KELLY D. GIBBS V. PREMIER SCALE COMPANY/ INDIANA SCALE COMPANY; DONALD G. SMITH, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: MARCH 22,200l
TO BE PUBLISHED
4s MODIFIED: AUG%T 23, 2001
2000-SC-0205-w
KELLY D. GIBBS
APPEAL FROM COURT OF APPEALS
NO. 1998-CA-002238-WC
WORKERS’ COMPENSATION BOARD NO. 97-01088
v.
PREMIER SCALE COMPANY/
INDIANA SCALE COMPANY;
DONALD G. SMITH,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT
AFFIRMING
This workers’ compensation appeal concerns whether the claimant
demonstrated that he sustained a harmful change in the human organism which was
evidenced by objective medical findings. KRS 342.001 l(1). The meaning of the term
“objective medical findings,” as it is defined by KRS 342.0011(33), is a matter of first
impression.
The claimant was born in 1939 and had an extensive employment history when
he began working for the defendant-employer in -1984, inspecting, repairing, and
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installing all types of scales. Over the years, he had sustained work-related injuries and
had undergone cervical, kneecap, and shoulder surgery. Those claims were settled for
permanent, partial disabilities totaling 53.75%. He had a medical history of noninsulindependent diabetes and of taking Lorazipam, a nerve medication.
On December 23, 1996, while the claimant was driving to a work assignment, his
vehicle was struck by another vehicle in the driver’s door. The claimant testified that he
recalled the collision, itself, but that he did not remember getting out of the truck. He
testified, “When I come to, I was laying on the sidewalk.” He was taken by air
ambulance to the University of Louisville Hospital. Emergency room records indicated
that he complained of head and upper back pain. The clinical impression was of a
closed head injury post motor vehicle accident. The claimant testified that he was kept
in the hospital for several hours for observation, during which time he passed in and out
of consciousness.
On December 26, 1996, the claimant presented at the emergency room of the
Caritas Medical Center. He complained of dizziness and headache since the accident
and of pain in the neck, right shoulder, and lower back. A neurological examination
indicated that he was slightly ataxic but revealed no other deficit.’ A CT scan of the
head was interpreted as being normal, although it did show some evidence of chronic
sinusitis. X-rays of the cervical spine showed some degenerative changes, and x-rays
of the lumbar spine and of the right shoulder were normal.
The claimant was seen by Dr. Seifer, a neurologist, on January 8, 1997, at which
time he complained of pain in his head, neck, back, and legs. He also complained of
Stedman’s Medical Dictionarv, 5th Lawyers’ Edition, defines ataxia as being an
“inability to perform coordinated muscular movements.”
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difficulty sleeping, slurred speech, blurred vision, and unsteadiness. Dr. Seifer
examined the claimant, took a medical history, and performed an EEG which was
normal. He concluded that the claimant’s history and symptoms were compatible with a
post-concussive syndrome as a result of the December 23, 1996, accident. Several
months later, the claimant complained of nightmares and occasional hallucinations for
which Dr. Seifer recommended a psychiatric evaluation. After following the claimant for
nearly a year, Dr. Seifer remained of the opinion that he suffered from post-concussive
syndrome.
In explaining the diagnosis, Dr. Seifer testified that postconcussive syndrome is
well documented in the medical literature and refers to a group of symptoms which are
common in patients who have suffered head trauma. The most common symptoms
include headaches, visual disturbances, hearing disturbances, sleep problems, memory
problems, personality changes, and various physiological changes. Symptoms may
wax and wane over time, with some individuals recovering very quickly and others never
recovering. A period of unconsciousness is not imperative for the diagnosis but is
considered to be significant.
Dr. Seifer testified that although the claimant had the requisite symptoms, there
was a lack of any definitive, observable physical finding of the condition. The diagnostic
testing which had been performed was essentially normal. However, Dr. Seifer did not
find that to be surprising. He also indicated that the degree and duration of symptoms
does not necessarily reflect the severity of the underlying physical injury. Dr. Seifer
testified that, in practice, the diagnosis is made on the basis of a history of head trauma
and reported symptoms.
