Opinion
NO. 2017-CA-000917-WC
03-16-2018
FORD MOTOR COMPANY APPELLANT v. J. WARREN THORNSBERRY; HON. STEPHANIE L. KINNEY, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Johanna F. Ellison Scott M. Brown Lexington, Kentucky BRIEF FOR APPELLEE, J. WARREN THORNSBERRY: Ched Jennings Louisville, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. 16-WC-00001 OPINION
AFFIRMING IN PART AND REVERSING IN PART
** ** ** ** **
BEFORE: KRAMER, CHIEF JUDGE; COMBS AND JONES, JUDGES. KRAMER, CHIEF JUDGE: Ford Motor Company appeals from a May 5, 2017 opinion of the Workers' Compensation Board vacating in part and remanding an August 15, 2016 opinion, award, and order of an Administrative Law Judge (ALJ) awarding permanent partial disability benefits to appellee J. Warren Thornsberry. Ford argues the Board erred by: (1) Addressing an issue Thornsberry raised for the first time before the Board, namely, whether a whole person impairment rating (WPI) relied upon by the ALJ and assessed by Dr. Thomas Becherer regarding a pre-existing active impairment to Thornsberry's spine conformed to the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides); (2) concluding the ALJ improperly relied upon Dr. Becherer's WPI because it did not conform to the AMA Guides; and, in light of that conclusion, by (3) vacating the ALJ's separate determination that Thornsberry was not totally disabled within the meaning of the Workers' Compensation Act. For the reasons discussed below, the Board committed no error with respect to the first and second of these points, but we reverse the Board with respect to the third point.
The relevant factual and procedural history of this matter, and most of the pertinent issues presented herein, are accurately set forth in the Board's opinion as follows:
Thornsberry worked on the assembly line at Ford Motor Company ("Ford"). His employment history consists solely of work in the manufacturing industry. Before being hired at Ford in 1992, he worked in production and as a plant manager. Over the course of approximately 18 years at Ford, he performed various jobs. These positions included driving a forklift, working as a feeder on an assembly line and in paint repair.
Thornsberry slowly developed low back pain in 2013, which he attributed to driving the forklift. He reported
his back pain in 2013 to Ford Medical Department ("Ford Medical"), and was diagnosed with a lumbar strain. However, his symptoms never fully resolved and worsened over time. At the suggestion of Dr. Lawrence Simpson of Ford Medical, Thornsberry visited his personal physician, Dr. Nison Abayev. Dr. Abayev ordered a lumbar MRI, which revealed multilevel lumbar degenerative changes with developmentally small canal space, resulting in multilevel lumbar canal stenosis with foraminal compromise from L2 through S1. He ordered physical therapy.
On June 4, 2015, Thornsberry was working as a line feeder when he experienced a sharp stabbing pain in his back while lifting a heavy tote. He was treated by Dr. Charles Sherrard at Ford Medical, who advised Thornsberry to see his personal physician. Thornsberry returned to Dr. Abayev on July 21, 2015 with complaints of low back pain, which had been aggravated by heavy lifting. Dr. Abayev noted decreased range of motion and lumbar radiculopathy at L5. He was taken off work and referred to Dr. Thomas Becherer.
At Dr. Becherer's request, a lumbar MRI was performed on September 2, 2015, which revealed facet changes had developed since the 2013 MRI. Also, the canal stenosis had progressed into significant bilateral recess and neuroforaminal stenosis. Dr. Becherer performed a lumbar laminectomy from L2 through L5 on September 29, 2015. On December 11, 2015, Dr. Becherer released Thornsberry to return to work but opined he would likely need lifelong physical therapy.
Thornsberry returned to work on modified duty on January 29, 2016 but reported pain in his neck, back and legs after prolonged standing. In a letter dated March 25, 2016, Dr. Becherer opined Thornsberry does not have a congenital condition that contributes to his low back symptoms. He placed Thornsberry at maximum medical improvement as of September 29, 2016 and assessed a 12% whole person impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment, 5th Edition ("AMA Guides").
He utilized the diagnosis-related estimate ("DRE") method to reach this impairment rating. Dr. Becherer also attributed 50% of the impairment rating to a pre-existing active condition, which resulted in a 6% work-related impairment.
Dr. James Farrage conducted an independent medical evaluation on February 24, 2016. Dr. Farrage believed Thornsberry was at maximum medical improvement, but recommended a continued home exercise program. Using the range of motion ("ROM") method, Dr. Farrage assessed an 18% whole person impairment. He found no pre-existing condition and attributed the entirety of the impairment rating to the work incident, which had brought Thornsberry's lumbar spondylosis into disabling reality. He opined Thornsberry lacks the physical capacity to return to his pre-injury work, a [sic] recommended a job which avoids prolonged sitting or standing.
