Workers’
Compensation Board
OPINION
ENTERED: September 9, 2016
CLAIM NO. 201501480 & 201501479
CHRISTOPHER CUNNINGHAM PETITIONER
VS. APPEAL FROM HON. CHRIS
DAVIS,
ADMINISTRATIVE LAW JUDGE
QUAD/GRAPHICS, INC.
and HON. CHRIS DAVIS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
STIVERS,
Member.
Christopher Cunningham (“Cunningham”) seeks review of the April 20, 2016,
Opinion, Award, and Order of Hon. Chris Davis, Administrative Law Judge (“ALJ”)
awarding temporary total disability (“TTD”) benefits, permanent partial
disability (“PPD”) benefits, and medical benefits for a right shoulder work injury
sustained on April 13, 2014. The ALJ
also awarded TTD benefits and medical benefits for a left elbow work injury sustained
on November 19, 2012. Cunningham also
appeals from the May 23, 2016, Order ruling on his petition for
reconsideration.
On appeal, Cunningham challenges the ALJ’s reliance upon
Dr. Stacie L. Grossfeld’s 8% impairment rating for the right shoulder injury
asserting it is not in conformity with the 5th Edition of the
American Medical Association, Guides to the Evaluation of Permanent
Impairment (“AMA Guides”).
On September 16, 2015, Cunningham
filed a Form 101 alleging a work-related injury to his left elbow on November
19, 2012. Cunningham was picking up
pallets when he felt sharp pain in his left elbow. On that same date, Cunningham also filed a
Form 101 alleging an injury occurring on April 13, 2014, when he was carrying a
bundle and felt something tear in his right arm.
In separate Forms 111, Quad/Graphics,
Inc. (“Quad/Graphics”) accepted both injuries as compensable but indicated a
dispute arose as to the amount of compensation due. The ALJ subsequently consolidated the claims.
As a result of the left elbow injury,
Cunningham underwent surgery on June 3, 2013, performed by Dr. Martin Favetto
consisting of a repair of the distal biceps.
On June 11, 2014, Dr. Favetto performed surgery on the right shoulder
consisting of right shoulder arthroscopy, biceps tenodesis, subacromial
decompression, and acromioclavicular joint resection.
Quad/Graphics introduced the report
and deposition of Dr. Grossfeld who assessed 0% impairment for the left elbow injury
and an 8% impairment rating for the right shoulder injury pursuant to the AMA Guides.
Cunningham relied upon the January 6,
2015, report of Dr. Gary Bray who assessed a 4% impairment rating pursuant to
the AMA Guides for the left elbow injury and the August 13, 2015, report
of Dr. Frank Burke who assessed, pursuant to the AMA Guides, a 1%
impairment rating for the left elbow injury and a 17% impairment rating for the
right shoulder injury yielding an 18% whole person impairment rating.
Cunningham’s December 2, 2015,
deposition was introduced, and he testified at the February 24, 2016,
hearing.
Relative to the applicable impairment
rating for each injury, the ALJ provided the following findings of facts and
conclusions of law:
Dr. Burke has assigned an impairment rating of 18%, 1% for the
left elbow and 17% for the right shoulder.
He accepted the Plaintiff’s complaints without question and his
performance on examination, including range of motion testing.
Dr. Grossfeld however testified that in her eighteen
years of experience as an orthopedic surgeon specializing in shoulder surgeries
and treatment she is qualified to determine when a patient is giving full
effort on active range of motion testing.
She determined that the Plaintiff was not giving full effort on active
range of motion and despite the fact that his active range of motion testing
would have resulted in a 14% impairment rating that this is inaccurate.
She did not, as the Plaintiff argues, agree she made
up a rating. She based it on active [sic]
range of motion testing. The Plaintiff has characterized the rating from Dr.
Grossfeld unusable as an incorrect use of the AMA Guides inasmuch as the Guides
require the use of active range of motion.
However it is a proper use of the AMA Guides if the
treating physician can provide a cogent reason within their expertise from
deviating somewhat from the narrow specifics of the Guides. Dr. Grossfeld has done this by explaining
that based on her experience and expertise the Plaintiff’s active range of
motion was invalid.
Additionally, when addressing many types of
conditions and injuries, but especially with extremity joints, range of motion
testing is the preferred method to rate claimants under the AMA Guides. The
Plaintiff’s argument, if accurate, would create a rule that in most, if not
all, claims involving an extremity joint the only rating would be based on active
range of motion. In other words,
“Plaintiff says, Plaintiff gets.” I do not believe either the General Assembly
or the Supreme Court ever contemplated or intended such a result.