Addressing the lack of purely objective evidence of the underlying injury,
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Dr. Seifer testified that certain changes in the brain which occur with trauma are
discernable only by means of a different level of analysis than is currently used in
medical practice. He explained that studies have demonstrated that head trauma
causes micro-shearing of brain tissue, with tearing of certain brain cells and connective
tissue within the brain. Autopsies of the brains of patients who sustained head injuries
but died of another cause revealed clear pathological changes in the brain on a cellular
level. There was clear evidence that head trauma caused biochemical changes within
the brain, that it caused changes in the brain chemistries of sodium, potassium,
magnesium, and calcium, and that it affected neurotransmission. A recent study
detected changes in regional blood flow following head trauma. More specifically, it
detected reduced cerebral blood flow and regional and hemispheric asymmetries which
supported an organic basis for chronic posttraumatic headache. However, Dr. Seifer
indicated that although MRI, EEG, CT scan and similar presently-used diagnostic tools
can detect some types of brain damage, they are incapable of detecting these types of
changes.
Dr. Seifer testified that he had prescribed Elavil, a drug which affects serotonin
pathways in the brain and which is used to treat pain, particularly headache. However,
in his opinion, the claimant needed more aggressive psychological and/or psychiatric
treatment; therefore, he had made a psychiatric referral. He had referred the claimant
to an opthamology practice for further evaluation of his vision problems and had
recommended additional treatment for the neck problem which was exacerbated by the
accident. When he last saw the claimant, he thought that the claimant would eventually
be able perform some type of desk job but could not return to work which required
driving, loading, and unloading a truck. Due to the claimants persistent and disabling
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symptoms, Dr. Seifer had not yet released him to return to work.
On referral from Dr. Seifer, the claimant was seen by various members of an
opthamology practice. Dr. Mahl, a specialist in vitreo-retinal diseases and surgery,
testified that the claimant had diabetic retinopathy, secondary to his diabetes. The
condition was not related to the work accident and was treated with laser therapy.
Dr. Berman, a specialist in neuro-opthamology, examined the claimant and performed a
number of tests in May, 1997, subsequent to the laser therapy. Dr. Berman and
Dr. Lowenthal, a specialist in vitreo-retinal diseases, concluded that the blurred vision,
which occurred when the claimant tilted or turned his head in a certain position, was
secondary to post-concussive syndrome rather than the diabetic condition. In October,
1997, Dr. Murphy reevaluated the claimant with regard to the diabetic retinopathy and
noted that the claimant also suffered from a subjective visual disturbance consistent
with post-concussive syndrome. Dr. Berman saw the claimant again in February, 1998.
He emphasized that the claimant suffered from two separate visual problems, one of
which was attributable to post-concussive syndrome. In his opinion, any estimate of the
extent to which each problem contributed to the claimant’s overall visual condition would
be speculative.
Dr. Banerjee, a neurosurgeon, evaluated the claimant in March and December,
1997. In his opinion, the residuals of the accident were “very little.” It caused a neck
strain, at most, and no permanent impairment. He attributed most of the claimants
symptoms, including diminished reflexes in the upper and lower extremities, to diabetic
neuropathy, noting that the condition can result in problems with infection, visual
disturbances, and depression. He listed other possible causes of the blurred vision,
headache, and neck pain as being the Elavil, a flexion/extension
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injury of the neck, prior
neck surgery, and arthritis or age-related changes in the neck. On March 5, 1997, he
expected the claimant to reach maximum medical improvement (MMI) in about one
month.
When deposed, Dr. Banerjee testified that he had treated patients with postconcussive syndrome. He agreed that no objective medical findings were necessary for
a diagnosis and that the severity of the head injury was not a factor. He testified that
symptoms normally resolved within three to six months, but sometimes they persisted
for more than a year. Although he agreed that the claimants complaints were
compatible with post-concussive syndrome, he remained unconvinced that the claimant
suffered from the condition. He assigned a 13% impairment rating to the effects of the
prior neck surgery.
The claimant testified that he continued to experience problems with headaches,
blurred vision, balance, memory, hallucinations, irritability, and avoiding other people.