Dr. Becherer was provided a copy of Dr. Farrage's report, and was asked whether he agreed with Dr. Farrage's use of the ROM method of impairment assessment. He declined to provide an impairment rating based on the ROM method, indicating he was not trained on that method. Dr. Becherer also reiterated his opinion that 50% of Thornsberry's impairment is due to a pre-existing active condition.
The ALJ first determined Thornsberry injured his low back on June 4, 2014.[] Turning to the issues of extent and pre-existing conditions, the ALJ explained:
Dr. Becherer, Plaintiff's treating neurosurgeon, assessed a 12% permanent impairment rating, using the Lumbar DRE Category III. Dr. Farrage assessed an 18% permanent impairment rating using the ROM method. Dr. Becherer declined to assess iimpairment pursuant to the ROM model as he has not been trained in that
method of assessment. However, Dr. Becherer did not provide any analysis as to whether the DRE model or ROM model was the most appropriate method of assessing impairment in this claim. The ultimate query in this claim involves determining which method of assessing a permanent impairment rating using the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition is most appropriate.
A permanent impairment rating resulting from an injury must be determined by using the AMA Guides. KRS 342.730(1). The proper interpretation of the AMA Guides and the proper assessment of impairment are medical questions solely within the province of medical experts for the purposes of assessing a claimant's disability. Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206, 210 (Ky. 2003); Lanter v. Ky. State Police, 171 S.W.3d 45, 52 (Ky. 2005). To be useful for the fact-finder as competent, substantial evidence, a physician's opinion must be grounded in the AMA Guides, and an ALJ may not give credence to an opinion of a physician assigning a permanent impairment rating that is not based upon the AMA Guides. Kroger Co. v. Jones, 125 S.W.3d 241 (Ky. 2004). In order to ascertain an impairment rating in the assessment of the extent of a claimant's disability rating and monetary award, an ALJ is required to determine whether the impairment rating was based upon the AMA Guides, and is authorized-- though not compelled-- to consult the AMA Guides when determining the weight and credibility to be assigned to the evidence. Caldwell Tanks v. Roark, 104 S.W.3d 753, 756-757 (Ky. 2003).
The AMA Guides state in what instances the ROM method should be implemented to assess impairment. If there is multilevel involvement, then impairment should be calculated using the ROM method. Plaintiff underwent a lumbar laminectomy from L2 through L5, indicating multilevel involvement, making the ROM method the appropriate means to calculate Plaintiff's permanent impairment rating.[] Dr. Farrage is the only physician to assess impairment pursuant to the ROM method, and this ALJ adopts his assessment of an 18% permanent impairment rating.
The burden of proving a claimant has a pre-existing, active disability lies with the defendant/employer. Finley v. DBM Technologies, 217 S.W.3d 261, 265 (Ky. App. 2007). The Court in Finley, supra, noted the Workers' Compensation Board had correctly set forth the law on pre-existing conditions in its Opinion. Specifically, the Board stated, in part, that "[t]o be characterized as active, an underlying pre-existing condition must be symptomatic and impairment ratable pursuant to the AMA Guidelines immediately prior to the occurrence of the work-related injury." Id. at 265. (Emphasis ours.)
Dr. Farrage opined Plaintiff did not have a preexisting active lumbar condition. On the other hand, Dr. Becherer assessed 6% impairment to a preexisting active condition. The ALJ notes Dr. Becherer is Plaintiff's treating neurosurgeon, which therefore places him in a better position to address Plaintiff's preexisting active impairment.
Also, Dr. Becherer is an unbiased physician in this claim. Dr. Becherer noted an onset of low back pain following an extended lay off which failed to ever fully dissipate. This ALJ finds the Defendant has met its burden of proving a preexisting active condition. Consequently, this ALJ finds Plaintiff had a 6% preexisting active impairment, relying on Dr. Becherer. Plaintiff's 6% preexisting active impairment rating is subtracted from 18%, leaving 12% due to the June 4, 201[5], work injury.
The ALJ then determined Thornsberry lacks the physical capacity to return to his pre-injury employment. Analyzing whether Thornsberry is permanently and totally disabled, the ALJ explained:
The ALJ is required to undertake a 5 step analysis in order [sic] determine whether a claimant is permanently and totally disabled. The ALJ must determine whether there has been a work-related injury, what Plaintiff's impairment rating is, and address permanent disability. Finally, the ALJ must determine whether Plaintiff can perform any type of work and that total disability is due to the work injury. Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015).
As set forth above, this ALJ has concluded Plaintiff is left with a 12% impairment rating as a result of the work injury and restrictions/limitations which prevent him from returning to his pre-injury job duties. The ALJ notes Plaintiff is 62 years old with a 12th grade education. Plaintiff is a very articulate and pleasant man. His past employment history is commendable and consists of work as a line feeder, manager, and production worker. He was a long-time employee for the Defendant, and during his tenure with the Defendant he worked in
various capacities. Plaintiff has been issued permanent restrictions, but considering his education and past employment history, this ALJ does not believe Plaintiff is permanently and totally disabled. This ALJ believes Plaintiff does retain the physical capacity to perform some sort of light duty work. As such, this ALJ does not find Plaintiff to be permanently and totally disabled.