Having demonstrated why the rating from Dr.
Grossfeld is in conformity with the AMA Guides it is evident that I intend to
rely on said rating.
The rating assigned by
Dr. Bray is not usable. He assigned in January, 2015 and the Plaintiff received
additional medical treatment after that date. As a matter of course, the Plaintiff
not being at MMI when the rating was assigned the rating from Dr. Bray is not
in conformity with the AMA Guides.
The rating from Burke
is based on his own examination findings and the Plaintiff’s active range of
motion on examination. It mirrors the Plaintiff’s testimony and subjective
complaints.
However I am more
persuaded by the report and opinions of Dr. Grossfeld. Dr. Grossfeld carefully explained her
rejection of the Plaintiff’s active range of motion testing for the right
shoulder. She carefully explained why the Plaintiff did not have a ratable
condition for his left elbow. She is an expert in the treatment and evaluation
of shoulder injuries. The Plaintiff retains a 2% impairment rating for his
right shoulder.
The ALJ calculated the award as
follows:
. . .
The Plaintiff’s
permanent partial disability award shall be 880.81 (AWW) x 2/3 (workers’
compensation rate subject to statutory maximum) x .02 (impairment rating) x .65
(grid factor) x 3.2 (KRS 342.730(1)(c)1.) = $23.99 a week, for 425 weeks, from
April 13, 2014, excluding any periods of TTD, with 12% interest on any past due
portions and with the Defendant taking credit for any benefits paid.
He is also entitled
to all future, work-related and reasonable and necessary medical expense, for
the injuries to the left elbow and the right shoulder.
The ALJ awarded $23.99 per week from
April 13, 2014, for 425 weeks. He also
awarded TTD benefits for the periods extending from April 24, 2013, through
October 28, 2013; February 26, 2014, through March 20, 2014; April 15, 2014,
through July 23, 2014; and August 1, 2014, through August 20, 2015.
Cunningham filed a petition for reconsideration asserting the ALJ
awarded benefits for the right shoulder injury based upon a 2% impairment
rating assessed by Dr. Grossfeld. He
noted Dr. Grossfeld’s lowest impairment rating for the right shoulder is
8%. Cunningham asserted Dr. Grossfeld’s
original report contained a typographical error assigning a 2% impairment
rating for the right shoulder. However,
in her deposition, Dr. Grossfeld stated 2% was a typographical error and Cunningham
had an 8% whole person impairment rating due to the right shoulder injury. Cunningham asserted an 8% impairment rating
would amount to weekly benefits of $125.51 for 425 weeks.
Citing to Jones v. Brasch-Barry General Contractors, 189 S.W.3d
149 (Ky. App. 2006), Cunningham contended Dr. Grossfeld’s 8% impairment rating
was based on a passive range of motion and not in accordance with the AMA Guides. Cunningham argued Dr. Grossfeld should have
based her impairment rating upon the active range of motion measurements she
obtained, which she testified merited a 14% whole person impairment.
Cunningham also asserted an argument concerning the left elbow
injury.
The ALJ’s May 23, 2016, Order ruling on the petition for reconsideration
reads as follows:
1. On reconsideration, the ALJ amends the Opinion and adopts an
impairment rating of 8% regarding the right shoulder. This shall result in
weekly benefits of $125.81 paid over 425 weeks effective of the date of injury.
2. On reconsideration, the ALJ amends the Opinion and adopts an
impairment rating of 0 regarding the left elbow injury. This shall result in
weekly benefits of $0 paid over 425 weeks effective the date of injury.
On appeal, Cunningham argues, as he
did in his petition for reconsideration, Dr. Grossfeld’s impairment rating for
the right shoulder condition is not in accordance with the AMA Guides
and therefore should have been rejected by the ALJ. Citing to Jones v. Brasch-Barry General
Contractors, supra, Cunningham asserts when an evaluating doctor
admits she did not follow the AMA Guides, the resulting impairment
rating cannot constitute substantial evidence.
Nonetheless, the ALJ adopted the impairment rating of Dr. Grossfeld even
though she admitted it was not calculated in accordance with the AMA Guides. Cunningham notes Dr. Grossfeld assigned an 8%
impairment rating for the right shoulder condition based on passive range of
motion measurements obtained during her evaluation. However, during her January 11, 2016, deposition,
Dr. Grossfeld agreed a correct application of the AMA Guides required the
use of active range of motion measurements obtained during the examination. Cunningham notes that utilization of the
active range of motion measurements Dr. Grossfeld obtained resulted in a 14%
impairment rating.