His employer had terminated him, and he did not think he could perform his former
work. The claimant’s wife testified that since the accident he cries, has a bad temper
and mood problems, and has trouble sleeping.
The Administrative Law Judge (ALJ) concluded from the evidence that the
claimant had failed to prove that he suffered from a permanent occupational disability
due to the neck injury but that he was entitled to medical benefits for the condition. The
ALJ determined that the claimant exhibited symptoms of post-concussive syndrome,
that he suffered from the condition as a result of the work-related accident, and that he
was totally occupationally disabled by the condition. However, in view of the testimony
by Drs. Seifer and Banerjee that a diagnosis of the condition was made on the basis of
symptoms rather than objective medical findings, the ALJ concluded that post-6-
concussive syndrome was not an “injury” as the term came to be defined effective
December 12, 1996. KRS 342.001 l(1) and (33). For that reason, the claimant was
entitled to neither income nor medical benefits for the condition. Finally, the ALJ
determined that the claimant was entitled to the temporary, total disability (TTD) benefits
which had been paid voluntarily by the employer until March 31, 1997.*
The claimant petitioned for reconsideration, requesting additional findings of fact
with regard to the interpretation of the term “objective medical findings.” The petition
was overruled, after which he appealed.
The Workers’ Compensation Board (Board) was persuaded that the legislature
had intended for the term “objective medical findings” to permit the consideration of
more than diagnostic medical studies. Referring to statements in the American Medical
Association’s Guides to the Evaluation of Permanent Impairment, the Board concluded
that the term “objective medical findings” was intended to embrace the “art” involved in
the practice of medicine as well as the science. It viewed the definition as “embrac[ing]
medical opinion, if based upon direct observation and grounded upon standardized
methods.”
Turning to the instant case, the Board noted: 1.) the fact that Drs. Banerjee and
Seifer agreed with regard to the standardized method for diagnosing post-concussive
syndrome; 2.) the fact that Dr. Seifer had directly observed the claimant and had
employed the standardized method in making his diagnosis; and 3.) the fact that the
ALJ was persuaded by the opinion of Dr. Seifer. Based upon the foregoing, the Board
concluded that the ALJ had erred by construing the definition of objective medical
“On March 3, 1997, Dr. Banerjee had anticipated that in one month the claimant
would reach MMI from what he had diagnosed as a temporarily disabling neck strain.
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findings too narrowly. In any event, because the claimant had offered no evidence of an
AMA impairment due to post-concussive syndrome, he did not have a disability rating
and would not be entitled to income benefits for either permanent, partial or permanent,
total disability as defined by KRS 342.001 I(1 1 )(b) and (c). The Board noted, however,
that a disability rating is not required by KRS 342.001 I(1 l)(a) for an award of TTD.
Dr. Banerjee had indicated that the claimant should reach MMI within a month of
March 5, 1997; however, Dr. Seifer had not released the claimant to return to work in
November, 1997. Therefore, the claim was remanded to the ALJ for further
proceedings with regard to the proper duration of TTD.
In a two-to-one decision, the Court of Appeals reversed the Board with regard to
the meaning of the term “objective medical findings.” As ordered by the Board, the
claim was remanded with regard to the question of TTD. The dissent adopted portions
of the opinion of the Board. We affirm, although our reasoning differs somewhat from
that expressed by the majority of the Court of Appeals panel.
The thrust of the claimant’s argument on appeal is that he has suffered a harmful
change, that none of the diagnostic testing has ruled out the existence of that harmful
change, and that it is the limitations of present-day diagnostic tools which make the
change impossible for him to prove except by means of the particular symptoms of
which he complains. He asserts that KRS 342.001 l(33) refers to information obtained
by direct observation and testing, so long as the physician applies objective or
standardized methods. He points out that even so-called objective diagnostic tests rely
upon a subjective interpretation. He also asserts that if Dr. Seifer’s diagnosis of postconcussive syndrome was not supported by objective medical findings, the remand
which the Court of Appeals had affirmed would be moot.
