EAGLE CARRIERS v. TROY GREGORY; J. KEVIN KING, Administrative Law Judge; and WORKERS' COMPENSATION BOARD
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RENDERED: September 13, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-000744-WC
EAGLE CARRIERS
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-00-58420
v.
TROY GREGORY;
J. KEVIN KING, Administrative
Law Judge; and WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON and MILLER, Judges.
HUDDLESTON,
Judge:
Eagle
Carriers
appeals
from
a
Workers’
Compensation Board opinion which affirmed an administrative law
judge’s award to Troy Gregory of permanent partial disability
benefits
as
a
result
of
a
combination
psychological work-related injuries.
of
traumatic
and
Our function upon review is
to correct the Board only if we perceive that the Board has
“overlooked or misconstrued controlling statutes or precedent, or
committed an error in assessing the evidence so flagrant as to
cause gross injustice.”1
Because Eagle Carriers has presented the
identical arguments in support of the identical claims as it
presented to the Board and we do not believe the Board has
overlooked or misconstrued controlling statutes or precedent or
committed a flagrant error, we adopt the following portions of its
opinion as our own.2
On appeal, Eagle contends the ALJ erred in 1) relying on
an impairment rating not assessed in conformity with the
American Medical Association, Guides to the Evaluation of
Permanent Impairment (Guides); 2) awarding benefits based
upon
psychological
awarding
and
payment
psychiatric
for
factors;
medications
and,
prescribed
3)
for
conditions that predated the injury.
Gregory filed his application for resolution of
injury claim on March 9, 2001.
to
his
neck
and
low
back
Gregory alleged injuries
sustained
in
a
vehicular
accident when he was rear-ended by a semi tractortrailer. The matter was tried before the ALJ on July 24,
2001, and at the hearing Gregory testified, for the first
time, as to condition that would support a claim for a
psychiatric
injury.
The
ALJ
granted
a
request
by
Gregory’s counsel for additional time to explore that
1
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685,
687-688 (1992).
2
The Board based a part of its analysis on an unpublished
opinion of our Court, which we may not do. See Ky. R. Civ. P. (CR)
76.28(4)(c).
-2-
issue, and on August 22, 2001, the ALJ allowed Gregory to
amend his claim to include a psychological disability.
Gregory testified that in the early 1980s he
underwent surgical treatment for scoliosis, in the form
of placement of a Harrington Rod.
He sated that after
the surgery he was allowed to return to work without
restrictions, but that he occasionally suffered from
pain.
Gregory testified he sought relief from Dr.
Patton, his family doctor, who prescribed medication in
the form of
OxyContin, Demerol and Percodan.
Gregory
stated that the surgery allowed him to carry on a normal
life, which included working, hunting, fishing, playing
golf and softball and coaching.
Gregory stated that on
September 27, 2000[,] he was driving a semi tractortrailer when he was rear-ended by a loaded semi dump
truck.
Gregory testified that he now has significant
pain in his neck, back and shoulder and suffers from
daily headaches.
Gregory testified that he is depressed
and has difficulty sleeping.
is
treating
these
He stated that Dr. Patton
conditions
with
increased
pain
medication and antidepressants.
Medical evidence in this claim comes by way of
the reports, records, and/or depositions of Dr. John
Patton, Dr. James Templin, Dr. Gregory T. Snider, Dr.
James R. Bean, Dr. Scott Mohler and Dr. David Shraberg.
Dr. Patton’s records were filed on behalf of Gregory.
Many of the notes contained within those records are
-3-
illegible; however, it appears Dr. Patton treated Gregory
for back pain as early as October 3, 1998.
Dr. Patton
saw Gregory intermittently prior to the work-related
event for complaints of back pain. Dr. Patton prescribed
various medications including OxyContin and Percodan. In
a December 2, 1999[,] office note, Dr. Patton also
indicated
Gregory
depression.
office
was
not
coping
and
diagnosed
We are unable to decipher from Dr. Patton’s
notes
exactly
what
medication,
prescribed for this condition.
if
any,
was
It is apparent, however,
that after the work injury Dr. Patton increased the
dosage of the pain medication OxyContin from twenty
milligrams to forty milligrams.
