DAIRY QUEEN V. SHIRLEY NOE, ET AL
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. f' PURSUANT TO THE RULES OF
CIVIL PR OCED URE PROMUL GATED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITYINANY OTHER
CASH' INANY COURT OF THIS STA TE.
RENDERED : SEPTEMBER 21, 2006
NOT TO BE PUBLISHED
~ix~rc~e Caurf of
2005-SC-0938-WC
DAIRY QUEEN
V
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-0524-WC
WORKERS' COMPENSATION NO. 03-88169
SHIRLEY NOE ;
HONORABLE RICHARD M. JOINER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The AMA Guides to the Evaluation of Permanent Impairment (Guides) ranked
impairments due to mental and behavioral disorders into five classes and equated each
class with a range of percentage impairments until 1988, when the authors
discontinued the use of percentages . Since 1996, KRS 342.730(1)(b) has based partial
disability awards on a percentage of impairment as determined under the latest edition
of the Guides. Noting that KRS 342 .0011(1) continued to view certain psychological
and psychiatric conditions as being injuries, the court determined in Knott County
Nursing Home v. Wallen , 74 S.W.3d 706, 710 (Ky. 2002), that an Administrative Law
Judge (ALJ) had the authority to translate a Class 1-5 impairment into a percentage,
using the latest edition of the Guides that equated them.
In the present case, an AU relied on testimony from a psychologist (Dr. Grand)
that the claimant's mental disorder caused a "moderate" impairment that approximated
a 25-29% impairment under the Fourth Edition of the Guides . Although Dr. Grand did
not state an impairment class, the range of percentages came within Class 3 under the
last edition of the Guides that equated classes of impairment and percentages. Based
on this evidence, the AU found that the disorder caused a 25% impairment. The
Workers' Compensation Board affirmed the decision, and the Court of Appeals affirmed
the Board .
Appealing, the employer asserts that under Kentucky River Enterprises, Inc. v.
Elkins , 107 S .W.3d 206 (Ky. 2003), the proper interpretation of the Guides and the
proper assessment of impairment are medical questions . Therefore, only a medical
expert may translate a psychologist's use of the word "moderate" into an AMA
impairment class and then translate the class into .an impairment rating. Emphasizing
that the Fourth and Fifth editions of the Guides use classes of impairment rather than
percentages, the employer also asserts that Dr. Grand must have used some other,
unstated, standard when assigning a range of percentages to the claimant's "moderate"
impairment . Therefore, his testimony was not competent evidence upon which the AU
could properly rely.
Having concluded that a psychologist is a medical expert regarding psychological
impairment; that the Guides have equated Class 3 and "moderate" impairment at all
relevant times; that the range of percentages that Dr. Grand assigned was within the
range for a moderate impairment under the latest issue of the Guides that equated
classes of impairment with percentages; and that the AU did no more than interpret Dr.
Grand's testimony, we affirm .
The claimant sustained a work-related back injury. She alleged that it caused
her to be depressed and sought benefits for both a mental and a physical injury . The
parties submitted evidence from two experts regarding the mental injury.
The claimant submitted a Form 107-P and accompanying narrative report from
Dr. Grand, who interviewed her and conducted psychological testing . Dr. Grand
reported that she presented with clear and acute depression that was consistent with a
major depressive episode of moderate severity. Her scores on the various tests
indicated that she was neither feigning nor exaggerating her symptoms . The Form 107P indicated that Dr. Grand diagnosed major depressive disorder, recurrent, moderate
and that he related the condition to the injury . It also indicated that the condition was
not due to the arousal of a pre-existing condition or congenital abnormality and that the
claimant had no pre-existing, active psychological impairment . Indicating that he used
Chapter 14 of the most recent edition of the Guides, Dr . Grand assigned a 25-29%
impairment. The narrative portion of Dr. Grand's report stated that the claimant's
"moderate" impairment approximated a 25-29% impairment under the Fourth Edition of
the Guides .
