KNOTT COUNTY NURSING HOME V. LORAlNE WALLEN; DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
KNOTT COUNTY NURSING HOME
V.
APPEAL FROM COURT OF
2000-CA-2568-WC
WORKERS’ COMPENSATION BOARD NO. 99-92106
LOF?AlNE WALLEN; DONALD G. SMITH,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
APPELLEE
OPINION OF THE COURT
AFFIRMING
Although the Fourth Edition of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (Guides) did not assign percentages to mental
impairments, an Administrative Law Judge (ALJ) determined that the claimant’s mental
condition warranted a permanent partial disability of 25% under KRS 342.730(1)(b).
Following affirmances by the Workers’ Compensation Board (Board) and the Court of
Appeals, the employer appeals. It maintains that because KRS 342.730(1)(b) requires
the use of an AMA impairment rating to calculate the worker’s disability rating, it
precludes a partial disability award for a mental injury.
On July 28, 1998, the claimant tripped and fell while performing her work as a
nurse’s aide, injuring her back. Her employer paid temporary total disability benefits
through February 22, 1999, after which she filed a workers’ compensation claim. She
alleged that both physical and mental injuries had resulted from the incident and
caused her to be totally disabled.
Dr. Charles Morgan, a licensed clinical psychologist, evaluated the claimant in
January, 2000. He submitted a Form 107-P medical report and a nine-page narrative
report which indicated that he had examined the claimant, taken a history, performed
several diagnostic tests, and reviewed her medical records. Under the DSM-IV
classification system, his diagnosis included: Axis I: major depression (single episode,
moderate) and pain disorder with both psychological factors and a general medical
condition; Axis II: borderline intellectual functioning and dependent traits; Axis Ill: status
post back injury with chronic intractable pain; Axis IV: psychological and environmental
problems, including chronic pain and subjective disability; and Axis V: global
assessment of functioning = 51. In his opinion, the chronic pain from the back injury,
together with the claimant’s borderline intellectual functioning and dependent
personality traits, gave rise to the depression and pain disorder. After addressing the
four areas of mental functioning and their combined effects as directed by the Fourth
Edition of the Guides, Dr. Morgan assigned a Class 3 impairment for each of the four
areas and also for the overall impairment.
He also assigned a 25% impairment rating
and indicated that none of the impairment was active before the claimant’s injury. He
recommended that she continue medication therapy with her family doctor.
Dr. Cooley, a board certified psychiatrist, evaluated the claimant in March, 2000.
His 14-page narrative report indicated that he had taken a medical, family and social
history; that he had performed both a mental status examination and a number of
standardized mental tests; and that he had reviewed the available medical records. His
diagnosis included: Axis I: dysthymia, chronic; Axis II: an unspecified personality
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disorder with dependent and histrionic personality traits; Axis III: status post accident
with musculoskeletal component; Axis IV: psychosocial stressors include financial
compromise, lack of structure, and unemployment; Axis V: global assessment of
functioning approximately 65. He reported that the claimant had significantly
exaggerated her symptoms, that her personality disorder was a departure from the
normal state of health, and that it was capable of being aroused into disability by the
ordinary stresses of life. Dr. Cooley assessed a 0% impairment, indicating that it was
based upon the Third and Fourth Editions of the AMA Guides. He concluded that the
claimant did not have a psychiatric problem that would prevent her from doing any work
that she could have performed before being injured. Furthermore, he thought that the
best therapy for the claimant would be to return to work.
Chapter 14 of the Fourth Edition of the Guides addresses mental and behavioral
disorders. It contains numerous references to the requirements of the Social Security
Administration (SSA) and recommends the use of the SSA system for assessing the
severity of mental impairment. Id. at 293. Although the Guides provide percentage
ratings for all other types of impairment, Chapter 14 indicates that for mental conditions
“no available empiric evidence” supports the use of a whole person percentage of
impairment and that “[tlranslating
specific impairments directly and precisely into
functional limitations . . . is complex and poorly understood.” U at 300. In keeping with
that premise, Chapter 14 directs the evaluator to rate the four areas of mental
functioning from the SSA model (activities of daily living, social functioning,
concentration, adaptation) utilizing a scale that ranges from no impairment (Class 1) to
extreme impairment (Class 5). A Class 3 or moderate impairment is described as
follows: “Impairment levels are compatible with some, but not all, useful functioning.”
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(Emphasis original.) Id. at 301.
Chapter 14 explains that in most instances a Class 5 impairment in one area
would prevent an individual from performing a complex task, such as one involving
recreation or work. An individual with a marked limitation in two or more spheres would
need special support or assistance, such as that provided in a sheltered environment,
to perform complex tasks. An individual with a moderate impairment in all four areas
could be limited in the ability to carry out many complex tasks. Mild and moderate
limitations would reduce the individual’s overall level of performance. Id.
The commentary at the end of the chapter explains that the second edition
assigned percentage ranges for each of the five classes of impairment but that the
Guides have not used percentages of impairment for mental conditions since the
publication of the third edition in 1988. Although recognizing that there are valid
reasons for making such estimates, the authors concluded:
The use of percentages implies a certainty that does not exist, and the
percentages are likely to be used inflexibly by adjudicators, who then are
less likely to take into account the many factors that influence mental and
behavioral impairment. Also, because no data exist that show the
reliability of the impairment percentages, it would be difficult for Guides
users to defend their use in administrative hearings.
