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Workers’
Compensation Board
OPINION
ENTERED: July 15, 2016
CLAIM NO. 201361995
SHOE SHOW, INC. PETITIONER
VS. APPEAL FROM HON. R.
ROLAND CASE,
ADMINISTRATIVE LAW JUDGE
LINDA PALUZI
and HON. R. ROLAND CASE,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Shoe Show, Inc. (“Shoe Show”) seeks review of the January 25, 2016, Opinion,
Award & Order of Hon. R. Roland Case, Administrative Law Judge (“ALJ”)
finding Linda Paluzi (“Paluzi”) sustained a work-related low back injury and
awarding temporary total disability (“TTD”) benefits, permanent partial
disability benefits enhanced pursuant to KRS 342.730(1)(c)1, and medical
benefits. Shoe Show also appeals from
the March 18, 2016, Order overruling its petition for reconsideration.
The Form 101, alleged on October 30, 2013, Paluzi injured
her low back and bilateral lower extremities while “lifting multiple boxes
filled with shoes.” It asserts after
repetitive bending and stooping, Paluzi felt a sharp pain in her back.
The Form 111 accepted the claim as compensable but indicated
there was a dispute as to the amount of compensation owed.
After initially receiving treatment, Paluzi was treated by
Dr. Amr El-Naggar, a neurosurgeon, in Somerset, Kentucky. Paluzi underwent an MRI on December 3, 2013,
and on February 3, 2014, was first seen by Dr. El-Naggar. Dr. El-Naggar saw Paluzi on a regular basis thereafter
and concluded her treatment on October 30, 2014.
The ALJ was faced with accepting the impairment rating of
Shoe Show’s evaluating physician, Dr. Timothy Kriss, or the impairment rating
of Dr. Warren Bilkey, Paluzi’s evaluating physician.
The February 25, 2015, Independent Medical Evaluation
(“IME”) report of Dr. Kriss, his October 3, 2015, report critiquing Dr.
Bilkey’s findings and impairment rating, and his deposition of November 11,
2015, were introduced by Shoe Show.
Dr. Bilkey’s IME report of May 26, 2015, an August 16, 2015,
addendum addressing Dr. Kriss’ August 3, 2015, report, and a November 22, 2015,
addendum addressing Dr. Kriss’ deposition testimony were submitted by Paluzi.
The ALJ awarded TTD benefits from the date of injury
through October 30, 2014, the date Dr. El-Naggar determined Paluzi was at
maximum medical improvement (“MMI”).
Concerning the extent of Paluzi’s occupational disability and whether Dr.
Bilkey had correctly assessed an impairment pursuant to the 5th
Edition of the American Medical Association, Guides to the Evaluation of
Permanent Impairment (“AMA Guides”), the ALJ provided the following analysis
and conclusions:
2. Benefits pursuant to KRS
342.730?
The issue of benefits under KRS 342.730 involves the
determination of whether the plaintiff has a permanent disability and if so
whether it is total or partial in nature. In this case, the plaintiff obviously
has a permanent disability as all the physicians assigned an impairment rating.
The issue then becomes whether the disability is total or partial.
The Administrative Law Judge has carefully reviewed all the
evidence of record including the plaintiff’s testimony and the vocational experts. The plaintiff clearly has significant
restrictions assigned by her treating physician, Dr. El-Naggar. These
restrictions would essentially restrict the plaintiff to sedentary work. In a
close call the Administrative Law Judge finds the plaintiff is not totally
disabled. Although she is 61 years old,
she does have a high school education and a good work record including her last
position which certainly had significant responsibilities associated with it. The plaintiff has demonstrated reliability on
the job. When weighing all the
testimony, the Administrative Law Judge concludes the plaintiff is not totally
disabled and could perform sedentary work.
