*/
Workers’
Compensation Board
OPINION ENTERED: November 2, 2018
CLAIM NO. 201558150
JAMES T. COMLEY PETITIONER
VS.
APPEAL FROM HON. MONICA RICE-SMITH,
ADMINISTRATIVE
LAW JUDGE
ADVANCED PAVING &
CONSTRUCTION INC;
And HON. MONICA
RICE-SMITH,
ADMINISTRATIVE LAW
JUDGE RESPONDENTS
OPINION
AFFIRMING IN PART
VACATING IN PART
AND REMANDING
* * *
* * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER,
Members.
RECHTER,
Member. James
Comley appeals from the September 25, 2017 Opinion, Award and Order and the
October 30, 2017 Order rendered by Hon. Monica Rice-Smith, Administrative Law
Judge (“ALJ”). The ALJ determined Comley
is permanently partially disabled and determined a referral for pain management
and contested prescriptions are not compensable. On appeal, Comley argues the ALJ erred in
failing to find he sustained a 13% impairment rating, failing to address
improper litigation conduct of counsel for Advanced Paving and Construction
(“Advanced”), improperly denying medical treatment, expenses, and travel, and
failing to find him permanently totally disabled. Additionally, Comley argues the use of the
DRE method in the American Medical Association,
Guides to the Evaluation of Permanent Impairment, 5th Edition
(“AMA Guides”) for spinal injuries is unconstitutional. For the reasons set forth herein, we affirm
in part, vacate in part and remand.
Comley, who is fifty-four
years of age, graduated from high school, but stated he was in remedial reading
and special education classes. While in
high school, he completed vocational classes in shop and construction. Comley stated he had to have assistance with
reading to complete his driver’s license examination, and he cannot write a
note to someone. He has never operated a
computer and has never performed administrative or clerical work.
Comley has worked as a
laborer for a series of employers. He
was hired as a heavy equipment operator for Advanced beginning on May 14,
2014. He operated bulldozers, high
lifts, track hoes, backhoes, and other types of construction equipment. Operating the equipment over rough terrain
caused him to be bounced, twisted and turned.
He also helped with manual labor, lifting twenty-five to fifty pounds. On May 15, 2015, he was driving a dump truck
that flipped over onto its side. Comley
experienced pain in his lower back, leg, left shoulder, and neck. He returned to work the following
Monday. Comley visited Dr. Chris Godfrey
in June 2015 and continued to work until December 9, 2015. At that time, his pain had increased and his
doctor took him off work. Since the work
injury, Comley has constant back pain, neck and right shoulder pain running
down to his elbow, and stiffness in his left shoulder and arm. He can sit for fifteen or twenty minutes. Most of his pain is in his lower back, and
requires him to frequently change position between sitting, standing, walking
and lying down to relieve his pain.
Comley testified
regarding previous treatment for back and neck pain. In 2011, he was off work with back pain for a
week or two. He received injections from
Dr. Thad Jackson. He took Aleve or Advil
from time to time, but his back did not bother him enough to keep him from
working. Comley also previously treated
with Dr. Godfrey from July 10, 2011 through October 20, 2014 for an acute onset
of low back pain after lifting a cat, though he also gave a history of back
pain for approximately one year. A
lumbar MRI revealed bulging discs from L3 through S-1. He again treated with Dr. Godfrey on April
20, 2015 for complaints of arthritis in hands and elbows. Dr. Godfrey assessed lateral epicondylitis,
tennis elbow in left arm, and bilateral hand osteoarthritis with probable
bilateral carpal tunnel syndrome. His
assessment also included low back pain, right foot plantar fasciitis, gout, and
elevated cholesterol.
Following the work accident, Comley
returned to Dr. Godfrey on June 16, 2015.