Dr. Templin examined Gregory on April 17, 2001.
Gregory presented with complaints of constant dull aching
pain in the low back and neck pain radiating into the
shoulders.
history,
Dr. Templin, after receiving an appropriate
reviewing
performing
following
a
Gregory’s
physical
conditions:
degenerative
disc
musculoligamentous
1)
medical
examination,
chronic
disease;
strain;
3)
4)
low
records
and
diagnosed
the
back
chronic
S/P
pain;
2)
lumbosacral
Harrington
rod
placement from T2 through L4; 5) history of severe
thoracic
scoliosis;
6)
history
of
cervical
disc
herniation; 7) chronic cervical pain syndrome; 8) chronic
musculoligamentous strain; 9) degenerative cervical disc
disease; 10) chronic thoracic pain syndrome; and, 11)
-4-
chronic headaches.
Dr. Templin stated that Gregory did
not have an active impairment prior to the injury.
Dr.
Templin stated that according to the most recent Guides,
Gregory’s permanent whole body impairment was 15%.
assigned
5%
to
the
lumbar
spine
injury,
5%
to
cervical injury and an additional 6% for pain.
He
the
Dr.
Templin stated that Gregory completed a formal pain
related assessment that provided an impairment score of
thirty-six, which is equal to a 6% impairment to the
whole man.
Dr. Templin relied on Table 18-7, contained
in Chapter 18 of the Guides and the Combined Value Chart
to arrive at the 15% impairment rating.
Dr.
2001[,]
for
Snider
evaluated
purposes
medical evaluation.
of
a
Gregory
on
comprehensive
June
20,
independent
Dr. Snider received an appropriate
history of the accident, a medical and social history,
and he performed a physical examination.
Dr. Snider
diagnosed: 1) cervical strain; 2) preexisting cervical
arthritis; 3) low back pain; 4) scoliosis; 5) status post
Harrington rod placement; 6) preexisting breakage of
Harrington rod; and, 7) obesity.
Dr. Snider believed no
further active medical treatment was necessary. He noted
that
Gregory
had
chronic
back
pain
OxyContin prior to the work injury.
and
was
taking
He also recognized
that Gregory had been treated for depression prior to the
injury.
In addressing Gregory’s back condition, Dr.
Snider pointed out that Dr. David Stevens, the surgeon
-5-
who placed the Harrington rod, assessed a 20% whole
person
impairment
diagnosis.
in
1985
based
on
a
thoracolumbar
Dr. Snider believed there was no reason to
add to this impairment.
He assigned Gregory a DRE
Cervicthoracic Category II: 5% whole-person impairment.
Dr. Snider addressed Gregory’s complaints of pain both in
his reports and in deposition.
Dr. Snider stated:
In addition, please note that on Page 20 and
570 of the AMA Guides, 5th Edition, it is
stated that the chapters and table take into
account the effects of pain.
In my opinion,
Mr. Gregory’s case does not warrant additional
impairment for the simple fact that but for
complaints
of
pain
he
would
receive
no
impairment rating whatsoever due to neck or
low back problems.
Therefore, I think the
anatomic
impairment
determinations
suffice.
should
(Emphasis original.)
Dr. Scott Mohler performed a psychological
evaluation on August 30, 2001.
appropriate
history
standardized tests.
and
Dr. Mohler received an
performed
a
number
of
Dr. Mohler diagnosed pain disorder
associated with both psychological factors and a general
medical condition.
impairment
score
He also reported a pain related
of
forty-nine,
using
the
criteria
presented in Chapter 18 of the Guides. Dr. Mohler stated
that this finding places Gregory in the moderately severe
-6-
range of impairment. Dr. Mohler believed Gregory met the
criteria for a Class II mild impairment due to mental and
behavioral disorders.
He stated:
Although the current edition of the AMA Guides
does not assign a percentage of impairment for
mental and behavioral disorders, in my opinion
Mr. Gregory has a 10% permanent impairment to
the whole man based on psychological factors
alone.
One-half of this 10% impairment is
attributed to his work injury, and the other
half is due to pre-existing factors and/or
circumstances unrelated to this work injury.
Dr. Shraberg evaluated Gregory on September 7,
2001.