The plaintiff’s disability must therefore
be considered partial in nature. This begins with a determination of the
appropriate impairment rating under the AMA Guides. The Administrative Law Judge is convinced
form a review of the evidence that Dr. Warren Bilkey correctly indicated the
plaintiff would have an impairment under the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition
of 24% attributable to the injury. Under
KRS 342.730(1)(b), a 24% impairment carries a multiplication
factor of 1.15 for a 27.6% permanent partial disability. However, the analysis
does not end there as the Administrative Law Judge must also determine whether
the provisions of KRS 342.730(1)(c) 1 or
2 apply. Subparagraph 1 applies when
the plaintiff lacks the physical capacity to return to the type of work being
performed at the time of the injury and has not returned to earning same or
greater wages. If the plaintiff is earning same or greater wages, a
determination must be made as to whether the plaintiff will be able to continue
doing so for the indefinite future. If employment is found to be not likely,
then the 3 multiplier would apply. See Fawbush
v. Gwynn, 103 S.W. 3d 5 (Ky., 2003), Kentucky
River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky. App. 2003) and Adkins v. Pike County Board of
Education, 141 S.W.3d 387 (Ky. App. 2004). Subparagraph 2 applies only in
the limited instance where the plaintiff returns to work earning same or
greater wages, but then ceases to do so by reason of a work injury. Chrysalis House, Inc. v. Tackett, 283
S.W.3d 671 (Ky. 2009) and Hogston v.
Bellsouth Telecommunications, 325 S.W.3d 314 (Ky. 2010). The evidence
clearly establishes the plaintiff does not retain the physical capacity to
return to the type of work she was performing at the time of the injury. This essentially is uncontroverted.
The
Administrative Law Judge accepted the impairment rating of Dr. Warren Bilkey
since the plaintiff has an injury to multiple levels within one spine region,
the range of motion method is used to calculate impairment. It appears Dr. Bilkey was the only physician
to use the range of motion method. Dr. Kriss assigned a 6% impairment but this
was based on only one level. Dr. El-Naggar assigned a 13% rating but did not
use the range of motion method. Dr. Bilkey specifically found the plaintiff was
at MMI and that there had been injury to multiple levels and therefore used the
range of motion method. Injury to multiple levels is confirmed by Dr. El-Naggar
and by Dr. John Guarnaschelli. After carefully reviewing and weighing all of
the medical evidence the Administrative Law Judge is persuaded by the evidence
of Dr. Warren Bilkey that the plaintiff has a 24% impairment based on the AMA
Guides.
Since
the plaintiff was 59 years old at the time of her injury, she is also entitled
to a multiplier of .4. Therefore, the
plaintiff’s disability rating will be increased by 3.4. The calculation of
benefits is therefore 24% x 1.15 x $564.52 x 3.4 equaling $529.75.
In summary, while the Administrative Law
Judge finds the plaintiff is not totally disabled he finds the plaintiff does
not have the physical capacity to do the type of work she performed at the time
of the injury and has a 24% impairment rating based on the AMA Guidelines
increased by the appropriate factors.
Shoe Show filed a petition for
reconsideration asserting it had properly raised the issue of the admissibility
of Dr. Bilkey’s impairment rating and the proper use of the AMA Guides. It requested:
[A]dditional findings of
fact on the evidence presented by Dr. Kriss regarding Dr. Bilkey’s incorrect
method for measuring the Plaintiff’s alleged compression fractures; his use of
the pre-surgical MRI scan to perform those measurements (resulting in a
temporary rating, at best); his assessment of range of motion deficits given
the inconsistencies in the Plaintiff’s tested versus observed range of motion;
and his assessment of impairment for a compression fracture at L2.
In the March 18, 2016, Order overruling
the petition for reconsideration, the ALJ stated:
The Petition for
Reconsideration raises no new issues and the issue of Dr. Bilkey’s rating and
proper use of the Guides was considered by the ALJ on pages 17 – 19 of the
Opinion and Award. The ALJ was quite simply persuaded by Dr. Bilkey’s opinion
and that he properly calculated the impairment using the AMA Guides. For that
reason, the Petition for Reconsideration is nothing more than a re-argument of
the case and the Petition for Reconsideration is OVERRULED.
