LISA GAIL REINBOLD V. FORD MOTOR COMPANY ; HON . DONALD G . SMITH, ADMINISTRATIE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED." PURSUANT TO THE RULES OF
CIVI_L PR OCED URE PROMUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYIN ANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : August 26, 2004
NOT TO BE PUBLISHED
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2003-SC-0705-WC
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LISA GAIL REINBOLD
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2003-CA-0471-WC
WORKERS' COMPENSATION BOARD NO . 99-64366
FORD MOTOR COMPANY ; HON . DONALD G .
SMITH, ADMINISTRATIE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined that the claimant's work-related
injury caused no permanent impairment and, therefore, that she was entitled to medical
benefits but not to income benefits . The decision was affirmed by the Workers'
Compensation Board (Board), and the Court of Appeals affirmed the Board . Appealing,
the claimant maintains that the evidence in her favor was overwhelming and compelled
an award of income benefits . We affirm.
The claimant began working on the defendant-employer's assembly line in 1995 .
On October 25, 1996, she injured her cervical spine in a non-work-related motor vehicle
accident . She returned to work in December, 1996, but quit again in January, 1997,
due to neck pain . In March, 1997, she underwent a two-level cervical fusion at C5-6
and C6-7 but returned to work in July of that year . She testified that she performed her
usual work and required no medication or medical treatment for two years thereafter . In
July, 1999, however, her workload doubled, and she was required to use an overhead
gun to attach and tighten sway bars and shock brackets . She testified that she began
to experience pain in her neck and low back and asked to be reassigned to other duties.
On August 20, 1999, her entire back went into spasm, and she could hardly walk. She
notified her employer and saw Dr. Farmer, the plant physician .
After an unsuccessful, two-week attempt at light-duty work, the claimant returned
to Dr . Farmer, who ordered a CT scan . She remained off work and received temporary
total disability (TTD) benefits until January 23, 2000. At that time, she returned to a light
duty job, stocking the rear axle deck . She continued in that capacity for about 1
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years. More duties were added to the job at that time, so she was assigned to a lighter
job that she could perform . She testified that she was active in sports and played
volleyball before August 20, 1999, but that she was no longer able to do so . She could
only ride her bicycle or drive for short distances before her back became painful .
Dr. Fadel testified that the claimant sustained a work-related injury in 1999,
noting that there was degenerative discopathy and damage at C4-5, the level above the
previously-fused area, and also that there was a small disc rupture at L5-S1 . Relying
on the DRE Model of the Fifth Edition of the AMA Guides to the Evaluation of
Permanent Impairment (Guides ), he testified that the injury caused a 16% AMA
impairment . He explained that he attributed an 8% impairment to the cervical spine, not
including the impairment from any previous pathology, and an 8% impairment to the
lumbar spine. Also, he imposed restrictions against repetitive extension and flexion of
the cervical spine and against occasional lifting of more than ten pounds.
In contrast, although Dr. Wolens assigned a 20% impairment to the cervical
spine, he used the Range of Motion Model and testified that the entire impairment was
due to the non-work-related motor vehicle accident and cervical fusion . Dr. Wolens
acknowledged that the claimant had a small right paracentric disc herniation at C4-5
that was not previously evident. He noted, however, that her symptoms and the
physical findings indicated that it was not clinically significant. In his opinion, the workrelated incident had only aggravated the cervical condition and caused no permanent
impairment . Furthermore, he assigned a 0% impairment to the lumbar spine. In his
opinion, the lower back complaints were not related to her work . He stated that
although he would restrict the claimant from extreme cervical motion and from heavy
lifting, he would have imposed those restrictions after the fusion surgery .
In a second deposition, taken April 22, 2002, Dr. Wolens explained in detail how
impairment is assessed under the Guides . After reviewing Dr. Fadel's deposition, Dr.
Wolens took issue with his methodology, explaining numerous reasons why it was
erroneous . He testified that the Range of Motion Model should have been used due to
the previous cervical fusion and that even had use of the DRE Model been appropriate,
the claimant would have fallen into category IV rather than category II . With respect to
the back injury, he testified that Dr. Fadel placed the claimant in DRE lumbar spine
category II but that she did not meet any of the criteria for that category, explaining the
reasons why she did not. Furthermore, he testified that Dr. Fadel had added the
cervical and lumbar impairments rather than combining them using the Combined
Values Table . Using what he contended was the proper method for assessing the
cervical impairment under the Range of Motion Model, he explained why the claimant
had a 20% cervical impairment that was wholly attributable to the two-level cervical
fusion . He characterized the fusion as an active condition rather than a dormant one
and stated that it was only aggravated by the claimant's work.