Dr. Shraberg received an appropriate background
history, which included depression and chronic pain due
to
“very
severe
congenital
destroscoliosis.”
Dr.
Shraberg stressed that Gregory was receiving powerful
pain medication in the form of OxyContin and was also
being treated with the anti-depressant Desyrel.
He
further noted that Gregory was being treated for pain and
depression before the work injury.
Dr. Shraberg was
extremely critical of Dr. Templin’s eleven diagnoses and
stated that Dr. Templin’s impressions can basically be
redacted to “progressive chronic pain due to degenerative
disc disease with a simple cervical sprain, resolved.”
Dr.
Shraberg
found
no
evidence
of
any
significant
depression related to the injury. He believed, according
-7-
to the Guides, Gregory was functioning at a Class I level
and assessed a 0% impairment.
After a thorough review of the lay and medical
testimony of record, the ALJ relied on Dr. Templin’s 15%
impairment rating and Dr. Mohler’s 5% impairment.
The
ALJ converted this 20% impairment to a total impairment
of 19% using the Combined Value Chart in the Guides. The
ALJ believed Gregory was not capable of returning to the
type of work performed at the time of the injury and
calculated
Gregory’s
benefits
utilizing
the
factor
contained in [Kentucky Revised Statutes] KRS 342.730(1)
(c) 1., i.e., 19% x 3.
KRS
The ALJ also found as follows:
342.020(1)
provides
that
an
employer shall pay for the cure and relief
from the effects of an injury or occupational
disease medical expenses as may reasonably be
required at the time of injury and thereafter
during disability.
The evidence is undisputed
that Gregory was actively receiving treatment
in the form of prescription medications at the
time of the injury.
However, the evidence is
also undisputed that Gregory’s medication use
increased following the injury.
In support of his position regarding
treatment for his physical condition, Gregory
-8-
has cited Derr Const. Co. v. Bennett.[3]
As
pointed out by Gregory a later employer may be
liable for medical treatment related to the
worsening
of
a
pre-existing
related condition.
to
Derr,
in
active
work-
This claim is not similar
that
Gregory’s
scoliosis is not work-related.
underlying
However, that
underlying condition was aggravated by a workinjury
in
the
Defendant/Employer
mid-1980’s
at
the
time
and
the
apparently
agreed to pay for medical expenses related to
that aggravation.
Furthermore,
treatment,
primarily
the
contested
prescription
pain
medication, is not specific to any one body
part since the medication provides relief from
pain throughout Gregory’s body.
Based
on
these
factors,
the
Administrative law Judge finds that Gregory’s
prescription pain medication is compensable.
However, the administrative Law Judge also
finds
that
any
treatment
specifically
and
solely related to Gregory’s scoliosis is not
related to this injury and therefore, not the
responsibility of this Defendant/Employer.
3
Ky., 873 S.W.2d 824 (1994).
-9-
The Administrative Law Judge further
finds that, but for the work-injury, Gregory’s
non-work related psychological problems would
not have required treatment.
is
liable
for
Therefore, Eagle
Gregory’s
psychological
treatment pursuant to the Act.
On appeal, Eagle first argues the ALJ erred in
relying upon the impairment rating of Dr. Templin, which
included pain as a factor.
Eagle directs our attention
to the testimony of Dr. Snider, which was critical of Dr.
Templin’s opinion that Gregory’s pain produced additional
impairment.
Eagle
relies
heavily
on
the
following
excerpt from Chapter 18 of the Guides, wherein it is
stated:
Physicians recognize the local and
distant pain that commonly accompanies many
disorders.
Impairment ratings in the Guides
already have accounted for pain.
when
a
cervical
spine
For example,
disorder
produces
radiating pain down the arm, the arm pain,
which is commonly seen, has been accounted for
in the cervical spine impairment rating.[4]
Thus, Eagle reasons that because Dr. Templin has not
explained his findings, the award of additional benefits
4
Guides, 5th Edition, p. 570.
-10-
for a pain related assessment is error as a matter of
law.
Over the past several years, this Board has
been
requested
to
address
an
increasing
number
of
complaints concerning the appropriate use of the Guides
by physicians in their ultimate determination of an
impairment rating.