Dr. Godfrey’s office notes indicate an “acute visit” for neck and back pain sustained in a dump
truck accident. He diagnosed neck, low
back, and right shoulder pain. A June
23, 2015 treatment note indicates a follow-up for right shoulder, back and neck
problems. Dr. Godfrey noted severe
degenerative disc disease in the neck. A
June 25, 2015 treatment note indicates a follow-up for the right shoulder. The diagnoses were right shoulder pain, low
back pain and degenerative joint disease.
Comley
next treated with Dr.
Daniel Meece. A November
30, 2015 cervical MRI
revealed degenerative disc and facet changes at multiple levels, with varying
degrees of canal stenosis and neural foraminal narrowing, worse at C4-5 and
C3-4 followed by C5-6. A lumbar MRI
revealed degenerative changes at multiple levels, worse at L2-3, L3-4 and
L4-5. On December 1, 2015, Dr. Meece noted Comley
has spinal stenosis and degenerative disc disease with a pinched nerve. He restricted Comley to light duty with no
lifting. Dr. Meece obtained a CT of the
lumbar spine on December 16, 2015. When
compared to a CT scan dated October 2011, the multilevel degenerative disc
disease appeared progressed from 2011, worst at the L4-5 and L5-S1 levels. On August 25, 2016, Dr. Meece restricted
Comley to no lifting over twenty-five pounds, no extended sitting longer than
twenty minutes, no extended bending, and no return to work until further
notice. On December 21, 2016, Dr. Meece
noted Comley had seen a neurosurgeon for complete evaluation. He indicated Comley has reached his maximum
level of function and is not able to return to his job.
Comley
treated with Dr. Mitchell
J. Campbell from December 9, 2015 through December 31, 2015. He initially presented for evaluation of low
back pain and some neck pain present over the past five or six months. He also had right leg pain, numbness, and
tingling. Dr. Campbell diagnosed severe
degenerative changes and cervical spondylosis.
He stated Comley should remain off work until January 11, 2016. A
December 31, 2015 record indicates Comley presented for follow-up of increasing
back pain. Dr. Campbell noted Comley
has severe degenerative spondylosis throughout his spine.
Dr. James W. Jackson saw
Comley on referral from Dr. Campbell on January 27, 2016. Comley initially
presented with complaints of low back pain with an onset of approximately May
15, 2015 secondary to a dump truck accident.
Comley had pain in the lumbar region radiating to the right
anterolateral thigh, stopping at the knee. Dr. Jackson diagnosed intervertebral
disc degeneration and spondylosis with myelopathy in the lumbar region. He administered epidural steroid injections
beginning on February 16, 2016.
Comley returned
to Dr. Jackson on April 5, 2016 for a neurosurgical evaluation at Dr. Meece’s
suggestion. Comley presented with complaints
of back and right leg pain. Dr. Jackson diagnosed lumbago, lumbosacral
radiculopathy, lumbar spondylosis, cervicalgia, and cervical spondylosis with
radiculopathy. He noted Comley has
failed conservative therapy for his low back pain, and planned to follow-up to
discuss surgery.
Dr. John Guarnaschelli performed an independent
medical evaluation on July 13, 2016. He
diagnosed a muscular-skeletal/whiplash related disorder secondary to the
work-related accident, a questionable acromial clavicular fracture, and
degenerative disc disease of both the cervical and lumbar spine. He also noted there is evidence of a
pre-existing active disease of the cervical and lumbar spine based on
radiographic evidence dating back to 2011.
Dr. Guarnaschelli opined Comley has had a change in condition due to the
work-related event. He noted the
objective findings are secondary to a muscular-skeletal injury. Comley does not have objective or
radiographic evidence of a neurologic dysfunction. Comley reached maximum medical improvement twelve
months following the injury. Dr.
Guarnaschelli assigned 5% ratings for the cervical and lumbar spine for a
combined 10% whole person impairment with 50% apportioned to the work injury
and 50% to
the pre-existing active condition. He
opined Comley would need continued medical monitoring for his opiate medication
regime. Dr. Guarnaschelli agreed with the
restrictions suggested by Dr. Meece and considers those restrictions
permanent. He opined Comley could not
return to his previous employment.