Cunningham observes Dr. Grossfeld acknowledged
she relied upon the passive range of motion measurements because Cunningham
gave a poor effort when she obtained active range of motion measurements. Thus, Cunningham argues her decision to rely
upon her measurements for passive rather than active range of motion
measurements represented Dr. Grossfeld’s “personal approach.” Cunningham maintains use of passive range of
motion measurements is not an option permitted by the AMA Guides nor
does it represent Dr. Grossfeld’s interpretation of the AMA Guides. Cunningham notes the ALJ recognized Dr.
Grossfeld deviated from the AMA Guides, but determined the rating was
reliable because it is a proper use of the AMA Guides if the treating
physician can provide a cogent reason within their expertise for deviating from
the narrow specifics of the AMA Guides.
Cunningham concludes by arguing as follows:
In the instant case,
Dr. Grossfeld had no issue interpreting and following the directions in the AMA
Guides to calculate a 14% whole person rating based on active range of motion.
While the doctor felt her approach of using passive range of motion findings
would provide more accurate information, her role in these situations is to
apply the Guides, not re-write or tweak the Guides.
Whether Dr.
Grossfeld’s deviation from the Guides was justified therefore, is not the
issue. The issue is whether a rating that was admittedly not calculated in
accordance with the Guides can constitute substantial evidence. Controlling
case law indicates that it cannot. The case therefore, should be remanded to
the ALJ with instructions to adopt an impairment rating for the right shoulder
that was calculated in accordance with the AMA Guides.
As the claimant in a workers’
compensation proceeding, Cunningham had the burden of proving each of the
essential elements of his cause of action including the impairment rating
attributable to his injury. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979).
Since Cunningham was unsuccessful in proving the applicable impairment
rating for the shoulder injury is 17%, the question on appeal is whether the
evidence compels a different result.
As
fact-finder, the ALJ has the sole authority to determine the weight,
credibility and substance of the evidence.
Square D Co. v. Tipton, 862 S.W.2d 308 (
The Board, as an appellate tribunal,
may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals
as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise
could have been drawn from the record. Whittaker v. Rowland, 998
S.W.2d 479, 481 (
In her January 6, 2016, report, Dr.
Grossfeld provided the history she obtained from Cunningham and the results of
her examination. Dr. Grossfeld believed
Cunningham attained maximum medical improvement for his shoulder and elbow
conditions on August 20, 2015. She
stated for the right shoulder, Cunningham had a 14% impairment rating for the
upper extremity which equated to a 2% whole body impairment rating. Cunningham had 0% impairment for the left
elbow condition. Dr. Grossfeld disagreed
with the 17% impairment rating Dr. Burke assessed for the right shoulder
condition and the impairment ratings assessed by Drs. Burke and Bray for the left
elbow. Dr. Grossfeld attached a sheet delineating
how she determined the permanent partial impairment rating for the right shoulder
condition based on the AMA Guides, which reads as follows:
ROM% % Page#
Figure/Table
Forward Flexion |
160 |
1 |
476 |
16-40 |
Extension |
|
|
476 |
16-40 |
Abduction |
145 |
1 |
477 |
16-43 |
External Rotation |
60 |
0 |
479 |
16-46 |
Internal Rotation |
60 |
2 |
479 |
16-46 |
Motor Strength If > 12 months from
surgery |
|
|
510 |
16-35 |
AC Excision |
n/a |
10% |
506 |
16-27 |
Dr. Grossfeld’s sheet indicates Cunningham has a 14% upper
extremity rating and an 8% total body permanent impairment rating for the
shoulder injury, calculated pursuant to Table 16-3, Page 439, of the AMA Guides.
During her January 11, 2016, deposition, Dr. Grossfeld testified
her report contained a typographical error.
She stated the rating for the right shoulder condition merited a 14%
upper extremity rating but the 2% impairment rating for the whole body was a
typographical error. The impairment
rating should be 8% for the right shoulder injury. Dr. Grossfeld testified she would dictate an
addendum to that effect. Indeed,
attached to her deposition is a January 11, 2015 letter in which she states the
impairment rating for the right shoulder is 14% upper extremity and 8% total
body based on Table 16-3, Page 439, of the AMA Guides. Also attached is the worksheet, referred to
herein, showing how she arrived at the 8% impairment rating. Handwritten on this worksheet was “[p]assive ROM;
poor effort in active ROM; therefore defaulted to passive ROM #S.” Dr. Grossfeld attached another worksheet calculated
pursuant to the AMA Guides based on active range of motion which yielded
a 14% impairment rating upon which she handwrote the following: “Active ROM [p]oor
effort on patient’s part therefore used passive ROM in report.”
