until the clinical findings indicate that
the medical condition is static and well stabilized, often termed the date of maximal medical improvement (MMI). It
is understood that an individual’s condition is dynamic. Maximal medical
improvement refers to a date from which further recovery or deterioration is
not anticipated, although over time there may be some expected change. Once an
impairment has reached MMI, a permanent impairment rating may be performed. The
Guides attempts to take into account
all relevant considerations in rating the severity and extent of permanent
impairment and its effect on the individual’s activities of daily living.
KRS 342.0011(11)(b) and (35) reads as
follows:
(b) “Permanent partial
disability” means the condition of an employee who, due to an injury, has a
permanent disability rating but retains the ability to work; and
. . .
(35) “Permanent impairment
rating” means percentage of whole body impairment caused by the injury or
occupational disease as determined by the “Guides to the Evaluation of
Permanent Impairment”;
The above-cited provision of the AMA Guides
and KRS 342.0011(11)(b) and (35) precluded the ALJ from relying upon Dr.
Allen’s 5% impairment rating for a psychological injury as it was not in
concert with the AMA Guides, and by extension the statute. The ALJ’s determination Sloan sustained a 5%
impairment rating as a result of a July 24, 2012, psychological work injury shall
be reversed.
Concerning TPRS’s third argument, we
find no error in the ALJ’s reliance upon Dr. Barefoot’s 9% impairment rating for
the facial scar and 20% impairment rating for the left eye injury. The May 20, 2014, letter of Dr. Newton, an ophthalmologist,
reflects she diagnosed “exposure keratopathy in the left eye” and “dry eye”
resulting from the work injury. Sloan’s visual
acuity unaided was 20/25+. Sloan had
evidence of dry eye, “with diffuse punctate staining of the left cornea.” The punctual plugs which had been previously inserted
were missing. Dr. Newton replaced the
plugs and recommended Sloan continue using the gel at night and taking Zirgan
once a day to prevent recurrence of Herpes simplex virus.
In a July 11, 2014, note Dr. Newton concluded
Sloan attained MMI and would “need upper and lower lid punctual occlusion to
maintain adequate tear film. She may
require topical non-steroidal anti-inflammatory drop for intermittent ocular
pain.” Pursuant to the AMA Guides,
Dr. Newton assessed an impairment rating for the left eye of 99% which equated
to a whole person impairment of 83.2%.
The June 7, 2013, letter of Dr.
LeClear reveals Sloan had extensive injuries to her face, orbit, and eye. He noted Dr. Gossman referred Sloan to him for
a determination of whether a contact lens could be designed to provide relief
from the dryness of the eye due to “exposure secondary to damage to the eyelid
OS.” Dr. Gossman had suggested “further
eyelid surgery may be considered but protection of the cornea from infection
and even permanent scarring was the first priority.” Dr. LeClear noted Sloan had an “inability to
close her left eyelid and Grade 3+ staining of the anterior ocular surface –
the cornea and the bulbar conjunctiva.”
Her uncorrected vision was “20/60 OS and 20/20-1 OD.” Sloan’s “best corrected vision with a large
astigmatism spectacle RX was 20/30 OS and 20/20 OD.” Dr. LeClear provided the particular options
available to deal with these problems.
Concerning an impairment rating for
the damage to Sloan’s eye, in his July 27, 2015, letter, Dr. Best relied upon
Dr. Timoney’s finding that there was no visual acuity impairment. Therefore, Dr. Best opined Sloan’s acuity related
impairment rating equals 0%. Based on
this, Dr. Best stated the Individual Medical Evaluation performed by Dr.
Barefoot was inappropriate pursuant to the AMA Guides.
Dr. Timoney’s handwritten Form 107 report
is mostly illegible. However, we note in
its brief TPRS acknowledges the multiple diagnoses of injuries which are largely
illegible. Significantly, Dr. Timoney
merely stated Sloan’s visual acuity impairment rating equaled 0%. He did not indicate Sloan did not have an
impairment rating for an injury to the left eye. Relative to the impairment rating for the
left eye, Dr. Barefoot’s report contains the following:
A report from Plastic Surgery
at University Hospital on October 9, 2012, notes an evaluation on that date.
She was noted to have 2 mm of enophthalmost and loss of attachment in the
lateral portion of the upper eyelid. She was evaluated on that date by Dr.
Florman.
A CT scan done of the facial
bones in Hollywood, Florida, on January 22, 2013, notes evidence of surgery in
the orbital floor on the left side, with a surgical plate and screws, with
thickening of the orbital floor. There was a surgical screw present in the left
zygoma. A small air bubble was seen in the soft tissues of the
anterior-superior orbit. There was complete opacification of the right
maxillary sinus probably due to sinusitis. There was severe right-sided
deviation of the nasal septum.