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The employer maintains that the principles of liberal construction no longer apply
with regard to the interpretation of Chapter 342 and that the legislature’s goal in
amending the definition of “injury” clearly was to take a more conservative approach to
compensating the effects of workplace accidents. It asserts that by incorporating a
requirement that a harmful change be evidenced by objective medical findings as
defined in KRS 342.0011(33), the legislature demonstrated its intent to remove
subjectivity and eliminate claims which were based solely upon the claimant’s subjective
complaints. The employer asserts that the definition requires not only that testing be
performed in an objective or standardized method, but also that it must produce
information which indicates the presence of a harmful change.
Since December 12, 1996, KRS 342.001 l(1) has provided as follows:
“Injury” means any work-related traumatic event or series of traumatic
events, including cumulative trauma, arising out of and in the course of
employment which is the proximate cause producing a harmful change in
the human organism evidenced by objective medical findings. “Injury”
does not include the effects of the natural aging process, and does not
include any communicable disease unless the risk of contracting the
disease is increased by the nature of the employment. “Injury” when used
generally, unless the context indicates otherwise, shall include an
occupational disease and damage to a prosthetic appliance, but shall not
include a psychological, psychiatric, or stress-related change in the human
organism, unless it is a direct result of a physical injury.
It is apparent that, for the purposes of Chapter 342, “injury” is now defined in terms of
an event which proximately causes a harmful change rather than in terms of the harmful
change, itself. KRS 342.001 l(33) provides that:
“Objective medical findings” means information gained through direct
observation and testing of the patient applying objective or standardized
methods.
We begin our consideration of this matter by calling to mind some of the 1987
amendments to the Act. Prior to 1987, black lung benefits tended to be awarded on an
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all-or-nothing basis, based upon little more than a diagnosis and the worker’s testimony
that he had trouble breathing and could no longer perform his previous work. Medical
evidence of the extent of the disease or of the affected worker’s functional impairment
played little, if any, role in the process. There was no uniformity in the type of medical
evidence which was introduced from one claim to the next.
In 1987, the legislature enacted KRS 342.732 and amended KRS 342.316 in an
attempt to provide more objective standards with regard to both the requisite medical
evidence and the level of benefits to be awarded for varying degrees of coal workers’
pneumoconiosis. Those standards were based upon the medical realities of the
disease. They took into account the category of disease from which the worker
suffered, as visible on x-ray, and the extent of the worker’s pulmonary impairment due
to the inhalation of coal dust, as demonstrated by spirometry. See Kentuckv Harlan
Coal Co. v. Holmes, KY., 872 S.W.2d 446 (1994). As a result, workers with the same
disease category and/or pulmonary impairment, as demonstrated by the same type of
medical evidence, were entitled to receive the same level of benefits pursuant to
KRS 342.732. Income benefits were awarded only to those workers who proved: 1.)
that they suffered from a significant impairment in pulmonary function due to the
inhalation of coal dust as established under the standards set forth in the AMA Guides
to the Evaluation of Permanent lmoairment (Guides) or 2.) that they suffered from an
advanced category of the disease.
It is clear that in enacting the 1996 amendments to KRS 342.001 l(1) and (33)
and to KRS 342.730, the legislature sought to incorporate more objective standards for
proving other types of workers’ compensation claims. Prior to December 12, 1996, “any
work-related harmful change in the human organism” was considered to be an injury
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pursuant to KRS 342.001 l(l), and Chapter 342 contained no explicit standard for
proving the existence of such a change except for providing that a finding of fact could
not be “arbitrary.” KRS 342.285. A favorable finding could be based upon a diagnosis
which, itself, was based upon nothing more than the worker’s self-reporting of
symptoms. In such instances, the fact-finder’s perception of the workers’ credibility
became the basis for awarding or not awarding benefits. As effective December 12,
1996, KRS 342.0011(l) requires that a harmful change must be proximately caused by
a work-related traumatic event and must be evidenced by “objective medical findings.”
Since April 4, 1994, the definition of “injury” has expressly excluded a psychological,
psychiatric, or stress-related change unless the change is the direct result of a physical
injury. Here, the claimant has alleged that certain physical problems, psychological
problems, and mental deficits resulted from trauma to his brain as a result of the
accident. The claim turns upon whether those harmful changes were evidenced by
objective medical findings.