Dr. James Farrage, Jr. performed
an independent medical evaluation on April 5, 2017. Dr. Farrage diagnosed status post cervical and lumbar
myoligamentous strains with secondary myofascial pain symptoms and premorbid
multilevel axial spine spondylosis. He
also diagnosed possible right scapular hairline fracture, resolved and right
acromioclavicular arthropathy. Comley
had continued issues with pain, restricted range of motion, decreased strength,
and impaired functional capacity without any interval decline in his focal
neurological status. Dr. Farrage stated
the injury was the cause of Comley’s complaints. Dr. Farrage stated, “There is a clear
temporal relationship to the work injury which exacerbated his premorbid spine
condition into disabling reality. The
repetitive axial loading of the spine associated with his occupation
contributed to the accelerated degenerative changes.” Dr. Farrage restricted Comley to light level occupations with
a lifting restriction of no more than twenty pounds on an occasional basis and
up to ten pounds frequently. He also
noted Comley should sit/stand a maximum of thirty minutes at a time with
frequent changes in position. He should
avoid repetitive bending, stooping or twisting.
He can negotiate two flights of stairs occasionally. He should avoid ladder climbing or working
from unprotected heights. Dr. Farrage
assigned no driving restrictions. Dr.
Farrage stated, “the patient satisfies the criteria for DRE lumbar category II
resulting in an 8% whole person impairment with a value which is apportioned by
25% due to pre-existing condition resulting in a 6% whole person impairment
rating.” He assigned a 5% impairment rating
for the cervical spine. Thus, Dr.
Farrage assigned an 11% combined impairment rating pursuant to the AMA Guides. He stated Comley did not have an active
impairment prior to this injury. Dr.
Farrage felt Comley reached maximum medical improvement on May 15, 2016, and
does not have the physical capacity to return to his previous job.
In a June 11, 2017 supplemental report,
Dr. Guarnaschelli indicated he reviewed additional treatment records and Dr.
Farrage’s report. Dr. Guarnaschelli’s
opinion did not change. He noted Comley
had documentation of a pre-existing and active condition of the spine, which by
radiographic studies was interpreted as severe by consulting physicians. The work-related injury would be best
described as aggravation of pre-existing degenerative spinal disorders. He agreed with Dr. Meece’s prescriptions and
restrictions.
Dr.
Michael Chunn performed a utilization review on February 7, 2017. He stated the continued use of Prednisone,
Oxycodone, Meloxicam and Diazepam is not medically reasonable or necessary for
the cure and relief of the work injury. He felt Comley sustained an
exacerbation of his prior back condition because of the work injury and that
the active effects of the work injury have long since subsided. He stated there
is no indication Comley suffers anxiety as a result of the work injury.
Stephen
B. Schnacke Ed.D. performed a vocational assessment on April 5, 2017. He concluded Comley had no active vocational
disability prior to the work injury. His
pre-existing issues did not prevent him from performing all of the prescribed
duties of his usual job. Comley is an
advanced age worker, which adversely affects his competitiveness in the work
place. Comley’s acquired vocational
skills are specific to the type of work he normally performed. He does not appear to be functioning at a
level consistent with a typical high school graduate, and he does not possess
transferable work skills to occupations different from his customary form of
employment. Results of cognitive testing
suggested memory problems and weaknesses based upon his academic issues. Comley’s current cognitive functioning is
below average. Dr. Schnacke felt Comley
would be limited to sedentary jobs and a few light jobs. At a minimum, he has a 75% loss of
occupational access. If the limitations
from Drs. Farrage and Campbell are accepted, Comley would not be able to
perform sedentary work on a regular and sustained basis.
The ALJ concluded Comley
sustained a work-related injury to his low back and neck. She noted both Dr. Farrage and Dr.