Dr. Grossfeld provided the following explanation as to how
she arrived at the 8% impairment rating:
Q: Okay. Doctor, did you believe as
though – or did you feel as though Mr. Cunningham warranted a permanent
impairment rating per the Fifth Edition of the AMA Guides to the Evaluation of
Permanent Impairment?
A: I did. I determined his PPI rating
for his right shoulder based on range of motion loss and also the fact that he
underwent acromioclavicular joint excision, which gave him a 14 percent rating
for the upper extremity, converting over the eight percent for the total body.
In
reference to his left elbow, he had full range of motion, normal strength,
normal sensation, and that warranted a zero percent PPI rating.
Q: Okay, And just to clarify, Doctor,
looking at the permanent partial impairment rating which is attached to your
nine-page impairment report, I do see where a 10 percent upper extremity
impairment was attributable to just the AC excision alone per the AMA Guides;
is that correct?
A: Correct.
Q: And then there is an additional four
percent of impairment relative to the right shoulder due to decreased range of
motion; is that correct?
A: Correct.
Q: And thereby arriving at a 14 percent
upper extremity impairment rating, which ultimately under the AMA Guides
concerts to eight percent whole person impairment rating?
A: Correct.
On cross-examination, Dr. Grossfeld
was asked to calculate the impairment rating based on an active range of motion
and provided the following testimony:
Q: Are you able to do a quick
calculation to give the judge what the impairment rating would be if it was
based on the active range of motion findings?
A: I can.
Q: Okay. And we’ll give you as long as
you need to do that and hang on for just a second.
THE WITNESS: On Mr. Cunningham’s
physical examination, I felt that he put forth fairly poor effort when doing
active range of motion.
So
when I examine a patient, if I feel that they’re not giving me their full
effort, I will go by my passive range of motion and not the active range of
motion because I feel that that is not – that’s inaccurate information.
But
his active range of motion, he could forward flex 90 degrees, which would give
him a six percent impairment; abduction was 75 degrees; external rotation, 55,
existing. So that would be 14 percent for the range of motion.
And
then you add that to the AC joint excision. That would give him a total upper
extremity of 24 percent, which would then convert over to 14 percent for the
total body.
But,
again, the reason why I didn’t use the active range of motion, I felt these
were inaccurate in his ability to show me how far he was moving his arm.
Yeah.
And I’ve actually put this on a calculation sheet. If you want to use that as
an exhibit, you may.
. . .
Q: All right. Doctor, typically when
you evaluate claimants, if you feel like there is some degree of self-limiting
or symptom magnification, you certainly have no problem listing that in your
report, correct?
A: I do sometimes; sometimes, I don’t.
Typically, I will know if I – if the patient – if I end up using passive –
typically, when I measure range of motion in the shoulder, it’s done actively.
If
I feel like the patient is not exhibiting good effect, then I will do a passive
range of motion, and I’ll use that in my calculation. That’s kind of my little
way of knowing that he or she was not putting forth full effort. Yeah.
Now,
if I see, like, Waddell’s – pardon?
Q: I’m sorry, Doctor. Go ahead, please.
A: When I’m doing, like, a back exam,
and I can really document Waddell’s symptoms – which are physical findings that
have been written in a book – then I will list those.
For
the shoulder, there’s really not, like, Waddell’s symptoms for the – for the
shoulder. It comes with doing this for 18 plus years and specializing in
shoulder surgery. You kind of get a sense when someone’s putting forth effort
and when they’re not.
And
then when there’s such a difference between the passive and active, then there
is – typically, there’s some sort effort issues going on with the patient.
And
to be clear, I should have put that in my notes, that there was limited effort
on his behalf.
Dr. Grossfeld acknowledged that when
she examined Cunningham, the passive range of motion caused him significant
discomfort, and her report reflects that fact.
She also acknowledged the AMA Guides call for the active range of
motion measurements to be utilized in arriving at an impairment:
Q: Thank you, Doctor.
And,
Doctor, you would agree the examples in the AMA Guides on the shoulder range of
motion – and I’m looking at the examples given on page 475 and 476.
Certainly
the basic instructions call for range of motion of the shoulder ratings to be
based on active range of motion measurements, correct?