As the claimant points out, direct observation by a physician necessarily involves
the subjective perception of the observer as does the interpretation of an x-ray, CAT
scan, or MRI. It is apparent to this Court that much medical testing is affected by
subjective factors on the part of the patient, the evaluator, or both. We also are aware
that, in recognition of that reality, standards are employed by the medical profession to
help reduce the effect of those subjective factors and, thereby, to render the information
which is obtained a more objective assessment of the patient’s actual condition. For
example, IL0 standards for interpreting chest x-rays are employed to help reduce the
effects of the subjective perception of the reader. See Kentuckv Harlan Coal Co. v.
Holmes, Likewise, the Guides recognize that the results of spirometric testing
supra.
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are affected by the degree of the patient’s cooperation. For that reason, the greatest of
three acceptable spirometric maneuvers is considered to most accurately represent the
extent of the patient’s actual impairment. See Newbera v. Wriaht, Ky., 824 S.W.2d 843,
845 (1992). Furthermore, the Guides set forth standards for determining the extent of a
wide variety of functional impairments. The use of standardized methods decreases the
extent to which the observation and testing of a patient are affected by subjective
factors and, thereby, renders the resulting information a more objective measure of the
patient’s actual condition. It results in more uniformity from one case to the next.
The term “diagnosis” refers to a physician’s perception of the nature and cause of
the patients harmful change. A physician’s diagnosis forms a logical basis for
treatment and prognosis. See Dorland’s Illustrated Medical Dictionarv, 24th Edition
(1965); Taber’s Cvclopedic Medical Dictionary, 15th Edition (1985). The “art” of
diagnosis comes into play in discerning the correct diagnosis from a number of
possibilities. Taking note of the symptoms which the patient reports, examining the
patient, questioning the patient, observing the patient, and evaluating the significance of
the results of objective or standardized testing, all are elements of the art of medical
diagnosis. However, medical diagnosis and the requirements of Chapter 342 for
proving the existence of a compensable injury are entirely different matters.
KRS 342.001 l(1) makes it clear that not all work-related harmful changes are
compensable. Therefore, we are constrained to conclude that although a worker may
experience symptoms and although a physician may have diagnosed a work-related
harmful change, the harmful change must be evidenced by objective medical findings
as that term is defined by KRS 342.001 l(33). Otherwise, it is not compensable as an
“injury.” KRS 342.001 l(1).
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KRS 342.001 ‘l(33) limits “objective medical findings” to information gained by
direct observation and testing applying objective or standardized methods. Thus, the
plain language of KRS 342.001 l(33) supports the view that a diagnosis is not an
objective medical finding but rather that a diagnosis must be supported by objective
medical findings in order to establish the presence of a compensable injury. The fact
that a particular diagnosis is made in the standard manner will not render it an “objective
medical finding.” We recognize that a diagnosis of a harmful change which is based
solely on complaints of symptoms may constitute a valid diagnosis for the purposes of
medical treatment and that symptoms which are reported by a patient may be viewed by
the medical profession as evidence of a harmful change. However, KRS 342.0011(l)
and (33) clearly require more, and the courts are bound by those requirements even in
instances where they exclude what might seem to some to be a class of worthy claims.
A patient’s complaints of symptoms clearly are not objective medical findings as the
term is defined by KRS 342.001 l(33). Therefore, we must conclude that a diagnosis
based upon a worker’s complaints of symptoms but not supported by objective medical
findings is insufficient to prove an “injury” for the purposes of Chapter 342.
In view of the evidence which was presented in this particular case, a question
has arisen concerning whether a harmful change must be, or is capable of being,
documented by means of sophisticated diagnostic tools such as the x-ray, CAT scan,
EEG, or MRI in order to be compensable. Contrary to what some have asserted we are
not persuaded that it must. Furthermore, at least to some extent, we view that question
as being off the mark. Likewise, we are not persuaded that a harmful change must be
both directly observed and apparent on testing in order to be compensable as an injury.