We have consistently held that an
impairment rating is a medical determination and the
assessment of that rating is within the distinct province
of
physicians.
The
Guides
provides
a
tool
for
physicians, and like the mastery of any tool, its proper
use rests on the experience, training and skill of the
user.
We have no doubt in many cases, physicians, in
attempting
to
evaluate
impairment,
misapply
or
misinterpret the Guides. Nonetheless, a medical question
requires a medical answer.
While ALJs may have acquired
a significant level of expertise in interpreting the
Guide, there remain[s] severe limitations on an ALJ’s
discretion to apply and calculate impairment ratings.[5]
The process of determining permanent partial disability
benefits under KRS 342.730, as amended effective December 12, 1996,
begins with an impairment rating under the AMA Guides.
Regardless
of experience or training, and as exposed as they may be to medical
issues, administrative law judges are not trained in performing
medical
examinations.
An
impairment
5
rating
is
a
medical
Compare Newberg v. Garrett, Ky., 858 S.W.2d 181 (1993);
Watkins v. Ampak Mining, Inc., Ky. App., 834 S.W.2d 699 (1992).
-11-
determination and, as a medical determination, it is not within the
ALJ’s discretionary authority to arrive at a separate and distinct
impairment rating from that which is offered by a physician.
The AMA Guides are written for physicians.
The Guides
make it clear that their purpose is to provide objective standards
for the “estimating” of permanent impairment ratings.
In recent
years, in an effort to make the Guides more comprehensive, that
tome has increased in size from the 339 page volume Fourth Edition
to the 613 page Fifth Edition.
We applaud the efforts of the Guides’ editors to make
that
digest
more
comprehensive.
Nonetheless,
no
matter
how
thorough the Guides have been in the past, nor how thorough they
may become in the future, the fact will remain that they are
designed as a tool for the making of impairment “estimates.”
Page
1 of Chapter 1 of the Fourth Edition states that the Guides provide
a
standard
framework
and
method
of
analysis
through
which
“physicians” can evaluate, report on, and communicate information
about the impairments of any human organ system.
Section 1.2 of
the Fourth Edition of the American Medical Association Guidelines
to Functional Impairments states that using the Guides requires
integrating
previously
gathered
medical
results of a current medical evaluation.
information
with
the
The editors stress in
Section 1.3 of the Fourth Edition that it should be understood that
the Guides do not and cannot provide answers about every type and
degree of impairment, because of the infinite variety of human
medical conditions and because the field of medicine and medical
practice is characterized by constant change in understanding
-12-
disease
and
its
manifestations,
diagnosis
and
treatment.
Furthermore, human functioning in everyday life is a highly dynamic
process, one that presents a great challenge to those attempting to
evaluate impairment.
In this respect, the Guides’ authors also
provide the following caveat:
The physicians’ 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.
of
These attributes compose part of the ‘art’
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.
In evaluating an impairment, the Guides note that it is
important to obtain enough clinical information to characterize it
in accordance with the Guides’ requirements.
Once this task is
accomplished, the evaluator’s findings may be compared with the
clinical information already available about the individual.
If
the
of
evaluator’s
findings
are
consistent
with
the
results
previous clinical studies, the findings may be compared with the
Guides’ criteria to estimate the impairment.
-13-
Courts,
discretionary
while
struggling
authority
of
an
to
ascertain
administrative
the
law
level
judge
of
and
primarily focusing on KRS 342.732, have repeatedly acknowledged
that there are limitations on an ALJ’s discretion as to the
application and recalculation of medical impairment ratings under
the AMA Guides.6
The Courts have permitted ALJs to recalculate the
FVC and FEV-1 measurements in occupational lung disease claims only
in circumstances where the tables are contained in the AMA Guides
and the recalculations of predicted normal values result in nothing
more than simple mathematical function.
It seems obvious that if
the courts would not permit an ALJ to perform the function of
personally measuring an individual to determine his height for
purposes of recalculation of spirometric test results, a separate
analysis of the amount of impairment on a physical examination
would clearly be inappropriate.
Continuing its analysis, the Board said:
In the instant case, the ALJ has resolved
conflicting evidence in favor of Gregory and on this
issue, we cannot say the ALJ erred as a matter of law.