The records of the various physicians
recited herein along with Dr. Barefoot’s report in our view constitutes
substantial evidence in support of the ALJ’s determination Sloan has a 20%
impairment rating as a result of the injury to her left eye. In his report, Dr. Barefoot stated:
A report by Dr. Catherine
Newton, M.D., on May 6, 2013, notes an evaluation done on that date. There was
noted to be pain in the left eye, with swelling and bruising. The pain was made
worse with bright lights.
An evaluation done by Dr.
Douglas Gossman on May 28, 2013, notes pain and dry eye, with incomplete
closure of the left eyelid. Her brow area had nerve sensitivity to touch.
She also complained of left
eye diplopia on outward gaze. His examination revealed asymmetric lid excursion
in the left upper eyelid with left superior orbital fat atrophy. He noted that
the orbits were asymmetrical, with left enophthalmos. There was noted to be
reduced tear meniscus on the left with mucus stranding. His impression was for
lagophthalmos of the left upper eyelid with lagophthalmic keratitis of the left
eye and left orbicularis oculi palsy. He did note that a tarsorrhaphy could be
of benefit. (Note: This is a procedure where the eyelids are partially sewn
together.)
A report by Dr. DeClear
dated June 7, 2013, notes a referral from Dr. Gossman for evaluation of dry eye
on the left. Dr. DeClear states that a scleral lens would be the best choice
for Ms. Sloan.
Further followup [sic] visits
with Dr. Newton were reviewed. This included visits on June 25, 2013; July 26,
2013; August 1, 2013; August 6, 2013; August 15, 2013; August 20, 2013; and
August 29, 2013.
An evaluation done by Dr.
Ellen Ballard dated September 24, 2013, notes, “It hurts to squint, and bright
lights bother her.”
Dr. Ballard did note left
lid lag and a scar present above her left eye. She was noted to have slightly
decreased upper gaze on the left. She was noted to have painful palpation to
her left eyebrow. Dr. Ballard’s impression was for a history of left orbital
fracture, reported herpes simplex infection with negative lab, reported chronic
headache pain.
Further evaluations by Dr.
Newton dated May 19, 2014; June 2, 2014; and July 11, 2014 were reviewed.
A report by Dr. Newton on
July 11, 2014 places Ms. Sloan at MMI.
. . .
DISCUSSION:
Using the American Medical
Association Guides to the Evaluation of Permanent Impairment, Fifth Edition, I
would rate Ms. Leigh Sloan’s impairment as follows:
From page 297 of the Guides,
12.4B, Individual Adjustments, Ms. Sloan was noted to have glare sensitivity,
photophobia, and reduced dark adaptations. For this, she receives an adjustment
of 15 points in the Function Vision Score.
Then referring to page 298,
table 12-10, she would be placed in a Class 2 impairment and would be assigned
a 20% whole person impairment.
Dr. Barefoot cited the applicable sections and tables of the AMA Guides
upon which he relied in assessing the 20% impairment rating. The reports of Drs. Ballard, LeClear,
Gossman, Newton, and Barefoot constitute substantial evidence supporting the
ALJ’s determination Sloan has a 20% impairment rating as a result of the injury
to her left eye.
Just as significant, Dr. Timoney’s
June 11, 2015, report does not in any way attack the impairment rating assessed
by Dr. Barefoot in his August 27, 2014, report.
Thus, we find no merit in TPRS’s argument the 20% impairment rating
assessed by Dr. Barefoot and adopted by the ALJ was in error based on the
report of Dr. Timoney. Although Dr. Best
offers a blanket opinion that the impairment rating by Dr. Barefoot is
inappropriate, he does not cite any reason for that statement. It appears Dr. Best’s opinion is based solely
upon the finding of Dr. Timoney that there is no visual acuity impairment. Within his discretion, the ALJ chose to
attribute no evidentiary weight to Dr. Timoney’s Form 107 report and Dr. Best’s
opinion set forth in his July 27, 2015, letter.
In Kentucky
River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (
With respect to TPRS’s assertion the
ALJ erred in relying upon the 9% impairment rating assessed by Dr. Barefoot for
Sloan’s scar, there is no dispute Dr. Barefoot’s impairment rating is within
the range of impairment permitted by the AMA Guides for the
scarring. Further, TPRS did not request
additional findings regarding the ALJ’s determination Sloan had a 9% impairment
rating as a result of the scarring.
Consequently, for two reasons we do
not believe TPRS’s argument concerning the ALJ’s finding Sloan had a 9%
impairment rating is valid. First, as
noted TPRS did not request the ALJ to address Dr. Barefoot’s failure to
describe the nature and appearance of the scar.
