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United Parcel Service3/21/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
United Parcel Service (UPS) petitions for our review of an opinion by the Workers' Compensation Board (Board) affirming a decision by an administrative law judge (ALJ) awarding permanent partial disability benefits to Kenneth L. Howard based on a 22% impairment rating pursuant to the Fifth Edition of the AMA Guides. We affirm.
Howard suffered a work-related low back injury on September 28, 1998. He underwent surgery on September 28, 1999.
On May 16, 2001, Howard filed a claim for benefits. Thereafter, an ALJ awarded Howard permanent partial disability benefits based on a 22% impairment rating under the Fifth Edition of the AMA Guides. UPS appealed to the Board, and the Board affirmed the ALJ's award. UPS then filed this petition for review.
The ALJ had the benefit of several evaluations and opinions concerning impairment before rendering his decision. Dr. Don Bryson, Howard's family practitioner, concluded that Howard suffered 65-75% impairment. Dr. Bryson offered no explanation based on AMA Guides as to how he reached the impairment rating.
Dr. Phillip A. Tibbs was the neurosurgeon who performed the surgery on Howard. Dr. Tibbs completed his analysis of Howard's final condition after the Fifth Edition of the AMA Guides took effect. Using the Fifth Edition of the AMA Guides, Dr. Tibbs concluded that Howard suffered 22% impairment as a result of the injury . Further, Dr. Tibbs concluded that this rating was not due in part to the arousal of a pre-existing dormant non-disabling condition nor did he find that Howard suffered from active impairment prior to the injury.
Pursuant to a request by UPS, Dr. Ellen M. Ballard, a specialist in physical and occupational medicine and rehabilitation, provided two figures as to Howard's impairment. Dr. Ballard's first figure, determined after an examination in June 1999 prior to Howard's surgery, indicated 10% impairment. This figure was reached utilizing the Fourth Edition of the AMA Guides, the edition in effect at the time of the examination. The second figure, determined by Dr. Ballard in August 2001 subsequent to Howard's surgery, indicated a 25% impairment. This figure was reached utilizing the Fifth Edition of the AMA Guides, the latest edition available at the time of the second examination.
Dr. Leon H. Ensalada, a specialist in occupational medicine and environmental medicine and pain management, also provided an evaluation of Howard's condition for UPS. In August 2001 Dr. Ensalada concluded that Howard had a 10% impairment as a result of the injury . Dr. Ensalada based his conclusion solely on a review of Howard's medical records. However, despite conducting his review after the effective date of the Fifth Edition of the AMA Guides, Dr. Ensalada reached his figure utilizing the Fourth Edition. Dr. Ensalada also concluded that half of Howard's total impairment was attributed to his prior back injuries.
The relevant statute in connection with UPS's petition for review reads as follows:
For permanent partial disability, sixty-six and two-thirds percent (66-2/3%) of the employee's average weekly wage but not more than seventy-five percent (75%) of the state average weekly wage as determined by KRS 342.740, multiplied by the permanent impairment rating caused by the injury or occupation disease as determined by "Guides to the Evaluation of Permanent Impairment," American Medical Association, latest edition available. KRS 342.730(1)(b).
Pursuant to 803 KAR 25:010 Section 1(9), the "latest edition available" is defined as follows:
"Latest available edition" means that edition o
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