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Thornton v. Volt Services Group6/16/2005
(Ky. 1986). We are convinced that the claimant met that burden.
The claimant asserted that the injury caused a bulging disc at L4-5 on the left and a herniated disc at L5-S1 on the right. Dr. Lach testified that both conditions were due to the work-related accident and that the claimant continued to experience some radiculopathy. When addressing impairment, he explained that the Range of Motion model accounted for lesions on opposite sides that caused opposite problems. Using the Range of Motion model, he assigned a 7% impairment for the herniated disc and a 5% impairment for the bulging disc, for a combined impairment of 12%. Dr. Lach also stated that the DRE model permitted a 10-13% impairment for a herniated disc and associated radiculopathy under lumbar Category III. He explained that the claimant apparently did not have the associated radicular complaints when he saw Dr. Guarnaschelli, so Dr. Guarnaschelli placed him in Category II. Dr. Lach did not assign an impairment for the bulging disc under the DRE model or state that the model would permit an impairment rating for a bulging disc. Nor did he state that the Guides preferred the use of one model over the other in the present situation.
The questions to which Dr. Guarnaschelli responded were not made part of the record. It may well be that he considered the claimant's entire condition. Nonetheless, it is impossible to determine from his report whether he did so or whether the questions to which he was responding concerned only the left-sided symptoms and their cause. His report refers to radiographic and MRI evidence, but it does so solely in the context of addressing the central and left paracentral disc bulge and the low back, left hip, and left leg pain. It makes no reference whatsoever to an L5-S1 herniation or to any right-sided symptoms. Although Dr. Lach thought that Dr. Guarnaschelli assigned the 5% Category II impairment based upon the herniated disc, the ALJ determined that he assigned it based upon the bulging disc. Neither party has asserted that the finding was erroneous under the Guides. Furthermore, although Dr. Lach did not assign a DRE impairment to the condition, he did assign a 5% impairment under the Range of Motion model. Under the circumstances, the conclusion that Dr. Guarnaschelli assigned the impairment based upon the bulging disc was reasonable under the evidence. It may not be disturbed on appeal. Special Fund v. Francis, supra.
Dr. Lach testified affirmatively that in addition to the bulging disc, the claimant had a herniated disc at L5-S1 on the right side with associated radiculopathy. His report stated that it was caused by the work-related accident and that it warranted a DRE Category III impairment because there was associated radiculopathy or warranted a 7% Range of Motion impairment. His report also indicated that a herniated disc warranted a DRE Category II impairment if radiculopathy had been present but later resolved. Absent the questions to which Dr. Guarnaschelli was responding, absent any reference in his report to the herniated disc or right-sided symptoms, and absent any other indication that he directed his report to the claimant's entire condition, the impairment Dr. Guarnaschelli assigned could not reasonably be viewed as being the product of a difference of opinion regarding the existence of the herniated disc, its cause, or any resulting impairment.
Although the claimant testified that he continued to experience symptoms in both legs, the ALJ was persuaded by the evidence that his right leg problems had resolved to the point that surgery was no longer necessary. Therefore, the ALJ was compelled to rely on Dr. Lach's uncontradicted testimony that a herniated disc wit
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