We would also point out to Eagle that the issue is not as
clear-cut as it would have us believe.
While, as a
general matter, pain may already be included in an
impairment rating, the Guides also provides an “algorithm
for
rating
pain-related
6
impairment
in
conditions
See, e.g., Newberg v. Garrett, supra, n. 5; Wright v.
Hopgood Mining, Ky., 832 S.W.2d 884 (1992); and Watkins v. Ampak
Mining Co., supra, n. 5.
-14-
associated with conventionally ratable impairment.”[7]
This
section
of
the
Guides
demonstrates
that
an
impairment rating can be increased by 3% if pain-related
impairment substantially increases a patient’s burden.
Dr. Templin’s report indicates he performed a formal pain
assessment and the results seem to support an increase of
3% for both the cervical and lumbar ratings.
In summary, we hold that questions involving
the application or misapplication of the Guides are
medical questions to be resolved by the ALJ based on the
evidence
including
of
record.
Traditional
substantial,
rules
compelling,
and
of
analysis
conflicting
evidence continue to apply.
Eagle next argues the ALJ erred, as a matter of
law, by awarding any impairment based upon psychological
factors.
Specifically, Eagle argues that Dr. Mohler did
not have the benefit of Dr. Patton’s medical records,
which contained crucial information regarding Gregory’s
diagnosed preexisting depression.
We are cognizant of
the general rule [found in Osborne v. Pepsi-Cola Co.,8]
that if a history given to a physician is sufficiently
impeached, the ALJ may disregard opinions based on that
history.[ ]
In Osborne, the Court stated, “[w]hen a
medical opinion is based solely upon history, the trier
of fact is not constricted to a myopic view focusing only
7
See Guides, Fig. 18-1, p. 574.
8
Ky., 816 S.W.2d 643 (1991).
-15-
on the physician’s testimony. Other testimony bearing on
the accuracy of the history may be considered.”[9]
Dr. Mohler’s report reveals that Gregory denied
a prior history of psychological or psychiatric problems
or
treatment.
This
is
in
clear
opposition
to
Dr.
Patton’s diagnosis of depression, which occurred prior to
the
work-related
injury.
Nonetheless,
Dr.
Mohler’s
evaluation revealed significant preexisting psychological
stressors unrelated to the work event.
Thus, he did not
relate
to
all
of
Gregory’s
impairment
the
injury.
Gregory’s prior treatment for depression by Dr. Patton
does
not
render
Dr.
Mohler’s
apportionment
untrustworthy as a matter of law.
opinion
As earlier stated in
this opinion, issues of weight and credibility are to be
resolved by the fact finder.
Dr. Mohler’s opinion of a
5% psychological impairment as a result of the injury
constitutes
substantial
evidence
and
we
are
without
authority to hold otherwise.[10]
Eagle finally argues the ALJ erred in requiring
payment for OxyContin and for psychiatric/psychological
treatment. Initially, we point out to Eagle that we have
affirmed the ALJ’s award of benefits, which includes an
additional
6%
psychological
impairment
for
impairment.
It
pain
is
as
well
axiomatic
as
a
5%
that
an
employer is responsible to pay for the cure and relief
9
Id. at 647.
10
Ky. Rev. Stat. (KRS) 342.285.
-16-
from
the
effects
of
a
work-related
injury.[11]
As
pointed out by the Court in Derr [ ], “liability for
medical expenses requires that only an injury was caused
by work and the medical treatment was necessitated by the
injury.”[12]
Further, KRS 342.020 contains no exclusion
for prior active disability. We believe the ALJ, relying
on the testimony of Dr. Templin and Dr. Mohler, properly
determined
Eagle
was
responsible
for
payment
for
prescription medication to treat work-related low back,
neck and psychiatric conditions.
Because we agree with the Board’s decision, we affirm its
opinion upholding the ALJ’s award of permanent partial disability
benefits to Gregory.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles E. Lowther
BOEHL, STOPHER & GRAVES, LLP
Lexington, Kentucky
Timothy J. Wilson
WILSON, SOWARDS, POLITES
MCQUEEN
Lexington, Kentucky
11
See KRS 342.020.
12
Derr Const. Co., supra, n. 3, at 827.
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