Guarnaschelli found Comley had a change in his condition because of the
work-related event. Relying on Dr.
Farrage’s opinion and Comley’s testimony, the ALJ determined Comley sustained
an 11% whole person impairment. Based on
the lack of proof that the prior back problems caused any impediment to his
employment, and the opinions of Drs. Farrage and Schnacke, the ALJ was
persuaded that Comley did not have a pre-existing active impairment or
disability. She further determined
Comley cannot return to the work he was performing at the time of his injury
and is entitled to a 3.2 multiplier based on the lack of physical capacity and
his age. The ALJ noted Drs. Farrage,
Guarnaschelli, and Meece agree that Comley cannot return to the work he was
doing at the time of his injury. The ALJ
entered the following findings regarding the extent of Comley’s disability:
The ALJ finds Comley is not entitled to
permanent total disability (PTD). Pursuant to Osborne v. Johnson, 432
S.W.2d 800 (KY 1968), the ALJ must evaluate the post-injury physical,
emotional, intellectual, and vocational status when determining entitlement to
PTD. When determining entitlement PTD or total occupational disability,
restrictions due to non-work related conditions cannot be considered. City
of Ashland v. Stumbo, 461.S.W.3d 392 (KY 2015).
The ALJ finds
the work restrictions of Dr. Meece the most credible. Dr. Meece has treated
Comley and is in the best position to evaluate his physical abilities. Dr. Meece restricted Comley to no lifting
over 25 pounds ever, no extended sitting longer than 20 minutes and no extended
bending. Although Dr. Schnacke opined Comley is 100% disabled, his opinion is
based on Comley being restricted to sedentary work. The ALJ is persuaded by the
restrictions of Dr. Meece, which do not limit Comley to sedentary work. Dr.
Meece’s restrictions do not limit Comley’s ability to stand and walk. Comley is
only fifty-three years old. He has a high school education. Although he
testified he is illiterate, the testing of Dr. Schnacke did not reveal Comley
was illiterate only below average.
Based on the foregoing, Comley is not
totally occupationally disabled and is not entitled to PTD benefits.
The ALJ found as follows
regarding the medical disputes:
In a pre-award medical fee dispute, the
burden of proof regarding reasonableness and necessity is on the employee. Addington
Resources, Inc. v. Perkins, 947 S.W.2d 421 (KY 1997).
The ALJ finds that Comley has failed to
satisfy his burden of proving the contested referral to pain management and the
contested prescriptions for Prednisone, Oxycodone, Meloxicam and Diazepam are
not [sic] compensable. The Defendant/Employer filed 112 medical fee disputes
regarding the contested referral to pain management and the contested
prescriptions. Comley presented no specific evidence regarding the
reasonableness and necessity of the contested medical treatment. Although Dr.
Godrey’s treatment record describe his treatment plan, he gives no specific
opinion regarding any of the contested medical treatment. Dr. Godfrey explained
his treatment plan was for pain control, therapy evaluation, and neurosurgical
evaluation and would continue his regimen with some IV Decadron. Further, Dr.
Meece whose treatment is contested gave no opinion with regard to what his
treatment plan was or whether it was reasonable and necessary.
Comley filed a petition
for reconsideration raising essentially the same arguments he raises on
appeal. By order dated October 30, 2017,
the ALJ sustained Comley’s petition to the extent any unreimbursed
medical and travel expenses that comply with KRS 342.020, KRS 342.035, and 803
KAR 25:096 should be reimbursed. The ALJ
overruled the remainder of Comley’s Petition for Reconsideration, providing the
following explanation:
The ALJ analyzed the entire record required by Ira A. Watson v.
Hamilton, 34 S.W.3d 48 (KY 2000) and Osborne v. Johnson, 432 S.W.2d
800 (KY 1968). The ALJ summarized the testimony of Comley regarding his
abilities and considered same. The ALJ chose to rely on the restrictions of Dr.