Dr. Cooley, a psychiatrist, evaluated the claimant for the employer. Like Dr.
Grand, he conducted psychological testing and reported that the pattern of her
responses indicated an honest reporting of her symptoms . In his opinion, however, the
claimant suffered from chronic pain syndrome but had no psychiatric diagnosis or
psychiatric impairment.
The ALJ determined that the back injury caused an 8% impairment and that Dr.
Grand's report appeared to be a better assessment of the claimant's psychological
condition than Dr. Cooley's . Relying on Dr. Grand, the ALJ found that the physical
injury proximately caused a psychological condition, producing a 25% impairment . The
claimant received partial disability benefits for her physical and mental injuries based on
a 31 % combined impairment.
KRS 342.0011(32) considers a psychologist to be a "physician" for the purposes
of Chapter 342 ; therefore, a psychologist is a proper medical expert regarding the
evaluation of impairment due to mental disorders .
In Knott County Nursing Home v. Wallen, su ra, the court determined that
although Chapter 342 required use of the latest edition of the Guides and although the
Guides had not used percentage impairments for psychological conditions since 1988,
the legislature clearly intended for certain harmful psychological changes to continue to
be compensable . Affirming decisions that upheld an ALJ's finding of 25% impairment,
the court determined that the finding was adequately supported by evidence of Class 3
impairment under the latest edition of the Guides and evidence of a 25% impairment,
which was within the range for a Class 3 impairment under the latest edition of the
Guides that equated classes of impairment with percentages. In other words, the ALJ
had the authority to translate the 25% impairment to which the physician testified into a
25% impairment under the latest available edition of the Guides.
The court pointed out in Caldwell Tanks v. Roark, 104 S.W .3d 753 (Ky. 2003),
that although interpreting the Guides and measuring impairment require medical
expertise, reading a conversion table does not. Likewise, observing that the chapter of
the Guides addressing mental disorders has consistently equated Class 3 with
moderate impairment does not require medical expertise . The Fourth Edition of the
Guides (Chapter 14, page 301) and the Fifth Edition (Chapter 14, page 363) contain
nearly identical tables that list the five impairment classes. Both editions include the
words "moderate impairment" within the title of Class 3 and describe the impairment as
being compatible with some, but not all, useful functioning . Page 301 of the Fourth
Edition explains the rationale for discontinuing the use of percentages in 1988;
however, it also lists the five impairment classes, by description, and includes the
corresponding range of percentages from the latest edition that contained percentages .
Like the tables, the list refers to the third of the five classes as "moderate impairment ."
The range of percentages for "moderate impairment" is 25-50% .
Contrary to the employer's assertion, we are not convinced that the ALJ invaded
the province of the medical experts and interpreted the Guides when determining the
extent of the claimant's impairment. It appears, instead, that the ALJ interpreted Dr.
Grand's repeated use of the term "moderate" to describe the claimant's psychological
impairment as being a reference to Class 3 . Such an interpretation was reasonable
under Chapter 14 of the Guides , and it was consistent with the fact that the range of
percentages that Dr. Grand assigned was within the range for moderate impairment
under the latest edition of the Guides that contained percentage impairments . Under
the circumstances, substantial evidence supported the finding that the claimant's
psychological condition caused a 25% impairment .
The decision of the Court of Appeals is affirmed .
Lambert, C.J ., and Graves, McAnulty, Roach, Scott, and Wintersheimer, JJ .,
concur. Minton, J ., not sitting .
COUNSEL FOR DAIRY QUEEN :
Walter E . Harding
Boehl, Stopher & Graves, LLP
2300 Aegon Center
400 West Market Street
Louisville, KY 40202
COUNSEL FOR SHIRLEY NOE:
Susan Turner Landis
Johnnie Turner
Johnnie L. Turner, PSC
P. O. Box 351
114 South First Street
Harlan, KY 40831
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