MARTY LEE EASON V. HORNBACK CABINET COMPANY, ET AL
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IMPORTANTNOTICE
ED
NOT TO BEPUBL ISH -OPINION
THIS OPINION IS DESIGNATED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PR OCED URE PR OMUL GA TED B Y THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL 1PTO TBE
CITED OR USED AS A UTHORITY INANY OTHER
CASE INANY COURT OF THIS STATE.
RENDERED : FEBRUARY 23, 2006
NOT TO BE PUBLISHED
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2005-SC-0561-W C
MARTY LEE EASON
V.
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0460-WC
WORKERS' COMPENSATION NO. 01-74304
HORNBACK CABINET COMPANY ;
HONORABLE W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Fifth Edition of the American Medical Association's Guides to the Evaluation
of Permanent Impairment ( Guides ) sets forth two methods for assessing impairment to
the spine as well as criteria for determining the appropriate method . An Administrative
Law Judge (ALJ) determined from the evidence that the Guides require use of the
range of motion (ROM) method where there is a multi-level fusion and based the
claimant's award on an impairment that was assigned under the ROM method. The
Workers' Compensation Board and the Court of Appeals affirmed . Appealing, the
claimant maintains that the Guides require use of the diagnosis-related estimate (DRE)
method on these facts. We affirm .
The claimant sustained a work-related back injury on September 18, 2001 . An
October 23, 2001, MRI revealed disc herniations at L4-5 and L5-S1 and degenerative
disc disease. After conservative treatment failed, he underwent back surgery in
September, 2002, and again in June, 2003. The initial procedure involved an L4-5
discectomy. The latter included a nerve decompression as well as an instrumentation
and fusion at L4-5 and L5-S1 .
The claimant submitted a December 17, 2003, IME report that Dr. Loeb prepared
for his employer's insurance carrier . Dr. Loeb diagnosed degenerative disc disease at
L4-5 and L5-S1, with a solid posterior fusion, and also diagnosed suspected scarring at
the nerve root level, probably at S1 on the right side. He assigned a 13% AMA
impairment using the ROM method .
The claimant also submitted a March 8, 2004, IME report from Dr. Auerbach . He
diagnosed a herniated disc at L5-S1, status post-operative; a discogenic problem at L45; degenerative joint disease at L4-5 and L5-S1 ; and fusion with internal fixation from
L4 through S1, status post-operative . Dr. Auerbach assigned a 23% impairment using
the DRE method.
In a supplemental report dated April 3, 2004, Dr. Loeb took issue with Dr.
Auerbach's use of the DRE method. He characterized it as "incorrect" and "based on
one level of correction ." Dr. Loeb explained that the claimant had undergone a multi
level correction, which requires use of the ROM method .
In a supplemental report dated April 23, 2004, Dr. Auerbach disagreed .
Referring to page 379 of the Guides , Dr. Auerbach explained that he found the DRE
method to be "more reasonable and particularly appropriate in this case" because the
claimant sustained a distinct injury . Although he acknowledged that "one could argue
that you could use the range of motion method," he did not testify that this was a case
where the Guides permitted the use of either method and directed the evaluator to
assign the greater of the two impairments .
Rejecting Dr. Auerbach's interpretation, the AU determined that page 379 of the
Guides (Section 15 .2) requires the ROM method to be used where there is a multi-level
fusion . Therefore, the ALJ based the claimant's award on the 13% impairment that Dr.
Loeb assigned using the ROM method. After making additional findings, the ALJ
enhanced the benefit under KRS 342 .730(1)(c)1 and 3.
Section 15.2 of the Fifth Edition of the Guides , pages 379-81, is entitled
"Determining the Appropriate Method for Assessment." It states, in pertinent part, as
follows :
Spinal impairment rating is performed using one of two methods :
the diagnosis-related estimate (DRE) or range-of-motion (ROM)
method.
The DRE method is the principal methodology used to evaluate an
individual who has had a distinct injury. When the cause of
impairment is not easily determined and if the impairment can be
well characterized by the DRE method, the evaluator should use
that method . (emphasis original) .
The ROM method is used in several situations:
2 . When there is multilevel involvement in the same spinal region
(eg[.], fractures at multiple levels, disk herniations, or stenosis with
radiculopathy at multiple levels or bilaterally) .
3 . Where there is alteration of motion segment integrity (eg[.],
fusions) at multiple levels in the same spinal region . . . .
In the small number of instances in which the ROM and DRE
methods can both be used, evaluate the individual with both
methods and award the higher rating .
Among other things, Subsection 15 .2a, entitled "Summary of Specific Procedures and
Directions," directs the evaluator to : 1 .) take a careful history; 2 .) consider the
permanency of the impairment ; 3 .) select the region that is primarily involved ; 4.)
determine whether the individual has multilevel involvement or multiple
recurrences/occasions within the same region of the spine and to use the ROM method
"if: . . . c. there is multilevel motion segment alteration (such as a multilevel fusion) in
the same spinal region ;" 5.) "If there is not multilevel involvement or multiple
recurrences/occasions and an injury occurred, determine the proper DRE category ."
Likewise, Figure 15-4, entitled "Spine Impairment Evaluation Process," consists of a
flow chart that directs the evaluator to the ROM method if an injury affects more than a
single level .
The claimant asserts that the AU was presented with two valid impairment
ratings that were determined by different methods. His argument is that KRS
342 .730(1)(b) requires benefits to be based on an impairment determined under the
Guides and that they require the use of a DRE impairment in this situation . He
maintains, therefore, that this was not a case of conflicting medical opinions but a case
where the AU lacked the discretion to choose between the impairments .
An injured worker has the burden to prove every element of his claim, including
his impairment . The proper interpretation of the Guides is a medical question to be
established by expert medical testimony . Kentucky River Enterprises, Inc. v. Elkins,
107 S .W .3d 206 (Ky. 2003). Where the experts differ, the AU must evaluate the
conflicting interpretations and decide which is most persuasive . An AU may consult
the Guides when doing so .
In the present case, the AU consulted the Guides and relied upon Dr. Loeb's
opinion that they require the ROM method to be used where there is a multi-level
fusion . Having reached that conclusion, the ALJ relied upon the only ROM impairment
in evidence . Although Dr. Auerbach's opinion regarding the proper method differed, it
was not the sort of overwhelming evidence that would have compelled a decision in the
claimant's favor. Special Fund v. Francis , 708 S .W .2d 641, 643 (Ky. 1986). In other
words, the decision was reasonable under the evidence and was properly affirmed on
appeal. Id .
The decision of the Court of Appeals is affirmed .
All concur.
COUNSEL FOR APPELLANT :
Ched Jennings
412 Kentucky Home Life Building
239 South Fifth Street
Louisville, KY 40202
COUNSEL FOR APPELLEE,
HORNBACK CABINET COMPANY :
Whitney M . Hannold
Walsh & Hannold, PLLC
6008 Brownsboro Park Blvd ., Suite 111
Louisville, KY 40207
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