DAY HOLDING/NURSE STAFFING VS. COMP ROGERS (ROBERTA), ET AL.
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RENDERED: OCTOBER 22, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000799-WC
DAY HOLDING/NURSE STAFFING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-09-94579
ROBERTA ROGERS; HON.
GRANT S. ROARK,
ADMINISTRATIVE LAW
JUDGE; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; LAMBERT, JUDGE; HENRY,1 SENIOR
JUDGE.
TAYLOR, CHIEF JUDGE: Day Holding/Nurse Staffing (Day Holding) petitions
this Court to review an opinion of the Workers’ Compensation Board (Board)
entered March 3, 2010, affirming the Administrative Law Judge’s (ALJ’s) award
1
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
of permanent partial disability benefits to Roberta Rogers based upon 10 percent
functional impairment following a work-related injury. We affirm.
Resolution of this case centers upon one issue – whether the ALJ’s
finding that Rogers suffered a 10 percent functional impairment as a result of a
work-related injury was supported by substantial evidence of a probative value.
Day Holding contends that the evidence is lacking and that the Board erred in
concluding otherwise. Specifically, Day Holding argues that the ALJ erroneously
relied upon the medical opinion of Dr. Warren Bilkey. Day Holding points out
that Dr. Bilkey opined that Rogers suffered a 10 percent functional impairment but,
simultaneously, admitted that Rogers had not reached maximum medical
improvement (MMI). Under Kentucky Revised Statues (KRS) 342.730, Day
Holding argues that the American Medical Association’s Guidelines (AMA
Guidelines) must be utilized by a physician in formulating functional impairment
and that the AMA Guidelines mandate that a claimant reach MMI before
considering functional impairment. As Dr. Bilkey believed that Rogers had not
reached MMI, Day Holding maintains it was clear error for the ALJ to rely upon
the doctor’s opinion of functional impairment.
It is well-established that a physician’s opinion as to a claimant’s
functional impairment must conform to the AMA Guidelines. KRS 342.730(1)(b).
It is also recognized that the ALJ is the sole fact-finder and in that role may choose
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to accept portions and disregard other portions of an expert witness’ testimony.
Copar, Inc. v. Rogers, 127 S.W.3d 554 (Ky. 2003).
In this case, the Board reasoned that the ALJ accepted only the
portion of Dr. Bilkey’s opinion dealing with Rogers’ functional impairment and
rejected the doctor’s opinion as to MMI. The Board noted that the ALJ could have
inferred from Dr. Meneffe Seay that Rogers reached MMI approximately one
month before Dr. Bilkey examined Rogers. It was this exam that would form the
basis of Dr. Bilkey’s opinions as to Rogers’ functional impairment and MMI.
Considering the record as a whole, we conclude that evidence of a
probative value supported the ALJ’s finding that Rogers was entitled to an award
of permanent partial disability benefits based upon a 10 percent functional
impairment. Thus, the Board did not err by affirming the ALJ’s award. W. Baptist
Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992).
For the foregoing reasons, the opinion of the Worker’s Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Walter E. Harding
Louisville, Kentucky
Ched Jennings
Louisville, Kentucky
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