Significantly, on appeal Shoe Show
does not contend the entire 24% impairment rating is not in compliance with the
AMA Guides nor does it question Dr. Bilkey’s utilization of the ROM
method, pursuant to the AMA Guides, in assessing the impairment rating.[1] Rather, its argument is:
The
only question on appeal is whether the 5% and 7% whole person impairment
ratings that Dr. Bilkey assessed for alleged compression fractures at L2 and
L3, respectively, comport with substantial evidence. As set forth below, the
Petitioner maintains that those portions of Dr. Bilkey’s rating are fatally
flawed and cannot be relied on for an award of benefits.
Shoe Show notes as follows:
“impairment is considered permanent when it has reached maximal medical
improvement (MMI), meaning it is well stabilized and unlikely to change
substantially in the next year with or without medical treatment.” Thus, MMI is a prerequisite for the
evaluation of permanent impairment. It observes
Dr. Bilkey measured the compression fractures at L2 and L3 as shown on the
December 3, 2013, MRI scan which was prior to the successful Kyphoplasty
procedure performed by Dr. El-Naggar and the attainment of MMI. It notes the earliest MMI date is October 30,
2014, as opined by Dr. El-Naggar.
Shoe Show argues Paluzi experienced
objective improvement in the vertebral body height due to the Kyphoplasty which
was confirmed by a July 9, 2014, MRI scan.
It posits that at the time of the December 3, 2013, MRI scan, Paluzi’s
condition had not yet stabilized and changed substantially after her
surgery. Shoe Show cites to Dr. Kriss’
opinion Dr. El-Naggar successfully reduced Paluzi’s L3 compression fracture
through surgery and she had no measurable L2 compression fracture despite
receiving no treatment. In summary, both
levels improved, one with and one without medical treatment. Thus, Shoe Show contends the impairment
rating assessed based on the December 2013 MRI does not comply with the AMA Guides
and cannot be relied upon.
Paluzi, as the claimant in a workers’ compensation
proceeding, had the burden of proving each of the essential elements of her
cause of action. 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.
The December 3, 2013, MRI report
provides the following findings and impression:
. . .
Bones: There is a large
amount of edema throughout the L3 vertebral body. Minimal edema is present in
the superior aspect of L2. There is a 25% superior endplate compression of the
L3 vertebral body with minimal superior endplate compression of L2. No other
compression fractures are identified.
T12-L1: Mild broad-based
protrusion.
Lumbar disc levels
L1-L2: L1-2: Mild
broad-based protrusion.
L2-L3: L2-3: Mild left
posterior lateral bulging. There is 6 mm anterior deformity of the thecal sac
secondary to the superior endplate compression fracture.
L3-L4: Moderate broad-based
protrusion with anterior deformity of the thecal sac and bilateral neural
foraminal narrowing. Mild facet degenerative change.
L4-L5: Advanced disc space
narrowing. Large left posterior lateral extrusion with left neural foraminal
narrowing. Mild right posterior lateral bulging. Mild facet degenerative
change.
Impression: acute/subacute
superior endplate compression of L3 with 25% loss of height. Minimal superior
endplate compression of L2.
Multilevel level discogenic
degenerative change most notable at L4-5 on the left. Please see above for
individual level discussion.
In his initial note of February 3,
2014, Dr. El-Naggar stated the MRI of the lumbar spine:
Demonstrates evidence of
compression fracture at the superior margin of L2 and the entire L3 vertebral
body shows edema indicated acute compression fracture. There is also evidence
of multiple level degenerative changes and a leftward foraminal disc herniation
with facet stenosis.
Dr.
El-Naggar recommended an L3 Kyphoplasty.
An off work slip also refers to “compression fractures of vertebre.” His notes of March 27, 2014, and April 4,
2014, contain the same notation. On
April 4, 2014, Dr. El-Naggar performed the Kyphoplasty and on May 29, 2014, he
performed an S/P injection. Dr.
