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Jones v. Brasch-Barry General Contractors11/24/2004
REVERSING
Jeff Jones seeks review of a decision of the Workers' Compensation Board that reversed and remanded the earlier opinion of an Administrative Law Judge. The question we are asked to address is whether the Board properly determined that the ALJ's findings were not supported by substantial evidence and, therefore, were clearly erroneous. But a failure to preserve this issue for appellate review prevents us from reviewing the evidence supporting the ALJ's factual findings. Since Brasch-Berry General Contractors failed to file a petition for reconsideration of the ALJ's factual findings, the Board erred as a matter of law when it reversed the ALJ based upon an unpreserved issue. So we must reverse the Board.
We address the facts of this case briefly. Jones was employed by Brasch-Berry for several years. On April 14, 2000, he was helping to unload a tractor-trailer when a box weighing approximately 90-pounds slipped out of the trailer. In his attempt to catch the box before it could fall on a co-worker, Jones suffered a back injury .
Although Jones did not immediately seek medical attention, his pain intensified; and his supervisor took him to a chiropractor the following week. The chiropractor eventually recommended Jones to a neurologist who, on August 10, 2000, performed back surgery. Jones's surgery included a two-level decompressive laminectomy and bilateral discectomy.
During this time, Jones was also being treated by Dr. Gary Reasor, a pain management specialist. Based on the AMA Guidelines and his own personal evaluation, Dr. Reasor assessed Jones with a 20 percent - 23 percent impairment rating, along with an additional 3 percent impairment to account for the level of pain Jones was experiencing. Dr. Reasor stated that Jones's total impairment should be assessed at 26 percent, giving him a "Category IV" impairment rating.
Two other physicians also assessed an impairment rating for Jones. Dr. John Guarnaschelli, the physician who performed Jones's back surgery, gave Jones a 10 percent, Category III impairment rating. Likewise, Dr. Robert A. Jacob examined Jones at the request of Brasch-Berry. Dr. Jacob also assessed Jones with a 10 percent, Category III, impairment rating.
The ALJ adopted the assessment made by Dr. Reasor, and found Jones to have a 26 percent, Category IV, impairment rating. In making this determination, the ALJ stated:
Despite persistent and skillful cross examination by Defendant, Dr. Reasor steadfastly maintained that Plaintiff's permanent impairment was 26%. He insisted that the AMA Guides are only that, guidelines, not final authority. The ALJ, as a finder of fact, must depend on interpretation of the Guides by a medical professional. Based on Dr. Reasor's medical reports and deposition testimony, Plaintiff is found to have a 26% permanent impairment as the result of his work injury on April 14, 2000.
Brasch-Berry appealed, claiming there was not substantial evidence to support the ALJ's findings of fact. The Board agreed and reversed and remanded the decision of the ALJ. In its holding, the Board stated:
It is clear . . . that Dr. Reasor's deter mination to place Jones within Category IV rather than Category III of the DRE Model is a reflection of a personal desired outcome for the numerical percentage rather than an expert medical application of the defini tions reflected within the categories of impairment. Dr. Reasor ultimately conceded that Jones fit within the "strict defini tion" of a Category III impairment.
This appeal follows.
We note that if we were to address the merits of this case, we would be inclined to accep
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