In the instant case, the claimant has focused upon the shortcomings of the
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sophisticated diagnostic tools. However, in addition to testing which utilizes the
aforementioned diagnostic tools, a wide array of standardized laboratory tests and
standardized tests of physical and mental function is available to the medical
practitioner. Although there may not be a standardized test which would apply to every
conceivable symptom of which a patient might complain, or every symptom which
cannot be directly observed, such tests are capable of confirming the existence and
extent of a number of symptoms. We know of no reason why the existence of a harmful
change could not be established, indirectly, through information gained by direct
observation and/or testing applying objective or standardized methods that
demonstrates the existence of symptoms of such a change. Furthermore, we know of
no reason why a diagnosis which was derived from symptoms that were confirmed by
direct observation and/or testing applying objective or standardized methods would not
comply with the requirements of KRS 342.001 l(1).
Although the amendments which are at issue clearly have made the requirements
for proving a claim for occupational injury more stringent, we are not persuaded that the
claimant was faced with an impossible task. Dr. Seifer did not testify concerning
whether he observed anything that would confirm the existence of any of the symptoms
that the claimant reported. Although standardized methods of testing may not have
been available with regard to all of his symptoms, such methods were available to
confirm the existence and severity of a number of the reported symptoms and also to
assess the likely extent of symptom magnification and malingering. Information gained
through standardized psychological testing is Ocommonly
introduced in workers’
compensation claims to demonstrate both the existence and severity of a wide variety of
psychological symptoms and mental deficits. Dr. Seifer referred the claimant to a
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psychiatrist for the evaluation and treatment of his psychological symptoms. There is
evidence that the claimant received some pastoral counseling. However, there is no
indication that he sought the psychiatric treatment which Dr. Seifer recommended or that
he underwent a standardized psychological or psychiatric assessment with regard to the
hallucinations, emotional problems, personality changes, or memory problems which he
alleged.
In the process of determining that some of the claimant’s visual problems were
attributable to post-concussive syndrome rather than to diabetic retinopathy,
Drs. Berman and Lowenthal performed a number of tests on his eyes which may or may
not have formed at least some of the basis for their diagnosis. However, nothing in their
reports indicates as much. Furthermore, nothing indicates that they observed anything
that would confirm the existence of the visual symptoms of which the claimant
complained. There was some evidence that the claimant was slightly ataxic when he
sought emergency room treatment at Caritas, and he complained of unsteadiness to
Dr. Seifer. However, there is nothing in Dr. Seifer’s testimony which indicates that his
observation or neurological testing documented problems with the claimant’s balance or
coordination.
The claimant bears the burden of proof and risk of nonpersuasion before the factfinder with regard to every element of a workers’ compensation claim. Wolf Creek
Collieries v. Crum, Ky. App., 673 S.W.2d 735 (1984); Snawder v. Stice, Ky. App., 576
S.W.2d 276 (1979); Roark v. Alva Coal Corporation, Ky., 371 S.W.2d 856 (1963). The
work-related trauma may, indeed, have caused the claimant to sustain a harmful change
to his brain which manifested itself in the form of various symptoms, the aggregate of
which is referred to by the medical profession as “post-concussive syndrome.”
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However, he failed to offer direct evidence of the harmful change in the form of objective
medical findings. Furthermore, he failed to offer indirect evidence of the harmful change
in the form of objective medical findings which demonstrated the existence of symptoms
of the change. Under those circumstances, the claimant failed to offer substantial
evidence of a harmful change to his brain as a result of the traumatic accident pursuant
to the standards set forth in KRS 342.001 l(1) and (33).
The decision of the Court of Appeals is affirmed.
Cooper, Johnstone, Keller, and Wintersheimer, JJ., concur.
Lambert, C.J., dissents by separate opinion in which Graves and Stumbo, JJ., join.
COUNSEL FOR APPELLANT:
Hon. Eric R. Collis
LYNCH, COX, GILMAN, & MAHAN, P.S.C.
2200 Aegon Center
400 West Market Street
Louisville, KY 40202
COUNSEL FOR APPELLEE
PREMIER SCALE CO.:
Hon. Thomas L. Ferreri
Hon. Brian Gannon
Hon. Kamp T. Purdy
FERRERI & FOGLE
203 Speed Building
333 Guthrie Green
Louisville, KY 40202
APPELLEE, INDIANA SCALE CO.:
(Not represented by counsel)
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RENDERED: MARCH 22,200l
TO BE PUBLISHED
4s MODIFIED: AUGUST 23,200l
2000-SC-0205wc
KELLY D. GIBBS
v.