Meece as the most credible evidence of Comley’s physical abilities. Further, in
light of Comley’s age and his cognitive testing by Dr. Schnacke the ALJ
believed he could find work within his abilities as described by Dr. Meece.
Further, the ALJ relied on the impairment rating of 11% as assessed by Dr.
Farrage. The ALJ explained the lack of evidence to establish the compensability
of the contested medical treatment. The ALJ analyzed all the evidence in this
case and explained the evidence relied on in rendering her decision. The Plaintiff’s
Petition for reconsideration is simply a rearguing of the Plaintiff’s case and
therefore inappropriate for a Petition for Reconsideration.
On appeal, Comley first
argues he is entitled to an award based upon a 13% impairment rating. According to Comley, the ALJ allowed an
exclusion for pre-existing impairment despite determining there was no prior
impairment. Comley argues Dr. Farrage
made an error of law in apportioning the 8% impairment rating for the lumbar
spine. Pursuant to Finley v. DBM
Technologies, 217 S.W.3d
261 (Ky. 2007), to be characterized as a pre-existing active
impairment, the condition must be symptomatic and impairment ratable
immediately prior to the injury. Dr.
Farrage indicated there was no prior active impairment and opined the work
injury exacerbated Comley’s premorbid spine condition into disabling
reality.
Because we are unable to
discern whether the ALJ considered the entirety of Dr. Farrage’s opinions
regarding the lumbar impairment rating, we vacate the ALJ’s finding regarding
the impairment rating. The ALJ’s summary
of Dr. Farrage’s rating refers to the 11% rating and his opinion that there is
no pre-existing active impairment.
However, it does not address the components of the rating. Our concern is that Dr. Farrage assigned an
8% impairment rating for the current lumbar condition. He then apportioned 2% to a “pre-existing
condition.” Significantly, Dr. Farrage
stated there was no active impairment prior to the injury, and the ALJ accepted
that opinion. Dr. Farrage noted the
injury exacerbated Comley’s premorbid spine condition into disabling
reality. One reasonable and permissible
reading of the entire Form 107 would be that Dr. Farrage believed the work
injury itself directly produced a 6% impairment rating and a 2% impairment
rating for arousal of a pre-existing dormant condition. Of course, arousal of a pre-existing dormant
condition is compensable. McNutt Construction/First General Services
v. Scott, 40
S.W.3d 854 (Ky. 2001). While
Dr. Farrage ultimately stated there is an 11% impairment related to the injury,
it is permissible for the ALJ to find a 13% impairment based upon the entirety
of Dr. Farrage’s Form 107 and reasonable inferences drawn therefrom.
In Finley, the Court of Appeals
stated a pre-existing condition is deemed active, and therefore not
compensable, if it is "symptomatic and impairment ratable pursuant to the
AMA Guidelines immediately prior to the occurrence of the work-related
injury." Id. at 265. Moreover, as an affirmative defense, the
burden to prove the existence of a pre-existing active condition falls on the
employer. Id. While Dr. Guarnaschelli and Dr. Farrage
attempted to apportion causation of the impairment, neither directly stated the
condition was impairment ratable immediately prior to the work injury. The ALJ specifically found Comley
did not have a pre-existing active impairment or disability. On
remand, the ALJ must clarify her interpretation of Dr. Farrage’s opinion and
determine whether Comley is entitled to a 6% or 8% impairment rating for his
lumbar condition.
Next, Comley contends
Advanced’s counsel engaged in improper litigation conduct by contacting
Comley’s expert medical witness, and used improperly obtained information to
discredit his witness. Further, Comley
contends Advanced’s counsel improperly testified and expressed her opinion of
the credibility of Drs. Guarnaschelli and Farrage in violation of SCR
3.130(3.7) which provides that “a lawyer shall not act as an advocate at a
trial in which the lawyer is likely to be a necessary witness….”