El-Naggar’s notes of April 14, 2014, June 20, 2014, and July 7, 2014, reference
compression fractures of vertebre.
In his note of July 7, 2014, Dr.
El-Naggar stated Paluzi had undergone an L3 Kyphoplasty on April 4, 2014, and
an L2-3 ESI on May 29, 2014. One of his assessments
was “[c]ompression fractures of vertebre.”
The MRI report of July 9, 2014,
provides the following findings:
Conus Medullaris: Normal
terminating at L1. The visualized cauda equine is unremarkable.
Paraspinal area: Normal.
Bones: The patient is post
kyphoplasty of L3. Minimal retropulsion is seen to the superior endplate of L3.
In his July 10, 2014, record Dr.
El-Naggar did not reference a compression fracture at either the L3 or L2
area. He noted a Kyphoplasty had been
performed on April 4, 2014, and an L2-3 ESI had been performed on May 29, 2014,
and the MRI did not demonstrate a new compression fracture.
In his answers to a questionnaire
dated October 29, 2014, Dr. El-Naggar again noted the L3 Kyphoplasty and the
L2-3 ESI had been previously performed.
He made no mention of the compression fractures and opined Paluzi was at
MMI and assessed a 13% impairment rating.
In the note of October 30, 2014, Dr.
El-Naggar did not reference a compression fracture. Dr. El-Naggar noted the Kyphoplasty did not
provide significant benefit and the ESI had provided about 30% relief in the
upper lumbar region for about two or three days. Paluzi did not have lower lumbar pain.
In his May 26, 2015, report Dr.
Bilkey noted the lumbar MRI dated December 3, 2013, demonstrated a large amount
of edema throughout L3 vertebral body and minimal edema was present in the
superior aspect of L2. There was an L3
superior end plate compression amounting to 25% of vertebral body height. At the L2 level there was a minimal superior
end plate compression.
Dr. Bilkey noted Dr. Kriss assigned a
6% impairment rating based on the AMA Guides and found Paluzi fell within
Lumbar DRE Category II. He also noted Dr.
Kriss stated that after the Kyphoplasty, Paluzi had a 10% to 15% loss of
vertebral body height and in his opinion she was more appropriately classified
for impairment for this comparatively lesser loss of vertebral body height
rather than the original diagnosed loss of vertebral body height.
Dr. Bilkey’s impression was as
follows:
10/30/13 work injury lumbar
strain, L2 compression fracture less than 25% of vertebral body height, L3
compression fracture greater than 25% of vertebral body height but less than
50% vertebral body height, L4 lumbar disc herniation, aggravation of
degenerative disc disease lumbar spine, deconditioned state. Ms. Paluzi has
undergone kyphoplasty L3 level.
Dr. Bilkey assessed a 24% whole
person impairment rating pursuant to the AMA Guides, providing the
following explanation:
Ms. Paluzi has acquired a
permanent partial impairment resulting from the 10/30/13 work injury. In
preparation for the impairment rating, I did review the lumbar MRI scan of
12/3/13. I measured the vertebral body heights for these. On the computer
screen the measurement for these vertebral body heights were L1 12 mm, L2 12
mm, L3 9 mm, L4 13 mm. This means that the L3 compression fracture with
reference to L4 was a 31% loss of vertebral body height. The L3 compression
fracture with reference to L2 is a 25% loss of vertebral body height.
