JEWISH HOSPITAL v. MARCIA RAY; HON. BONNIE KITTINGER, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
MARCH 12, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001378-WC
JEWISH HOSPITAL
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-53585
v.
MARCIA RAY; HON. BONNIE KITTINGER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON AND MINTON, JUDGES.
JOHNSON, JUDGE:
Jewish Hospital has petitioned for review of an
opinion of the Workers’ Compensation Board entered on June 4,
2003, which affirmed the Administrative Law Judge’s
determination that Marcia Ray has a 29% permanent impairment
rating pursuant to the Fifth Edition of the American Medical
Association (AMA) Guides to the Evaluation of Permanent
Impairment.
Having concluded that the Board has not overlooked
or misconstrued controlling statutes or precedent or committed
an error in assessing the evidence so flagrant as to cause gross
injustice,1 we affirm.
Ray began working for Jewish Hospital in 1981 as a
registered nurse.
On July 1, 2000, Ray was injured during the
course of her employment when she slipped and fell in the
hospital cafeteria during her lunch break.
Ray suffered
injuries to her left hand, neck and lower back.
As a result of
her injuries, Ray underwent surgery on January 29, 2001.2
On
April 25, 2002, Ray filed an application for resolution of
injury claim with the Department of Workers’ Claims.3
On December 30, 2002, the ALJ rendered an opinion,
award and order regarding Ray’s claim.
Among other things, the
ALJ awarded Ray permanent partial disability benefits based on a
29% impairment rating pursuant to the Fifth Edition of the AMA
Guides.
The ALJ’s opinion, award and order stated, in relevant
part, as follows:
All of the physicians who have provided
impairment ratings in this case, evaluated
the Plaintiff after March 1, 2001, the date
on which the workers’ compensation
1
Western Baptist Hospital v. Kelly, Ky., 827 S.W.2d 685, 687-88 (1992).
2
Ray had a cervical MRI performed on December 9, 2000, which revealed a disc
protrusion at disc level C4-5. Shortly thereafter, Ray was referred to Dr.
David Petruska, who recommended surgery.
3
Aside from a three-week vacation that she took in July 2000, Ray worked up
until the time of her surgery on January 29, 2001. Ray returned to work
approximately four months after the surgery was performed and she is
currently employed by Jewish Hospital.
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Commissioner proclaimed, through
certification, that the [Fifth] Edition of
the AMA Guides shall be the “latest
available edition” under the Workers’
Compensation Act. KRS 342.730(1)(b)[ ]
requires that a permanent partial disability
determination be based on impairment ratings
using the latest available edition of the
AMA Guides. Although the issue is not
entirely and finally settled in case law as
of this date, the undersigned Administrative
Law Judge is of the opinion that medical
evaluations after March 1, 2001 should
include impairment ratings derived pursuant
to the Fifth Edition of the AMA Guides.
The ALJ had the benefit of several evaluations and
opinions concerning Ray’s impairment rating prior to rendering
her decision.
In particular, Dr. Petruska, who evaluated Ray’s
condition on February 26, 2002, assigned a 30% permanent
impairment rating.4
Dr. Petruska based his assessment on the
Fifth Edition of the AMA Guides.
Dr. S. Pearson Auerbach, who
evaluated Ray’s condition on July 1, 2002, assigned a 32%
permanent impairment rating based on the Fifth Edition of the
AMA Guides.5
condition.
In addition, Dr. Frank Wood also evaluated Ray’s
Dr. Wood assessed Ray’s condition under both the
Fourth and Fifth Editions of the AMA Guides.
Dr. Wood indicated
that a 15% impairment rating would be appropriate under the
4
Dr. Petruska assigned a 25% impairment rating to Ray’s cervical spine and a
5% impairment rating to her lumbar spine. Dr. Petruska added these two
percentages together to arrive at a total whole body impairment of 30%.
5
In his report, Dr. Auerbach indicated that his assessment was based on the
combined value of 28% for Ray’s cervical fusions and 5% for her chronic
lumbosacral strain. While the sum of these two ratings is 33%, he set the
combined rating at 32%.
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Fourth Edition of the AMA Guides and that a 25% impairment
rating would be appropriate under the Fifth Edition of the AMA
Guides.6
Dr. Wood submitted his evaluation on August 2, 2002.
Ray appealed the ALJ’s award and on June 4, 2003, the
Board entered an opinion affirming in part, vacating in part,
and remanding the claim to the ALJ.
The Board’s opinion stated,
in relevant part, as follows:
Until there is some definitive
authority to the contrary, the Board
continues to believe that when a claim
transcends the period of applicability of
the [Fourth] and [Fifth] Editions of the AMA
Guides, the selection of a permanent
impairment rating may be influenced by the
date upon which the physician rendered his
opinion and whether that physician’s opinion
is credible. . . . We take care to note
that we find no directive in the current
case or statutory law requiring the factfinder to reject, as a matter of law, any
permanent impairment rating assessed by a
medical expert under the [Fourth] Edition of
the AMA Guides in the context of an
evaluation taking place after March 1, 2001.
