DANA CORPORATION v. WILLIAM MICHAEL CARTER; DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
December 13, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2002-CA-001235-WC
DANA CORPORATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-99-67289
v.
WILLIAM MICHAEL CARTER;
DONALD G. SMITH, ADMINISTRATIVE
LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM AND MILLER, JUDGES.
BARBER, JUDGE:
The Appellant, the Dana Corporation (“Dana”),
asks us to review the ALJ’s calculation of a pre-existing, active
impairment in this appeal following remand.
The Workers’
Compensation Board concluded that the ALJ’s calculation was
reasonable, based upon the totality of the evidence.
We agree
and affirm.
On November 27, 2000, the Appellee, William Michael
Carter (“Carter”) filed a claim with the Kentucky Department of
Workers’ Claims, alleging a July 20, 1999 “[r]ight elbow,
cervical, [and] psychological injury” due to repetitive motion
from his work loading piston rings at Dana.1
On July 13, 2001,
the ALJ rendered an Opinion and Award, finding Carter to have a
33% impairment rating – 8% for the elbow condition and 30% for
the psychological condition. Dana appealed to the Board.2
On
October 31, 2001, the Board rendered an Opinion, affirming in
part, reversing in part, and remanding:
Inasmuch as Dr Adams, upon whom the ALJ
relied, found a portion of Carter’s
psychiatric impairment to be preexisting and
active, we believe this matter must be
remanded to the ALJ for consideration of
whether a portion should be found noncompensable due to the pre-existing active
Tourette’s syndrome or, at a minimum, to
provide some reasonable explanation for
rejecting such a finding.
On December 14, 2001, the ALJ rendered an Order on
remand:
[F]urther findings are necessary with regard
to the impairment rating for the Plaintiff’s
psychiatric condition. The Administrative Law
Judge continues to find Dr. Adams to be the
most persuasive on this issue. . . . Dr.
Adams specifically gave a 25% to 50%
impairment for the Plaintiff’s psychiatric
condition, with 10% to 20% of that number to
be considered pre-existing active disability
due to turret syndrome [sic]. Since the
Plaintiff had a 25% impairment due to the
psychological condition, and 10% of that is
considered pre-existing active disability,
the Plaintiff would only have a 22.5%
compensable impairment for the psychiatric
condition.
Upon remand, the ALJ reduced the total impairment to
30.5%
--8% for the elbow and 22.5% for the psychological
1
The cervical claim was ultimately dismissed on notice.
Carter cross-appealed; however, the issue raised on cross-appeal
is not at issue on this appeal.
2
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condition [25% x 10% pre-existing active = 2.5%; 25%- 2.5% 22.5%].
Dana filed a petition for reconsideration, contending
that there should be a 10-20% active carve-out based upon Dr.
Adams’ opinion.
By order of January 16, 2002, the ALJ denied the
petition, because “the report of Dr. Adams indicates that 10-20%
of the Plaintiff’s 25-50% [psychological] impairment was
considered an active condition.”
On its second appeal to the Board, Dana argued that the
ALJ “was clearly erroneous in his interpretation of Dr. Adams’
report.”
Dana maintained that the ALJ should have subtracted a
10% prior active psychological impairment from the 25% overall
psychological impairment, leaving Carter with 15% compensable
psychological impairment, not 22.5%.
On May 8, 2002, the Board
rendered a unanimous opinion affirming the ALJ’s decision.
The
Board explained that Dana had the burden of proof and was
unsuccessful on the issue of an active carve-out; therefore, the
standard of review on appeal is whether the evidence compelled a
different result than reached by the ALJ, citing Wolf Creek
Collieries v. Crum3 and Special Fund v. Francis4.
The Board concluded that the ALJ’s interpretation of
Dr. Adams’ Form 107 report was reasonable, in light of the fact
that:
Section H of the form, dealing with apportionment, does
not require the percentage to be expressed in terms of the “whole
3
4
Ky. App., 673 S.W.2d 735 (1984).
Ky., 708 S.W.2D 641 (1986).
-3-
body,” unlike Section I, dealing with impairment, which specially
requires an AMA rating for the whole body.
Further, Dr. Adams
clearly attempted to minimize the effect of the Tourette’s
syndrome upon Carter’s ability to work.
The Board explained
that Dana’s interpretation of Dr. Adams’ report would be
inconsistent with the doctor’s opinion that Carter was able to
work prior to the injury, despite the Tourette’s syndrome, and
Carter’s own testimony to that effect.
The Board believed that
the evidence fell “far short” of compelling a finding of a
greater degree of active psychological disability, than found by
the ALJ.
On June 7, 2002, Dana filed a Petition for Review to
this Court.
Dana attempts to characterize this as a matter of
“first impression,” involving an erroneous method of calculation.
We believe that this is simply a matter of interpretation – that
is the ALJ’s function, not ours.5
KRS 342.290.
According to Section G of Dr. Adams’ Form 107, Carter’s
psychological complaints –that he became depressed, very angry
and socially withdrawn -- are caused by his work-related injury.
As noted by the Board, Section F, dealing with “Apportionment,”
asks the physician to specify the percentage of impairment due to
the prior active condition, but does not speak in terms of “whole
body impairment.”
By contrast, Section I, dealing with
“Impairment,” does ask for the percentage of “whole body
5
Jackson v. General Refractories, Ky., 581 S.W.2D 10 (1979)
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impairment” using most recent AMA Guides to Evaluation of
Permanent Impairment.
We agree with the Board’s analysis and
affirm.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, WILLIAM
MICHAEL CARTER:
Steven D. Goodrum
Lexington, Kentucky
Michael D. Lindsey
Bowling Green, Kentucky
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