Don Anderson, the employer's labor relations representative, testified that the
claimant returned to work under restrictions after the 1997 cervical fusion . He stated
that she was placed on restrictions in January, 1999, and they remained in effect as of
August 20, 1999 . They were changed after the August, 1999, incident.
Noting that the medical evidence was conflicting, the ALJ relied upon testimony
from the claimant and Dr. Fadel that the back condition was work-related but relied
upon testimony from Dr. Wolens that it caused no permanent impairment . Thus, the
claimant received only medical benefits for the condition . Again relying on Dr. Wolens,
the ALJ determined that the claimant's work caused an injury insofar as it aggravated
her pre-existing cervical condition but also determined that it caused no permanent
impairment . Therefore, she received medical benefits for the condition, including
massage therapy that provided pain relief, but no income benefits .
Appealing, the claimant asserts that in the face of a September, 1999, CT scan
that revealed a herniation at L5-S1, the ALJ erred in relying upon Dr. Wolens and
refusing to award income benefits for the back injury. She argues that her medical
history before the August 20, 1999, incident contained no complaints of low back pain.
Emphasizing that Dr. Fadel attributed both the condition and an 8% lumbar impairment
to the incident, she concludes that reliance on Dr. Wolens was patently unreasonable
under the circumstances . She maintains that the evidence compelled findings that she
had an 8% lumbar impairment under the AMA Guides and that it was due to the August,
1999, incident .
The AU determined that the claimant was not totally disabled, and that finding is
not disputed . Since December 12, 1996, a finding of partial disability is no longer based
on the Osborne v. Johnson, Ky., 432 S.W .2d 800 (1968), factors. Although income
benefits continue to be awarded for occupational disability, KRS 342 .730(1)(b) bases
the amount of a partial disability award on the impairment caused by a work-related
injury . Adkins v. R & S Body Co. , Ky., 58 S.W .3d 428 (2001). KRS 342.0011(36)
makes it clear that an AU may select the impairment rating upon which to rely.
The extent of a worker's impairment and the proper interpretation of the Guides
are medical questions . Kentucky River Enterprises, Inc . v. Elkins, Ky., 107 S.W.3d 206
(2003). Where medical experts differ in their interpretation of the Guides , it is the ALJ's
function to weigh the conflicting testimonies and decide which expert to rely upon. In
this instance, the AU determined that Dr. Wolens' testimony was more credible than Dr.
Fadel's and chose to rely upon it. Contrary to the claimant's assertion, we are
convinced that the findings with respect to the lumbar condition were reasonable and
conclude, therefore, that the Court of Appeals was correct in refusing to disturb them.
Special Fund v. Francis, Ky., 708 S .W .2d 641, 643 (1986).
The claimant also argues that the AU erred in relying upon Dr. Wolens with
respect to the cervical injury. She asserts that she was able to perform her job, without
restrictions or complaints of cervical pain after the fusion surgery . She maintains,
therefore, that the exclusion of pre-existing disability was erroneous.
Pre-existing disability is excluded from an award if it contributes to the degree of
permanent disability that remains after the compensable injury. See Schneider v.
Putnam , Ky., 579 S.W.2d 370, 372 (1979). Since December 12, 1996, partial disability
benefits are awarded on the basis of the impairment that an injury causes rather than
under the Osborne v . Johnson standard . Therefore, as a rule, any pre-existing
impairment must be excluded when determining the impairment that is compensable .
See Roberts Brothers Coal Co. v. Robinson , Ky., 113 S .W.3d 181 (2003). Where a
condition results in a pre-existing impairment, the extent that it accounts for a preexisting disability under the Osborne v. Johnson standard is immaterial .
Despite the claimant's assertion that the decisions below were unreasonable .
because she no longer retains the physical capacity to perform the type of work that she
performed at the time of injury, an award of income benefits under KRS 342.730(1)(b)
requires a finding that the underlying injury caused a permanent impairment . Dr.
Wolens testified that the claimant had a 20% cervical impairment, but he also testified
that it was entirely due to the pre-existing cervical fusion . He explained his calculation
of the impairment under the Guides as well as his reasons for concluding that although
the claimant's work aggravated the cervical condition, it caused no additional
impairment. Furthermore, he explained why Dr. Fadel's assessment of the cervical
impairment and his attribution of an impairment to the August, 1999, incident were
incorrect under the Guides . Under the circumstances, the ALJ's decision to rely upon
Dr. Wolens was not unreasonable; therefore, different findings of fact were not
compelled . Special Fund v. Francis , supra .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
W. David Shearer, Jr.
Christopher Newell
The Speed Building, Ste . 312
333 Guthrie Green
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Wesley G . Gatlin
Boehl Stopher & Graves
2300 Capital Holding Center
44 W . Market Street
Louisville, KY 40202
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