We do not interpret the ALJ’s decision in
the case sub judice as indicating an
understanding on her part that she was
required, as a matter of law, to discard
[any assessments based on the [Fourth]
Edition of the AMA Guides]. However, we
believe the ALJ may . . . reject as lacking
in probative value, a [Fourth] Edition
impairment rating assessed for an injury
6
In his report, Dr. Wood stated that it was improper to rate Ray’s lower back
condition under the AMA Guides, regardless of whether the Fourth or Fifth
Edition of the AMA Guides was used. Dr. Wood opined, inter alia, that Ray’s
lower back problems “were neither caused by the July 1, 2000, injury nor
brought to disabling reality by that injury.” Dr. Wood further opined that
Dr. Petruska inappropriately “added” rather then “combined” the values for
Ray’s cervical and lumbosacral impairment, resulting in an erroneous 30%
impairment rating as opposed to a 29% impairment rating.
-4-
occurring prior to March 1, 2001, but
pursuant to an evaluation and report
generated after that date.7
This petition for review followed.
Jewish Hospital claims that the Board erred by
concluding that the ALJ was permitted to rely on the Fifth
Edition of the AMA Guides in determining Ray’s impairment
rating.
In sum, Jewish Hospital contends that the ALJ was
required to utilize the version of the AMA Guides in effect on
the date Ray was injured, July 1, 2000, when determining her
impairment rating.
We cannot agree.
It is well-established that the function of this Court
in reviewing the Board “is to correct the Board only where the
[ ] Court perceives 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.”8
Pursuant to KRS9 342.730(1)(b), an injured workers’ impairment
rating is to be determined by utilizing the latest available
edition of the AMA Guides.
The statute provides, in relevant
part, as follows:
For permanent partial disability,
sixty-six and two-thirds percent (66-2/3%)
of the employee’s average weekly wage but
7
The Board vacated and remanded on the issue of Ray’s average weekly wage.
8
Western Baptist, 827 S.W.2d at 687-88.
9
Kentucky Revised Statutes.
-5-
not more than seventy-five 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[.]
Pursuant to 803 KAR10 25:010 § 1(9), the “latest available
edition” is defined as:
[T]hat edition of the “Guides to the
Evaluation of Permanent Impairment” which
the commissioner has certified as being
generally available to the department,
attorneys, and medical practitioners, by
posting prominently at the department’s
hearing sites the date upon which a
particular edition of the “Guides to the
Evaluation of Permanent Impairment” is
applicable for purposes of KRS Chapter 342.
The Fifth Edition of the AMA Guides was certified by the
Commissioner of the Department of Workers’ Claims as being the
“latest edition available” on March 1, 2001.
As previously
discussed, Ray filed her claim for benefits on December 30,
2002.
Thus, the “latest edition available” at that time was the
Fifth Edition.
Jewish Hospital asserts that a change in the latest
edition of the AMA Guides is the legal equivalent of a statutory
amendment by the Legislature.
The argument follows that the
ALJ’s decision to utilize the Fifth Edition of the AMA Guides in
determining Ray’s impairment rating constituted a retrospective
10
Kentucky Administrative Regulations.
-6-
application of KRS 342.730(1)(b) in violation of KRS 446.080(3),
which provides that “[n]o statute shall be construed to be
retroactive, unless expressly so declared.”
Jewish Hospital
cites Spurlin v. Adkins,11 in support of its argument.
Therein,
the Supreme Court of Kentucky stated that “in instances where
the amendment at issue has affected the level of income benefits
payable for a worker’s occupational disability, the Court has
consistently determined that . . . the law on the date of injury
or last injurious exposure controls.”12
First and foremost, we are unpersuaded that a change
in the latest edition of the AMA Guides is the legal equivalent
of a statutory amendment.
Jewish Hospital cites no case law in
support of this contention and we are of the opinion that the
language “latest edition available” contained in KRS
342.730(1)(b) reflects nothing more than a conscious regard on
the part of the Legislature of the ever-evolving medical
standards applicable to work-related injuries.
Moreover, even if we were to assume that the adoption
of each subsequent version of the AMA Guides represents a
statutory amendment, Jewish Hospital’s argument still fails.
It
is well-established that workers’ compensation statutes are to
be interpreted in a manner consistent with their munificent and
11
Ky., 940 S.W.2d 900 (1997).
12
Id. at 902.
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beneficent purpose.13
As previously discussed, KRS 342.730(1)(b)
requires that income benefits for permanent partial disability
be based on a permanent impairment rating as determined by the
“latest edition available” of the AMA Guides.
In order to
accept Jewish Hospital’s argument, we would have to read the
statute as meaning that an injured worker’s permanent impairment
rating is to be determined by the “latest edition available [at
the time of the injury]” [emphasis added].
Had the Legislature
intended such a result, surely it would have included the phrase
“at the time of the injury.”
To hold otherwise would contravene
the very purpose of the Workers’ Compensation Act, which is to
aid injured or deceased workers or their dependents.
Based on the foregoing reasons, the opinion of the
Workers’ Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
James G. Fogle
Jane Ann Pancake
Louisville, Kentucky
BRIEF FOR APPELLEE, MARCIA
RAY:
No brief filed.
13
See Dick v. International Harvester Co., Ky., 310 S.W.2d 514, 515 (1958)
(“[w]e approach [this issue] under the influence of the remedial principle of
workmen’s compensation and the development and progress of legislation to
accomplish its humane and beneficent purpose”).
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