According to the AMA Guides,
Fifth Edition, when there has been injury to multiple levels within one spine
region, the Range of Motion method is used to calculate impairment. This has
not been done by either Dr. El-Naggar or Dr. Kriss. According to Table 15-71,
for the lumbar spine compression fractures, these are to be assigned according
to loss of vertebral body height and then combined. Consequently the L2
compression fracture has 5% whole person impairment and the L3 compression
fracture 7% whole person impairment. These combine to yield 12% whole person
impairment. For loss of trunk active range of motion, according to Table 15-8
for loss of forward bending there is 7% impairment and loss of back bending 5%
impairment. According to Table 15-9 for loss of side bending to the right and
left each there is 1% impairment. Thus for loss of active range of motion of the
trunk there is 14% whole person impairment. Combining the impairments from
Table 15-7, 8, 9 yields 24% whole person impairment and this is the whole
person impairment rating that Ms. Paluzi has acquired solely as a result of the
10/30/13 work injury.
I disagree with the
conclusions of Dr. Kriss with respect to impairment. I think he is right with
respect to the source of ongoing pain actually coming from the L4-5 level. Dr.
Kriss utilized the DRE method to calculate whole person impairment and instead
of using the actual work injury diagnosis, he used the post-operative diagnosis
for this. This in my opinion is incorrect. However, as noted above, it’s the
Range of Motion method that implies since there is prior documentation of
fracture affecting two lumbar vertebrae.
Shoe Show does not maintain Dr.
Bilkey’s impairment rating was assessed prior to MMI; rather, he improperly relied
upon an MRI performed prior to MMI. We
know of no provision within the AMA Guides which would prohibit Dr.
Bilkey from relying upon the result of the December 3, 2013, MRI. More importantly, Dr. El-Naggar did not express
the opinion there had been a change in the height of the vertebral body at the
L3 level due to the Kyphoplasty. Even
though the July 9, 2014, MRI report states “minimal retropulsion is seen to the
superior endplate of L3,” it contains no explanation of what is meant by that
statement. The MRI report does not
establish a change in the loss of vertebral body height. Notably, Dr. El-Naggar noted no change in
Paluzi’s condition following the Kyphoplasty.
The opinions of Dr. Bilkey expressed
in his three reports, the December 2013 MRI, and Dr. El-Naggar’s notes qualify
as substantial evidence sufficient to support the ALJ’s finding Paluzi has a
24% impairment rating. There is
objective medical evidence establishing the existence of a compression fracture
at the L2 level; thus, substantial evidence supports the existence of both an
L3 compression fracture and an L2 compression fracture. That being the case, an assessment of an
impairment rating for both compression fractures by Dr. Bilkey is supported by
substantial evidence.
While the contrary opinions expressed
by Dr. Kriss may have been articulated in greater detail, his opinions
represented nothing more than conflicting evidence compelling no particular
result. Concerning the L3 compression
fracture, Dr. Bilkey noted there was a
31% loss of vertebral body height and based his impairment rating on Table 15-7I
of the AMA Guides as there was a compression of the L3 vertebral body of
26% to 50% thereby meriting a 7% impairment rating. Similarly, he assessed a 5% impairment rating
for a compression of the vertebral body between 0% and 25% for the L2
compression fracture. Although Dr. Kriss
testified there had been a reduction in the loss of the vertebral height there
is no other evidence substantiating Dr. Kriss’ opinion. The ALJ was free to reject Dr. Kriss’
opinion.
In
Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (
This Board has repeatedly held that the
ALJ, as fact-finder, has the authority to pick and choose whom and what to
believe. The AMA Guides is clear that
its purpose is to provide objective standards for the “estimating” of permanent
impairment ratings by physicians.
Because Dr. Bilkey 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. The ALJ is not required to look behind an
impairment rating and 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 (
Accordingly, the January 25, 2016,
Opinion, Award, and Order and the March 18, 2016, Order overruling the petition
for reconsideration are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON STEVEN D GOODRUM
HON CATE A POOLE
771 CORPORATE DR STE 101
LEXINGTON KY 40503
COUNSEL
FOR RESPONDENT:
HON MARK KNIGHT
P O BOX 49
SOMERSET KY 42502
ADMINISTRATIVE
LAW JUDGE:
HON R ROLAND CASE
107 COAL HOLLOW RD STE 100
PIKEVILLE KY 41501
