LINDA ROSS V. THREAVE MAIN STUD, ET AL.
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IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : January 25, 2007
NOT TO BE PUBLISHED
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2006-SC-000190-WC
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LINDA ROSS
V.
-1-11-
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-001832-WC
WORKERS' COMPENSATION NO. 04-99906
TH REAVE MAIN STUD;
HONORABLE R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE ;
WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Workers' Compensation Board and the Court of Appeals have affirmed an
Administrative Law Judge's (ALJ's) decision to dismiss the claimant's application for
benefits . Appealing, the claimant continues to maintain that the ALJ erred by relying on
an impairment rating that failed to conform to the standards set forth in the AMA Guides
to the Evaluation of Permanent Impairment ( Guides ). Because the evidence indicates
that the rating was the product of a medically sound interpretation of the Guides , albeit
one that differed from that of the other medical expert, we affirm .
The claimant was an assistant manager of a horse farm. Her duties included the
care and maintenance of thoroughbred horses . This appeal concerns the amount of
impairment caused by the second of two work-related injuries to her right knee .
1
The first injury occurred in February, 2003, when the claimant was struck by a
falling branch from a tree and sustained a fracture to the right tibial plateau . Surgery to
repair the fracture included the placement of hardware. The claimant returned to work
for the same employer. She testified subsequently that before the second injury
occurred she was taking 2 Percocets per day, had stiffness in her knee, and had
regular pain and swelling ; that her ability to walk, squat, and kneel was limited ; and that
she had given up driving.
The second injury occurred on December 13, 2003, when the claimant was
kicked in the right knee by a horse . She did not work thereafter . Her claim alleged that
she was unable to work due to increased pain, swelling, and stiffness in her knee.
In January, 2004, the parties agreed to settle the claim for the first knee injury for
a lump sum of $40, 445.16. It was based on a 3% impairment rating and the buyout of
past and future medical expenses as well as the right to reopen. They litigated the
claim for the second injury.
After receiving emergency treatment for the second knee injury, the claimant
transferred her care to Dr. Wagner, an orthopedist . In a report dated December 29,
2003, Dr. Wagner indicated that diagnostic testing revealed a non-displaced hairline
fracture of the inferior pole of the right patella. He testified subsequently that he
prescribed conservative treatment and that the claimant's condition appeared to
improve. In a letter dated June 23, 2004, Dr. Wagner assigned an 8% impairment
rating that was based entirely upon the pre-existing condition . He explained that the
December, 2003, injury "caused a contusion to an already diseased right knee joint
from her previous surgery from a work-related injury."
The claimant testified that she referred herself to Dr. McEldowney for a second
opinion . A January 28, 2004, report indicates that he took a history of the two injuries
and examined the claimant . He diagnosed post-traumatic arthritis of the right knee due
to the injuries. Noting that the claimant had exhausted conservative treatment with Dr.
Wagner, he thought that she required a total knee replacement . In his opinion, the
December, 2003, injury hastened the need for the procedure .
Dr. Friesen evaluated the claimant on her own behalf in September, 2004. He
reviewed the operative report regarding the first injury. He also reviewed the x-rays
from Dr. Wagner after the second injury . Dr. Friesen diagnosed traumatic arthritis of
the right knee, post bicondylar tibial plateau fracture, post non-displaced fracture of the
inferior pole of the right patella with satisfactory healing . He assigned a 16%
impairment, attributing a 13% impairment to the first injury and a 3% impairment to the
second injury . In his opinion, the claimant should undergo total knee arthroplasty.
Noting that the claimant was functioning until December, 2003, he stated that he
thought the second injury aggravated the pre-existing traumatic arthritis and
accelerated the need for surgery . However, he acknowledged that the claimant's
symptoms before December, 2003, were sufficient to indicate that knee replacement
would probably have been necessary even had the second injury not occurred . He also
acknowledged that the fracture sustained in the second injury had healed and that he
had never seen a patient with a healed, non-displaced fracture to the inferior pole of the
patella require a total knee arthroplasty .