Comley did not object at
the hearing or in his brief to the ALJ regarding these issues. Comley did not preserve the issues concerning
the conduct of counsel as contested issues at the benefit review conference. 803 KAR 25:010 § 13(12) provides only those
issues preserved at the benefit review conference
for determination by the ALJ “shall be the subject of further proceedings.” Therefore, this allegation of error on appeal
is not preserved and we decline to address it.
Comley argues the ALJ
improperly denied medical treatment, expenses and travel, noting Advanced
failed to comply with the statutory and regulatory requirement to file a motion
to allow it to select a treating physician.
Comley contends Advanced’s failure to submit an affidavit establishing
one of the grounds in KRS 342.020(7), precludes it from denying payment for
medical care he has received or will require in the future. Comley contends the ALJ is without
jurisdiction to take any action interfering with his medical care. He further contends the failure to file a
motion to join Dr. James Jackson and Dr. Meece pursuant to 803 KAR 25:012 §1(5)
prevents the ALJ from ruling on referral for pain management. Comley asserts the utilization reviews were
ineffective because no Form 112 was filed, nor did Advanced file a motion to
join providers. Additionally, Comley argues
Advanced incorrectly blames him for its failure to notify KEMI in a timely
manner of the occurrence of the injury.
We first note KRS
342.020(7) is a permissive provision allowing the employer to file a motion to
select a treating physician under certain specified conditions. It is not a mandatory provision, and such a
motion is not a prerequisite to pursuing a medical fee dispute concerning the
reasonableness and necessity of proposed medical treatment. The remainder of Comley’s objections are
raised for the first time on appeal and are not properly preserved. The issues regarding failure to comply with
803 KAR 25:010 § 12 were not preserved in the BRC order. Additionally, we note 803 KAR 25:012 Section
1 (6)(b) requires that a Form 112 “shall be served ... upon the medical
providers. If appropriate, the pleadings shall also be accompanied by a
motion to join the medical provider as a party.” The regulatory language
with respect to notification is mandatory. Here, Dr. Meece and Dr. James
Jackson received notice via the Form 112 on March 22, 2017. However, they
made no attempt at any time to address the medical fee dispute. The regulatory language requires joinder “only
if appropriate.” The crucial question is whether the medical provider is
an aggrieved person to the extent that an adverse ruling in the dispute would
provide an independent basis for appeal. We believe that the
provider in this instance is not so aggrieved that any failure to join it as a
party is in error. The medical dispute involved a proposed referral for
pain management and continued use of prescription medication. On reconsideration, the ALJ ordered
reimbursement for any unreimbursed medical and travel expenses that comply with
the statutes and regulations. Because
the providers have no vested interest in prospective treatment, their inclusion
was not necessary.
Comley argues he is entitled
to an award of permanent total disability benefits. Comley cites his own testimony that he is not
capable of performing his prior work and does not know of any work he can
perform. He emphasizes Advanced failed
to present evidence of jobs he is capable of performing. Instead, Comley believes the ALJ erroneously
relied on Social Security work classifications rather than specific job
requirements, and failed to properly weigh the facts. According to Comley, the established facts
compel a finding of total disability. Moreover,
Comley argues the ALJ failed to perform a complete analysis as required by Ira
A. Watson Department
Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
As the claimant in a
workers’ compensation proceeding, Comley bore the burden of
proving each of the essential elements of his cause of action. Snawder
v. Stice, 576 S.W.2d 276 (Ky. App. 1979). Because he was unsuccessful
in proving he sustained a permanent total disability, the question on appeal is
whether the evidence compels a different result. Wolf Creek Collieries
v. Crum, 673 S.W.2d 735 (Ky. App. 1984).
“Compelling evidence” is defined as evidence that is
so overwhelming, no reasonable person could reach the same
conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224
(Ky. App. 1985) superseded by
statute on other grounds as stated in Haddock v. Hopkinsville Coating
Corp., 62 S.W.3d 387 (Ky. 2001).