A: Correct. Correct.
However, Dr. Grossfeld provided a
more thorough explanation as to why she could utilize the passive range of
motion in calculating an impairment rating pursuant to the AMA Guides.
Q: Doctor, I have a few quick follow-up
questions for you. I say “quick.” Hopefully, I’m right about that.
First
off, can you just tell the judge again why you felt it necessary to go with Mr.
Cunningham’s passive range of motion measurements as opposed to his active
relative range of motion relative to the right shoulder?
A: I am fairly well versed in the Fifth
Edition Guides to Permanent Impairment, and I know that you are supposed to
list active range of motion.
However,
when I have a patient who puts forth what I would consider poor effort, I will
use passive range of motion. So that is why I did that with this particular
patient –
Q: Okay.
A: -- because you can have any patient
come in and not give effort.
I
mean, I have many patients – even my own patients – that won’t put forth any
effort, and they have extremely poor range of motion. For whatever reason, they
have limited effort.
So
you have to kind of get a sense as to who is giving you good effort and who is
not, and that’s something a bit of the art and not the science of medicine.
But
he was not putting forth full effort, and he was putting forth what I would
consider not full effort; therefore, I went with the passive range of motion.
Q: Okay. Ultimately, Doctor, based upon
your education, your training, your experience, your familiarity with the AMA
Guides, did you feel as though Mr. Cunningham’s active range of motions [sic]
were an accurate reflection of his true level of impairment and disability?
A: I did not. The – I did not.
Q: Okay. According, do you feel as
though the 14 percent whole body impairment rating – which you quickly
calculated for us based upon those active range of motion measurements – is an
accurate and reliable reflection of Mr. Cunningham’s true level of impairment
and disability.
A: I do not.
Q: Ultimately, what is the rating that
you feel best reflects Mr. Cunningham’s true level of impairment and disability
here?
A: 14 percent for the upper extremity,
and eight percent for the total body.
Cunningham relies, in part, upon the
following response by Dr. Grossfeld:
Q: Doctor, I’m just going to try to
wrap up with a few more questions here.
So
the kind of rule that you cited a little bit earlier – if I think they’re
giving poor effort on active range of motion, I’ll give a rating using the
passive range – that’s, for lack of a better word, really your personal
approach –
A: Yes.
Q: -- to these situations?
Would that be fair?
A: Yes.
Q: Okay. And so whether we agree with
the technicalities or the letters of the AMA Guides, that’s irrelevant.
If
you want to follow the guides strictly, the 14 percent total body number that
you cited to me based on active range of motion is the impairment rating that
is done in accordance with the guidebook, correct?
A: Correct.
The following exchange between Quad/Graphics’ counsel and
Dr. Grossfeld then occurred:
Q: I get to follow up on that last set
of questions, Doctor.
Are
you aware of anything in the Fifth Edition of the AMA Guides that would insist
upon you using range of motion measurements, active or passive, that you did
not find to be accurate and reliable based on your training, your education,
your experience?
A: I’m sorry. Can you repeat the
question?
Q: Sure. Are you aware of anything in
the AMA Guides that says you as an evaluator have to use range of motion
measurements that you believe are inaccurate –
A: No.
Q: -- and not reliable –
A: Right.
Q: -- based upon your training, your
education, and your experience?
A: No. I’m not aware of where it says
that in the Guides. If the patient –
Q: Okay.
A: -- is not giving –
Q: I’m sorry, Doctor. It sounds like
you were cut off. I heard, “If the patient is not giving,” and that’s the last
I heard.
A: If the – and I just want to make
sure that I’m understanding the question appropriately.
My
opinion is if the patient is not giving me effort, then I can’t give you an
accurate PPI rating, so I can assist in getting a better PPI rating if I use a
passive range of motion.
And
based on the experience and et cetera, I don’t know where anywhere in the
guidebook it says that you can’t – you can’t use that.
It
says that you should use the active range of motion, but if I have ab [sic]
unreliable – what I would consider unreliable examination, that would give me
an unreliable PPI rating, which is incorrect, which would be misinformation.
Q: And if I’m not mistaken, Doctor –
and correct me if I’m wrong – the Guides do stress in scenarios like that you
use the most accurate measurements available to the evaluator in order to
arrive at the most accurate and correct impairment rating. Am I correct about
that?
A: Correct.
Q: Okay. And from what I’m hearing from
you, is that what you attempted to do here – again, based upon your training,
your education, your experience, and your familiarity with the Guides – take
those range of motion measurements that you thought best reflected Mr.
