KENTUCKY DEPARTMENT OF TRANSPORTATION V. BETTY HIMEBAUGH; HONORABLE J. LANDON OVERFIELD, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED: OCTOBER 8, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000150-WC
KENTUCKY DEPARTMENT OF
TRANSPORTATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC96-81060
v.
BETTY HIMEBAUGH;
HONORABLE J. LANDON OVERFIELD,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GARDNER AND KNOX, JUDGES.
GARDNER, JUDGE:
The Kentucky Department of Transportation (KDOT)
appeals from an opinion of the Workers’ Compensation Board (the
board) which affirmed an opinion and award of the Administrative
Law Judge (ALJ).
The ALJ determined that Betty Himebaugh
(Himebaugh) was entitled to temporary total occupational
disability and 20% permanent occupational disability.
The facts are uncontroverted.
We affirm.
Himebaugh began working
for KDOT in 1998 as a seasonal toll booth collector.
On August
19, 1996, she fell from a step ladder while cleaning a toll booth
window and fractured two bones in her right leg.
Himebaugh
received medical treatment which is detailed in the record.
Himebaugh subsequently filed the instant petition
seeking benefits, and the matter proceeded before the ALJ where
proof was tendered.
Himebaugh offered the medical report of
treating physician Dr. Paul K. Forberg (Dr. Forberg), which noted
residual muscle atrophy and weakness, pain with prolonged weight
bearing, and limited ankle movement.
Relying in whole or in part
on AMA Guidelines, Forberg assessed a 30% loss of function of the
leg which he translated to 14% whole body functional impairment.
The assessment was based in part on the structural damage to
Himebaugh’s leg and the associated diminution in function, as
well as on the level of pain which Himebaugh reported
experiencing.
The ALJ also considered KDOT’s medical evidence, which
consisted of a report prepared by Dr. Daniel Primm, Jr. (Dr.
Primm).
Dr. Primm opined that Himebaugh’s whole body functional
impairment was in the range of 5% to 7%, and predicted that the
impairment would improve in a matter of months.
In deposition,
Dr. Primm noted that there was no criteria in the AMA Guidelines
for quantifying pain, and that it was “. . . just subjective on
the physician and patient’s part.”
Finally, the report of examining physician Dr. Timothy
R. Wagner (Dr. Wagner) was considered.
He believed that much of
Himebaugh’s pain would resolve, and assigned a 2% whole body
functional impairment.
He further stated that the 2% impairment
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was based solely on Himebaugh’s report of pain, and that absent
the pain he would assess no functional impairment.
Upon considering the evidence, the ALJ found the report
of Dr. Forberg to be persuasive, and translated Dr. Forberg’s
assessment of 14% functional impairment into 20% occupational
disability.
issue.
Other conclusions were rendered which are not now at
KDOT appealed the award to the board, which affirmed.
This appeal followed.
KDOT first argues that the board erred in affirming the
ALJ’s opinion because the AMA Guidelines do not permit pain to
serve as a basis for increasing a functional impairment rating
unless the pain is characterized as “chronic pain” or “chronic
pain syndrome.”
It argues that Himebaugh does not have chronic
pain, and that accordingly it was improper for Forberg to
increase Himebaugh’s functional impairment rating based on pain.
We have closely examined the facts, the law, and the arguments of
counsel on this issue, and find no error.
KDOT concedes that Chapter 15 of the AMA Guidelines
permits the assessment of functional impairment as “add-ons”
(i.e., increases) based on pain in certain circumstances, and
that the physician may exercise discretion in assessing a
functional impairment rating when those circumstances exist.
The
focus of KDOT’s argument on this issue, then, is not whether pain
may serve as a basis for assessing a functional impairment
rating, nor whether the physician may exercise discretion in this
regard, but whether Himebaugh is experiencing pain sufficient to
justify an increased functional impairment rating.
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Clearly, resolution of this issue requires the ALJ to
consider the relevant medical evidence and to produce a finding
of fact as to whether Himebaugh is experiencing ongoing pain
resulting from her injury.
This question, like all questions of
fact, falls within the scope of the ALJ’s sound discretion,
Brockway v. Rockwell International, Ky. App., 907 S.W.2d 166
(1995), and in making this finding, the ALJ may choose which
portions of the evidence to rely on and which portions to give
less weight to.
Caudill v. Maloney’s Discount Stores, Ky., 560
S.W.2d 15 (1977).
Dr. Forberg opined that Himebaugh’s pain was
substantial and ongoing, and the ALJ’s reliance on this opinion
is not clearly erroneous.
While Dr. Wagner did not agree with
this determination, he did not state that he believed it to be in
error, and, arguendo, had he done so the ALJ was entitled to
accept Dr. Forberg’s conclusions on this issue while rejecting
Dr. Wagner’s.
Id.
Similarly, Dr. Primm disagreed with Dr.
Forberg’s assessment of Himebaugh’s pain, but again the ALJ is
best positioned to consider conflicting evidence and to render
findings of fact therefrom.
Ultimately, we are bound to rely on
the ALJ’s findings of fact absent a showing that they are clearly
erroneous, and no such showing has been made on this issue.
Kentucky Revised Statute (KRS) 342.285; Western Baptist Hospital
v. Kelly, Ky., 827 S.W.2d 685 (1992).
In a related argument, KDOT maintains that the ALJ’s
opinion and award should be reversed because Dr. Forberg did not
rely on the AMA Guidelines as a basis for finding of functional
impairment, but rather relied on a computerized model used by the
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California Workman’s Compensation system.
argument persuasive.
We do not find this
Chapter 15 of the AMA Guidelines provides
for pain impairment ratings, and both the ALJ and the board
concluded that Dr. Forberg’s reliance on these Guidelines
reasonably supports his assessment of Himebaugh’s functional
impairment rating.
While it is true that Dr. Forberg considered
extrinsic evidence (i.e., the California model), the printout of
this model was not introduced into evidence and Chapter 154
sufficiently supports his assessment of pain as a basis for
functional impairment.
As the board noted, KDOT did not present
medical testimony sufficient to explain how Dr. Forberg’s
calculations were in error nor to effectively impeach his
functional impairment assessment.
When all of the evidence on
this issue is considered, we cannot conclude that the ALJ’s
findings, or the board’s affirmation thereof, were clearly
erroneous, Western Baptist Hospital v. Kelly, supra, and
accordingly find no error.
For the foregoing reasons, the opinion and order of the
Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. David Shearer
Louisville, Kentucky
John F. Kelley, Jr.
London, Kentucky
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