When deposed, Dr. Wagner stated that the second knee injury caused only a
temporary contusion . He thought that the claimant could avoid surgery if she continued
conservative treatment, including anti-inflammatory medication and exercises to
strengthen her quadriceps and improve her range of motion . Dr. Wagner explained that
he thought that Dr. McEldowney's recommendation for reconstructive surgery was not
in the claimant's best interest due to her age . Asked about the impairment rating that
he assigned, Dr. Wagner stated that there was a slight diminution in the articular
surface of the patella due to the first injury and that he had assigned an 8% impairment
to that injury using the Guides . Dr. Wagner acknowledged that Table 17-33 of the
Guides allows a 3% impairment to be assigned for a non-displaced patellar fracture but
stated that he did not assign impairment for the December, 2003, fracture because it
did not involve the articular surface of the patella and did not affect function . He
explained :
[T]hey give you an increased impairment for a patellar
fracture, nondisplaced, and what they mean by that is if it
involves the articular surface, where you would have a stepoff on the undersurface of the patella or the kneecap
involving the articular cartilage.
Asked if the impairment is greater if the fracture is to the articular surface, he explained :
No, if it's on a step-off . Look at your next one down there,
the next one down under the kneecap. But what they're
doing there is basically that guideline involves - that one is
for the articular surface, because the next one down gives
you a higher percentage if the articular cartilage has a stepoff, and that's another reason why I don't think she would
qualify for that.
Dr. Wagner insisted upon further questioning that although a literal reading of Table 1733 would appear to permit a 3% impairment for the type of fracture that the claimant
sustained in December, 2003, that is not what the Guides intended . He explained that,
when read as a whole, the table indicates that impairment is assigned only for patellar
fractures that involve the joint surface. The claimant's did not.
Persuaded by Dr. Wagner's testimony, the ALJ determined that the claimant had
received appropriate medical treatment for the December, 2003, injury and that she had
failed prove that it caused more than a temporary exacerbation of the February, 2003,
injury. However, any further claim regarding that injury must be dismissed because she
had settled the claim, waived the right to reopen, and waived the right to future medical
expenses .
In Kentucky River Enterprises, Inc. v. Elkins, 107 S .W .3d 206, 210 (Ky. 2003),
we explained that "the proper interpretation of the Guides and the proper assessment
of an impairment rating are medical questions ." Contrary to the claimant's assertion,
this is not a case such as Jones v. Brasch-Barry General Contractors , 189 S .W .3d 149
(Ky. App. 2006), in which a physician acknowledged that the injured worker fell within
the "strict definition" of one category of impairment but placed him in the next higher
category, explaining only that the Guides are no more than a guide when assigning
impairment. In the present case, Dr. Wagner also explained that certain things must be
inferred from what is stated in the Guides and gave a medically sound reason for
refusing to assign a 3% impairment based on the December, 2003, fracture. Although
Dr. Friesen did assign the 3% impairment, he was not asked to address Dr. Wagner's
rationale for refusing to do so. Because the evidence revealed no more than a
difference of medical opinion regarding the proper interpretation of the Guides and the
most accurate impairment under the Guides , the ALJ was free to choose the expert
upon whom to rely.
The decision of the Court of Appeals is affirmed .
Cunningham, McAnulty, Minton, and Noble, J .J., concur . Schroder, J ., dissents
by separate opinion in which Lambert, C .J ., and Scott, J., join .
COUNSEL FOR APPELLANT,
LINDA ROSS :
Bradly Slutskin
131 Morgan Street
Versailles, KY 40383
COUNSEL FOR APPELLEE,
THREAVE MAIN STUD:
Walter A. Ward
Donald C. Walton
Clark and Ward, PLLC
World Trade Center
333 W . Main Street, Suite 1100
Lexington, KY 40507
RENDERED : January 25, 2007
NOT TO BE PUBLISHED
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2006-SC-000190-WC
LINDA ROSS
APPELLANT
APPEAL FROM COURT OF APPEALS
2005-CA-001832-WC
WORKERS' COMPENSATION NO. 04-99906
V.
THREAVE MAIN STUD;
HONORABLE R. SCOTT BORDERS,
ADMINISTRATIVE LAW JUDGE ;
WORKERS' COMPENSATION BOARD
APPELLEES
DISSENTING OPINION BY JUSTICE SCHRODER
I would vacate and remand to reconsider disability in light of Jones v. BraschBarry General Contractors , 189 S .W .3d 149 (Ky. App. 2006) . The doctor is ignoring, the
AMA Guidelines.
Lambert, C.J ., and Scott, J., join in this dissent .
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