Cunningham’s ability and thereby arrive at a permanent impairment rating?
A: Correct.
We disagree with Cunningham’s
assertion Dr. Grossfeld’s testimony demonstrates she deviated from the AMA Guides
in assessing the 8% impairment rating for the right shoulder injury. Because she believed Cunningham was not
giving a full effort during the course of her evaluation, Dr. Grossfeld
concluded she could not utilize his active range of motion measurements in
calculating the right shoulder impairment rating. Without question, in conducting any
evaluation a doctor must assess the credibility of the individual whom she is
examining and evaluating. That includes
determining whether the individual has accurately recounted his or her medical
history, the nature of his or her symptoms, and has provided a true and
accurate example of his or her physical capabilities. Here, Dr. Grossfeld concluded that Cunningham
was deliberately not providing a true example of his range of motion; thus, she
discounted it and relied upon the passive range of motion measurements in
arriving at an impairment rating. This
is clearly the doctor’s prerogative. A
doctor is not required to assess an impairment rating based upon examination
results the doctor believes were falsified.
To follow Cunningham’s logic, the doctor is required to rely upon the
claimant’s purported capabilities, however falsified. Acceptance of Cunningham’s position would
lead to absurd results.
The following is contained on page 19 of the AMA Guides
and is extremely germane to this issue.
2.5c Consistency
Consistency tests are designed to
ensure reproducibility and greater accuracy. These measurements, such as one
that checks the individual’s lumbosacral spine range of motion (Section 15.9)
are good but imperfect indicators of people’s efforts. The physician must use
the entire range of clinical skill and judgment when assessing whether or not
the measurements or tests results are plausible and consistent with the
impairment being evaluated. If, in spite of an observation or test result, the
medical evidence appears insufficient to verify that an impairment of a certain
magnitude exists, the physician may modify the impairment rating accordingly
and then describe and explain the reason for the modification in writing.
The above provision contained within
the AMA Guides permitted Dr. Grossfeld to discount the active range of
motion measurements she obtained because she believed they were not as severe
as Cunningham would have her believe. In
that case, Dr. Grossfeld was permitted to modify the impairment rating in
accordance with what she believed to be accurate range of motion
measurements. In doing so, Dr. Grossfeld
was required to describe and explain the reason for the modification. The record reveals Dr. Grossfeld adequately
described and explained her reasons for using the passive range of motion
measurements instead of the active range of motion measurements in obtaining an
accurate impairment rating. Consequently,
we believe Dr. Grossfeld’s 8% impairment rating is in accordance with the AMA Guides. In referencing the AMA Guides in
support of her opinions, Dr. Grossfeld explained why she believed Cunningham
did not have a 14% impairment rating based upon the active range of motion
measurements and the reasons why the 14% impairment rating was not an accurate
reflection of Cunningham’s physical capabilities. Thus, we find no error in the ALJ’s reliance
upon Dr. Grossfeld’s 8% impairment rating for the shoulder injury.
Unlike the physician in Jones v. Brasch-Barry
General Contractors, supra, Dr. Grossfeld did not opine the 8%
impairment rating she assessed for the right shoulder injury was not in
accordance with the AMA Guides.
Rather, she steadfastly contended the 8% impairment rating was in
accordance with the AMA Guides.
Concerning the ALJ’s determination Cunningham has an 8%
impairment rating as a result of the shoulder injury, 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.
Grossfeld is a licensed medical doctor, the ALJ could appropriately assume her
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 (Ky. App. 1985). Hence, we
find no error in the ALJ’s reliance upon Dr. Grossfeld’s opinion or the ALJ’s
ultimate determination that Cunningham has an 8% impairment rating as a result
of the right shoulder injury. Because
the ALJ’s determination Cunningham has an 8% impairment rating due to the right
shoulder injury is supported by substantial evidence and the record does not
compel a different result, we are without authority to disturb his decision on
appeal.
Accordingly, the April 20, 2016,
Opinion, Award, and Order and the May 23, 2016, Order ruling on the petition
for reconsideration and amending the award for the right shoulder injury are AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON BRADLY SLUTSKIN
131 MORGAN ST
VERSAILLES KY 40383
COUNSEL
FOR RESPONDENT:
HON JO ALICE VAN NAGELL
300 E MAIN ST STE 400
LEXINGTON KY 40507
ADMINISTRATIVE
LAW JUDGE:
HON CHRIS DAVIS
657 CHAMBERLIN AVE
FRANKFORT KY
40601