ALLIED SYSTEMS, LTD. VS. COMP BRADLEY (ERNEST) ET AL
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RENDERED: OCTOBER 8, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000024-WC
ALLIED SYSTEMS, LTD.
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-08-83906
ERNEST BRADLEY; HON.
RICHARD JOINER, ADMINISTRATIVE
LAW JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: FORMTEXT TAYLOR, CHIEF JUDGE; COMBS AND NICKELL,
JUDGES.
PER CURIAM: Allied Systems, Ltd., (Allied) petitions this Court to review an
opinion of the Workers’ Compensation Board (Board) entered December 4, 2009,
affirming a decision of the Administrative Law Judge (ALJ) to award Ernest
Bradley workers’ compensation benefits based upon a 40.5 percent permanent
disability rating. We affirm.
Bradley filed a claim for workers’ compensation benefits for an
alleged work-related knee injury. Bradley was employed by Allied as a truck
driver and injured his knee while inspecting his truck. Allied contested that the
injury was work related and argued that degenerative changes were the cause.
Allied also disputed the degree of disability suffered by Bradley. Eventually, the
ALJ found that Bradley’s knee injury was work related and assessed a 40.5 percent
permanent disability rating. The ALJ also awarded Bradley benefits based upon
the “two-multiplier” found in Kentucky Revised Statutes (KRS) 342.730(1)(c)(2).
Being dissatisfied with the ALJ’s award, Allied sought review with the Board. The
Board affirmed the ALJ’s award, thus precipitating our review.
Allied raises two issues for our consideration:
A.
Whether the Administrative Law Judge
relied upon an impairment rating that was
not properly calculated under the 5th Edition
of the AMA Guidelines.
B.
Whether the Administrative Law Judge
incorrectly applied the two[-]multiplier to
Mr. Bradley’s benefits.
Allied’s Brief at 4.
As an appellate court, we will only disturb the Board’s opinion when
it has overlook or misconstrued the law or flagrantly erred in evaluating evidence
so as to cause gross injustice. W. Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky.
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1992). To do so, we necessarily review the ALJ’s opinion. Abbott Laboratories v.
Smith, 205 S.W.3d 249 (Ky. App. 2006). As fact-finder, it is within the sole
province of the ALJ to weigh the credibility and determine the substance of the
evidence. Id.
Both of Allied’s contentions of error were raised before the Board,
and the Board conducted a thorough review of the evidence and law in its opinion
rejecting same. After considering the Board’s opinion, the ALJ’s opinion and the
arguments of both parties, we concluded that the Board committed no error, and
we adopt its erudite reasoning herein:
We similarly find no merit with regard to Allied's
argument that the 30% whole person impairment
assessed by Dr. Frederic Huffnagle and adopted by the
ALJ, was in error because it failed to comport with the
methodology established under the AMA Guides for
assessing such ratings. Dr. Huffnagle, in his written
report of March 9, 2009, plainly stated he arrived at the
30% impairment rating relative to Bradley's right knee
injury by utilizing Table 17-35 located on page 549 of
the 5th Edition of the AMA Guides. In fact, a copy of
Table 17-35 is attached as an exhibit to Dr. Huffnagle's
report.
In Kentucky River Enterprises, Inc. v. Elkins, 107
S.W.3d 206 (Ky. 2003), the Kentucky Supreme Court
instructed that the proper interpretation of the AMA
Guides is a medical question solely within the province
of the medical experts. Consequently, while an ALJ may
elect to consult the AMA Guides in assessing the weight
and credibility to be accorded an expert's impairment
assessment, as the trier of fact the ALJ is never required
to do so.