Permanent
total disability is defined in KRS 342.0011(11)(c) as the condition of an
employee who, due to an injury, has a permanent disability rating and has a
complete and permanent inability to perform any type of work as a result of the
injury. KRS 342.0011(11)(c). In determining whether a worker is totally
disabled, the ALJ must consider several factors including the workers’ age,
educational level, vocational skills, medical restrictions, and the likelihood
he can resume some type of work under normal employment conditions.
An ALJ enjoys wide
ranging discretion in granting or denying an award of permanent total
disability benefits. Seventh
Street Road Tobacco Warehouse v. Stillwell, 550 S.W.2d 469 (Ky. 1976). Comley’s arguments
on appeal regarding the extent of his disability are essentially an attempt to
have the Board re-weigh the evidence and substitute its opinion for that of the
ALJ. We may not do so. The evidence falls short of compelling a
finding Comley sustained a permanent total disability. Indeed, it is rare that it can be said the evidence compels a greater or lesser degree of occupational
disability. Millers Lane Concrete
Co., Inc. v. Dennis, 599 S.W.2d 464, 465 (Ky. App. 1980). We further note that while the claimant’s
testimony may constitute substantial evidence to support an award, that
testimony does not compel any particular result. Hush v. Abrams, 584 S.W.2d 48 (Ky.
1979).
It
is clear from the ALJ’s Opinion and the Order on reconsideration that she
understood and applied the correct standard in determining the extent of
Comley’s disability. After a thorough
review of the evidence, the ALJ simply was not convinced Comley sustained a
permanent total disability. The ALJ
accepted the restrictions of Dr. Meece, which do not preclude sedentary and
some light work as acknowledged by Dr. Schnacke. The ALJ considered Comley’s age and his below
average intellectual ability. While
Comley has identified evidence supporting a different conclusion, there was
substantial evidence presented to the contrary.
As such, the ALJ acted within her discretion to determine which evidence
to rely upon, and it cannot be said the ALJ’s conclusions are so unreasonable
as to compel a different result. Ira
A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Finally, Comley argues
the use of the AMA Guides for ratings of spinal injuries is
unconstitutional. Comley asserts the use
of the DRE method is improper because the table is based upon a diagnosis
rather than functional limitations.
The issue of the
constitutionality of using the DRE method in the AMA Guides for spinal
injury was only raised on appeal and is not properly preserved. Constitutionality of the statute was not
listed as a contested issue in the Benefit Review Conference Order. At the hearing, neither party noted additional
issues. Comley’s brief before the ALJ
did not address the issue. Finally, we
note KRS 418.075 requires that notice be provided to the Attorney
General in any proceeding which involves the constitutionality of a
statute. After reviewing the record, we
can find no indication notice was given to the Attorney
General.
Most
importantly, as an administrative tribunal, this Board has no jurisdiction to
determine the constitutionality of a statute enacted by the Kentucky General
Assembly. Blue Diamond Coal Co. v.
Cornett, 189 S.W.2d 963 (Ky. 1945).
Likewise, an ALJ lacks the power and jurisdiction to review and
determine the constitutionality of the statute.
Accordingly, the
September 25, 2017 Opinion, Award and Order and the October 30, 2017 Order
rendered by Hon. Monica Rice-Smith, Administrative Law Judge, are hereby AFFIRMED IN PART and VACATED IN PART. This
claim is REMANDED for further
findings regarding the impairment rating related to the lumbar condition and
entry of an amended award, if appropriate.
ALL CONCUR.
DISTRIBUTION:
COUNSEL FOR PETITIONER: LMS
HON. NORMAN HARNED
PO BOX 9547
BOWLING GREEN, KY 42102
COUNSEL FOR RESPONDENT:
LMS
HON. LYN DOUGLAS POWERS
1315 HERR LANE #210
LOUISVILLE, KY 40222
ADMINISTRATIVE LAW JUDGE: LMS
HON. MONICA RICE-SMITH
ADMINISTRATIVE LAW
JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