Notably, in support of this argument TPRS relies upon Dr. Best’s
December 2, 2014, report which is not in the record. Although it was contained in the appendix of
TPRS’s brief, it is not in evidence and will not be considered in support of
TPRS’s argument. Since the ALJ was not
given the opportunity to address this perceived deficiency via the petition for
reconsideration, our review in this case is limited. Our review of the record leads us to conclude
there is identifiable evidence that supports the ALJ’s finding Sloan had a 9%
impairment rating which Dr. Best characterized as a painful scar. The AMA Guides permitted Dr. Barefoot
to assess a 9% impairment rating and the fact Dr. Best may have disagreed with
that determination bears no weight.
Second, even if Dr. Best’s December
2, 2014, report was in the record, this Board has repeatedly held that
criticism of Dr. Barefoot’s impairment rating for the scar is not necessarily
legally determinative or in any way binding as to the ALJ’s authority as
fact-finder to pick and choose whom and what to believe. The AMA Guides make it clear that its
purpose is to provide objective standards for the “estimating” of permanent
impairment ratings by physicians.
Because Dr. Barefoot is a licensed medical doctor, the ALJ could
appropriately assume his expertise in utilizing the AMA Guides was
comparable or superior to any other expert medical witnesses of record. What is more, the ALJ, as fact-finder, has no
responsibility to look beneath an impairment rating or meticulously sift
through the AMA Guides to determine whether an impairment assessment
harmonizes with that treatise’s underlying criteria. Except under compelling
circumstances where it is obvious even to a lay person that a gross
misapplication of the AMA Guides has occurred, the issue of which
physician’s AMA rating is most credible is a matter of discretion for the
ALJ. REO Mechanical v. Barnes,
691 S.W. 2d 224 (
In this case, the ALJ concluded Dr.
Barefoot’s use of the AMA Guides in determining that there was a 9%
impairment rating due to the scarring was not erroneous. We are unable to ascertain why the ALJ concluded
Dr. Barefoot’s impairment rating was more accurate because the petition for
reconsideration did not raise this issue.
Relying upon Dr. Best’s opinion, TPRS maintains Dr. Barefoot’s
impairment rating was erroneous.
However, the ALJ had the right to reject that opinion even if Dr. Best’s
December 2, 2014, report had been in the record.
We also note that in
its petition for reconsideration, TPRS did not challenge Dr. Barefoot’s 20%
impairment rating for the injury to Sloan’s left eye. There was no request for additional findings
regarding the ALJ’s determination Sloan had a 20% impairment rating for injury
to her left eye. Thus, any complaint by
TPRS on appeal regarding insufficient fact-finding or the ALJ’s failure to
adequately explain his reasoning for accepting Dr. Barefoot’s 20% impairment
rating for the injury to the left eye and the 9% impairment rating for the scar
is without merit as it was not preserved as an issue on appeal. As Dr. Barefoot’s 9% impairment rating for
the scar is within the acceptable impairment rating permitted by the AMA Guides,
we find no error in the ALJ’s reliance upon it.
Accordingly, those portions of the
January 11, 2016, Opinion, Award, and Order and the February 22, 2016, Order on
Reconsideration finding Sloan sustained a traumatic brain injury meriting a 10%
impairment rating, a work-related scar meriting a 9% impairment rating, and a work-related
injury to her left eye meriting a 20% impairment rating are AFFIRMED. Those portions of the January 11, 2016,
Opinion, Award, and Order and the February 22, 2016, Order on Reconsideration finding
Sloan has a 5% whole person impairment as a result of a psychological injury is
REVERSED. The award of income and medical benefits is VACATED. This claim is REMANDED to an Administrative Law Judge as designated by the Chief
Administrative Law Judge for entry of an amended award based on a 10%
impairment rating for a psychological injury, a 9% impairment rating for the
facial scar, and a 20% impairment rating for the left eye. On remand, in light of the fact TPRS does not
contest Dr. Allen’s findings concerning her work-related psychological problems,
the ALJ shall also determine whether Sloan is entitled to future medical
benefits for this condition.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON JEFFREY SOUKUP
P O BOX 2150
LEXINGTON KY 40588
COUNSEL
FOR RESPONDENT:
HON WAYNE C DAUB
600 W MAIN ST STE 300
LOUISVILLE KY 40202
CHIEF
ADMINISTRATIVE LAW JUDGE:
HON ROBERT L SWISHER
657 CHAMBERLIN AVE
FRANKFORT KY 40601
[1] It is apparent from the hearing transcript and the ALJ’s opinion that Sloan was deposed on April 18, 2014, but that deposition is not in the record. The ALJ noted the absence of the deposition in his January 2016, Opinion, Award, and Order.
[2] The curriculum vitae of Dr. Timoney was
filed in the report and even though TPRS included a copy of Dr. Best’s December
2, 2014, report in the appendix to its brief, that report is not in the Department
of Workers’ Claims paper file or the Litigation and Management System (electronic
filing system).
