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Thornton v. Volt Services Group6/16/2005
's income benefit. Persuaded that the claimant lacked the physical capacity to return to the type of work he performed at the time of his injury, the ALJ enhanced his benefit by a factor of 1.5. Based on an average weekly wage of $260.68, the claimant received a temporary total disability benefit of $172.79 from May 31, 2000, until July 2, 2002, followed by a permanent income benefit of $9.78 per week for 425 weeks.
Appealing, the claimant maintained that Dr. Guarnaschelli's impairment rating was not supported by his own findings on physical examination or by the criteria for DRE Category II. Furthermore, his report failed to mention the herniated disc at L5-S1 or right leg symptoms. The claimant asserted that the evidence of herniated discs and of radiculopathy in both legs warranted a DRE Category III impairment.
The Board's majority found it impossible to determine from Dr. Guarnaschelli's report whether he was asked to consider or did consider the L5-S1 herniation and associated symptoms. The majority thought it reasonable for the AU to conclude that Dr. Guarnaschelli assigned the 5% DRE impairment for the L4-5 disc bulge because his report referred only to that level. Furthermore, it was consistent with the 5% impairment Dr. Lach assigned to the bulging disc under the Range of Motion model.
The majority noted that Dr. Lach was the only physician to testify concerning the L5-S1 herniation on the right and the right-sided symptoms and that his findings were documented by two MRI's. His uncontradicted opinion was that the claimant continued to experience some radiculopathy on the right side and that the condition warranted an impairment rating. Noting that the Range of Motion model permitted a 7% impairment for a herniated disc and that DRE lumbar Category II (Table 15-3) allowed a 5-8% impairment even where radiculopathy has resolved following conservative treatment, the majority concluded that the AU erred by failing to find an impairment for the condition based solely on the fact that the right leg condition had resolved sufficiently that surgery became unnecessary. Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc., 618 S.W.2d 184 (Ky. App. 1981). Stating that Dr. Lach assigned the same combined impairment under both models, the majority concluded that evidence compelled an award based on a combined impairment of 12%.
KRS 342.730(1)(b) bases the amount of an income benefit for partial disability on the injured worker's impairment as determined under the standards set forth in the AMA Guides. Thus, the claimant bore the burden of proving that the injury caused both an L5-S1 herniation and L4-5 disc bulge and of proving the amount of impairment that the Guides would authorize. The proper interpretation of the Guides with regard to orthopedic injuries is a complex matter that requires medical expertise. This is particularly true when the experts assign impairments using different models or more than one model. See Thomas v. United Parcel Service, 58 S.W.3d 455 (Ky. 2001). When medical experts differ concerning the proper application of the Guides and an injured worker's impairment rating, it is the ALJ's function to weigh the conflicting evidence and to decide which is more persuasive. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985). When medical evidence is uncontradicted, the ALJ may not disregard it. See Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc., supra. If an ALJ finds against the party with the burden of proof, their burden on appeal is to show that the finding was unreasonable because the favorable evidence was so overwhelming that it compelled a favorable finding. Special Fund v. Francis, 708 S.W.2d 641, 643
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