In this instance, Dr. Nemeth did not address the
issue of Bradley's entitlement to an impairment rating
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under the AMA Guides, nor did he comment on the
methodology utilized by Dr. Huffnagle under the AMA
Guides. Though Dr. Waggoner assessed a different
impairment rating than Dr. Huffnagle, he equally did not
address the reason for the difference. In this instance, the
only criticism concerning the alleged inaccuracy of the
impairment rating assessed by Dr. Huffnagle is the
independent review offered by Allied's lawyer, not a
physician, in its brief to this Board. Our courts have
consistently stated that the proper method for impeaching
a physician's methodology under the AMA Guides is
through cross-examination or the opinion of another
medical expert. Brasch-Berry General Contractors v.
Jones, 189 S.W.3d 149 (Ky. App. 2006). That did not
occur in this case. Thus, we again find no error.
Finally, we disagree with Allied that under the
facts as determined, the ALJ erred by awarding the 2multiplier. Contrary to Allied's characterization of Ball
v. Big Elk Creek Coal Co. Inc., 25 S.W.3d 115 (Ky.
2000), we interpret the Kentucky Supreme Court's
holding in that case as merely standing for the
proposition that for purposes of KRS 342.730(1)(c)2, an
employee's post-injury earnings are subject to calculation
under KRS 342.140(1) in the same manner as the
calculation of his pre-injury wages. In such instances,
therefore, the question to be addressed both pre- and
post-injury is the claimant's AWW [average weekly
wage] at both points in time. Just as a claimant who is
injured on his first day of work is entitled to an award of
benefits under the Act utilizing an estimated average
weekly wage, we believe under the court's holding in
Ball, supra, an injured worker who continues to work
post-injury, regardless of the duration, is entitled to the
same accommodation with respect to a determination of
post-injury earning capacity and AWW under KRS
342.140(1). Thus, contrary to Allied's contentions, it was
not necessary for Bradley to have worked a full thirteen
weeks post-injury in order to be eligible to receive an
award of double benefits under the Act. Rather, we
believe an award enhanced by the 2-multiplier may be
deemed appropriate: 1) so long as a claimant continues to
work post-injury for a period of time; 2) the claimant
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subsequently ceases work due to the disabling effects of
his injury; 3) a post-injury AWW can be determined,
inferred or projected by the ALJ from the evidence using
one of the statutorily established methods laid down
under KRS 342.140(1); and, 4) the post-injury AWW as
determined by the ALJ is equal to or greater than the
claimant's AWW at the time of the injury.
As noted above, it is undisputed that following the
injury of June 1, 2008, Bradley continued to work for
Allied through June 6, 2008. It is further undisputed that
Bradley ceased working at that time due to the disabling
effects of his injury. Based on Bradley's testimony, we
believe the ALJ could reasonably infer from the record
that Bradley continued to earn equal wages as at the time
of the injury for that period. Moreover, we believe the
ALJ could further reasonably infer from the record that
Bradley's post[-]injury wage, based on the number of
days worked after June 1, 2006, and the likelihood he
will eventually physically be able to resume that type of
work, would be his usual wage for similar services had
he worked and been employed by Allied for a full
thirteen calendar weeks following the injury. KRS
342.140(1)(e); Ball vs. Big Elk Creek Coal Co. Inc.,
supra. Because the ALJ determined Bradley's workrelated injury of June 1, 2008[,] resulted in a permanent
partial disability, Bradley returned to work for a time
following that traumatic event at same or greater wage,
Bradley eventually will physically be able to so again,
and Bradley's employment with Allied ceased post-injury
on June 6, 2008[,] due to the effects of his "disabling
work-related injury," we believe the ALJ also properly
determined Bradley was entitled to double weekly
benefits under KRS 342.730(1)(c)2. Chrysalis House,
Inc. v. Tackett, 283 S.W.3d 671 (Ky. 2009).
Accordingly, we hold that the Board properly affirmed the ALJ’s
award.
For the foregoing reasons, the opinion of the Workers’ Compensation
Board is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David M. Andrew
Ft. Mitchell, Kentucky
William J. Rudloff
Bowling Green, Kentucky
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