APPELLANT
APPEAL FROM COURT OF APPEALS
NO. 1998-CA-002238-WC
WORKERS’ COMPENSATION BOARD NO. 97-01088
PREMIER SCALE COMPANY/
INDIANA SCALE COMPANY;
DONALD G. SMITH,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
DISSENTING OPINION BY CHIEF JUSTICE LAMBERT
Respectfully, I dissent. In my opinion, the Workers’ Compensation Board was
correct in its conclusion that the term “objective medical findings” was intended by the
legislature to include a medical diagnosis which was based upon direct observation and
which was made using standardized methods. For that reason, I would reverse.
In adopting the definition of “injury” which is contained in KRS 342.001 l(1) the
legislature provided that a diagnosis of a harmful change must be supported by
“objective medical findings.” KRS 342.001 l(33) provides that:
“Objective medical findings” means information gained through direct
observation and testing of the patient applying objective or standardized
methods.
In my opinion, it is significant that KRS 342.001 l(1) requires “objective medical
findings” rather than “objective medical evidence.” In view of this choice of words, I am
persuaded that the legislature did not intend to require that the diagnosis of a harmful
change must be supported by diagnostic medical studies.
Even the American Medical Association’s Guides to the Evaluation of Permanent
Impairment (Guides) discusses the crucial role which the “art” of medicine plays in the
practice of medicine, stating as follows:
The physician’s judgment and his or her experience, training, skill, and
thoroughness in examining the patient and applying the findings to Guides
criteria will be factors in estimating the degree of the patient’s impairment.
These attributes compose part of the ‘art’ of medicine, which, together
with a foundation in science, constitute the essence of medical practice.
The evaluator should understand that other considerations will also apply,
such as the sensitivity, specificity, accuracy, reproducibility, and
interpretation of laboratory tests and clinical procedures, and variability
among observers’ interpretations of the tests and procedures. (p. I/3,
AMA Guides, 4th Edition)
The legislature has placed great reliance upon the Guides when drafting Chapter 342.
In view of the value which the Guides clearly place on the art of medicine as well as the
science of medicine, I am persuaded that the definition of “objective medical findings”
was intended to embrace a diagnosis which was reached through direct observation
and grounded upon standardized methods as well as a diagnosis which was reached
through direct observation and diagnostic testing.
In the instant case, Drs. Banerjee and Seifer agreed with regard to the
standardized method for diagnosing post-concussive syndrome. After evaluating the
claimant in March and December, 1997, Dr. Banerjee was not persuaded that the
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claimant suffered from the condition. In contrast, Dr. Seifer, the treating physician,
directly observed the claimant, employed the standardized method for making a
diagnosis, and concluded that the claimant did suffer from the condition. The ALJ was
persuaded by the opinion of Dr. Seifer. In view of the foregoing, the evidence
compelled a finding that the claimant suffered an “injury” as defined by
KRS 342.001 l(1).
Graves, and Stumbo, JJ., join this dissenting opinion.
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B~rrme Ohrt of Kentuckg
2000-SC-0205-WC
APPELLANT
KELLY D. GIBBS
V.
APPEAL FROM COURT OF APPEALS
NO. 1998-CA-002238-WC
WORKERS’ COMPENSATION BOARD NO. 97-01088
PREMIER SCALE COMPANY/
INDIANA SCALE COMPANY;
DONALD G. SMITH,
Administrative Law Judge; and
WORKERS’ COMPENSATION BOARD
APPELLEES
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
The Court having considered the Petition for Rehearing filed by Appellant,
hereby denies said Petition and, on its own motion, modifies the Opinion rendered
March 22, 2001, by withdrawing pages 14, 15, and 16 of the original Opinion and
substituting new pages 14, 15, and 16 therefor, and by withdrawing pages 1 and 3 of
the original Dissenting Opinion and substituting the attached pages 1 and 3 therefor.
All concur, except Stumbo, J., who would grant rehearing.
Entered: August 23, 2001.
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