Id. at 302.
The claimant’s injury occurred in July, 1998. Thus, the version of Chapter 342
that became effective on December 12, 1996, governs her claim. Several provisions of
the 1996 Act are relevant to the question at hand.
KRS 342.0011 provides, in pertinent part, as follows:
(1) “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”
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. . . shall not include a psychological, psychiatric or stress-related change
in the human organism, unless it is a direct result of a physical injury.
(1 l)(b) “Permanent partial disability” means the condition of an employee
who, due to an injury, has a permanent disability rating but retains the
ability to work; and
(1 l)(c) “Permanent total disability” means 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 an injury . . . .
(35) “Permanent impairment rating” means percentage of whole body
impairment caused by the injury or occupational disease as determined by
“Guides to the Evaluation of Permanent Impairment,” American Medical
Association, latest available edition.
(36) “Permanent disability rating” means the permanent impairment rating
selected by an arbitrator or administrative law judge times the factor set
forth in the table that appears at KRS 342.730(1)(b).
KRS 342.730(1)(b) sets forth the method for calculating the income benefit that
is payable to a worker who has sustained a permanent, partial disability. It provides, in
pertinent part, as follows:
b) For permanent partial disability, sixty-six and two-thirds percent (662/3%) of the employee’s average weekly wage but not more than seventyfive percent (75%) of the state average weekly wage as determined by
KRS 342.740, multiplied by the permanent impairment rating caused by
the injury or occupational disease as determined by “Guides to the
Evaluation of Permanent Impairment,” American Medical Association,
latest edition available, times the factor set forth in the table that follows:
Factor
0.75
1.00
1.25
1.50
1.75
2.00
2.25
2.50
AMA Impairment
Oto5%
6 to 10%
11 to15%
16to20%
21 to 25%
26 to 30%
31 to 35%
36% and above
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Although the Guides have not used percentage impairments since 1988, it is
apparent from KRS 342.001 l(1) that the legislature intended for psychological or
psychiatric harmful changes to be considered an “injury” for the purposes of Chapter
342 if those changes are the direct and proximate result of work-related physical
trauma. See Lexinaton-Fayette Urban County Government v. West, Ky., 52 S.W.3d
564 (2001). For that reason, we have rejected as “unreasonable” an invitation to
determine that it is impossible for a worker to demonstrate a permanent impairment
rating for the psychological portion of a claim simply because no provision for
percentage impairments existed in the most recent edition of the Guides. See
Transportation Cabinet. Department of Highways v. Poe, Ky., 69 S.W.3d 60 (2002).
We concluded, instead, that the Legislature did not intend to require an AMA
impairment rating for a work-related psychological injury. Furthermore, we determined
that if the mental condition resulted in medical restrictions, was work-related, and was a
direct result of the same traumatic event for which an impairment rating was assigned, it
could be considered by the ALJ when making a finding of total disability. We are
convinced that the same holds when making a finding of partial disability.
Poe involved a worker who was totally disabled by physical and mental injuries,
so a permanent impairment rating for the mental condition was not necessary in order
to calculate the award of income benefits. However, a percentage impairment rating is
required in order to calculate the appropriate disability rating and income benefit for a
partial disability under KRS 342.730(1)(b). KRS 342.001 l(36) authorizes an ALJ to
“select” the impairment rating for a compensable condition. We recognize that KRS
342.001 l(35) defines an impairment rating as a percentage impairment from the latest
available edition of the Guides. The fact remains, however, that although the Fourth
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Edition of the Guides does not provide for percentage impairments for mental injuries, it
clearly recognizes that such injuries can impair an individual’s ability to work. For that
reason, we conclude that when a mental injury is at issue, an ALJ is authorized to
translate a Class 1 through 5 AMA impairment into a percentage impairment for the
purpose of determining the worker’s disability rating and calculating the income benefit.
In the instant case, the ALJ determined that the claimant’s back injury caused a
10% AMA impairment, determined that her mental injury resulted from the same
traumatic event, and relied upon Dr. Morgan who reported a Class 3 (moderate)
impairment for the psychological condition under the Fourth Edition of the Guides.
Dr. Morgan assigned a 25% impairment rating to the claimant’s mental injury, a rating
that is at the low end of the range for a moderate impairment according to the last
edition of the Guides that equated Class I-5 impairments with percentages. More
persuaded by the 25% impairment rating than by the 0% rating to which Dr. Cooley
testified, the ALJ determined that the claimant’s mental condition caused a 25%
impairment for the purposes of KRS 342.730(1)(b). Having reviewed the evidence, we
are persuaded that the finding was reasonable.
The decision of the Court of Appeals is affirmed.
All concur.
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COUNSEL FOR APPELLANT:
Michael P. Neal
Kenneth P. O’Brien
Sewell and Associates
1800 One Riverfront Plaza
401 West Main Street
Louisville, KY 40202-2927
COUNSEL FOR APPELLEE,
LORAINE WALLEN:
Ronnie M. Slone
P. 0. Box 909
Prestonsburg, KY 41653
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