As indicated earlier in this opinion, Thornsberry claimed he injured his low back on June 4, 2015. The ALJ's use of "2014" was a typographical error and later corrected.
What the ALJ explained in this portion of her opinion regarding the use of the ROM method in assessing multilevel involvement references, and is explicitly supported by, pp. 381-382 of the AMA Guides.
Subsequently, Thornsberry appealed to the Board. There, as indicated, he argued for the first time that the ALJ had improperly relied upon Dr. Becherer's assignment of a 6% WPI to an active, pre-existing condition to his low back because Dr. Becherer had arrived at that WPI through a methodology that did not conform to what was mandated by the AMA Guides. The Board addressed this argument; and that, in turn, leads to Ford's first contention of error raised in its appeal before this Court: Ford argues the Board exceeded the scope of its authority in addressing this argument because it was unpreserved.
We disagree. The matter of whether an impairment rating has been determined in accordance with the AMA Guides-- as mandated by the Act-- is a question of law. See Brasch-Barry General Contractors v. Jones, 175 S.W.3d 81, 83 (Ky. 2005). And, the Board may sua sponte review a question of law even though it is unpreserved. George Humfleet Mobile Homes v. Christman, 125 S.W.3d 288 (Ky. 2004); Twin Res., LLC v. Workman, 394 S.W.3d 417 (Ky. App. 2013).
Ford's second contention of error regards how the Board addressed Thornsberry's argument that the ALJ erred in apportioning 6% of his total WPI rating to a pre-existing active condition. The Board held:
In determining the extent of Thornsberry's impairment, the ALJ noted Dr. Becherer utilized the DRE method, which is not proper in his situation due to multilevel spinal involvement. Therefore, she relied upon Dr. Farrage's ROM-based impairment rating. Thornsberry agrees this analysis is correct, but argues it was improper to rely upon Dr. Becherer's determination regarding the percentage to apportion to pre-existing impairment. We agree.
It is within an ALJ's discretion to believe or disbelieve various parts of the evidence. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). She may properly rely upon one physician as to impairment rating, but another physician's opinion regarding pre-existing active condition. However, for two reasons, we find no basis which permits the ALJ to "merge" impairment ratings in the manner employed in this case.
The ALJ determined, and Dr. Becherer agreed, his impairment rating was not assessed pursuant to the AMA Guides because he utilized the DRE method for a condition which mandates the ROM method. Therefore, the entirety of Dr. Becherer's impairment rating is unreliable, including the 6% he assessed for pre-existing impairment. As such, the ALJ could not rely upon this or any portion of Dr. Becherer's impairment rating.
For this reason, we must vacate the award of permanent partial disability benefits and remand this claim to the ALJ to reassess the percentage of Thornsberry's impairment to be apportioned to a pre-existing active condition. We emphasize that the ALJ is entitled to believe Dr. Becherer's medical opinion that Thornsberry suffered a pre-existing active condition, and his statement that 50% of his current condition is attributable to that pre-existing active condition.
However, because his impairment rating was not assessed in conformity with the AMA Guides, the 6% impairment rating for pre-existing condition cannot be relied upon.(Emphasis added.)
In other words, the Board determined Dr. Becherer rendered not one, but two alternative impairment ratings attributable to a pre-existing, active impairment to Thornsberry's low back: Either (1) half of a total "12%" WPI rating; or, as italicized above, (2) half of whatever WPI rating the ALJ ultimately decided upon. The Board determined the second of those impairment ratings was legally acceptable. But, the Board determined the first of those impairment ratings was unacceptable and could not have been relied upon because it resulted from Dr. Becherer's disregard of the methodology prescribed by the AMA Guides. As noted, Dr. Becherer utilized the DRE method to assess a condition which mandates the ROM method.
No party takes issue with, and thus we need not address, the Board's determination that the second of Dr. Becherer's impairment ratings could support a finding of a pre-existing, active impairment to Thornsberry's low back and provide an acceptable basis for reducing Thornsberry's overall award of benefits for his low back condition by a factor of one-half. Rather, Ford argues the Board erred in determining that the first of Dr. Becherer's impairment ratings was unacceptable.
We disagree. As indicated, Dr. Becherer arrived at his 12% WPI rating for the condition of Thornsberry's back by utilizing the DRE method-- a method the AMA Guides expressly forbade in this context (i.e., where, as here, the condition he was charged with assessing was characterized by multilevel involvement). Because his 12% WPI rating disregarded the AMA Guides, it cannot qualify as substantial evidence. See Cunningham v. Quad/Graphics, Inc., 522 S.W.3d 204, 205 (Ky. App. 2017). And, if an improperly assessed WPI rating cannot qualify as substantial evidence, it follows that any other WPI rating dependent upon the improperly assessed WPI rating (e.g., a WPI rating purporting, as here, to be half of the improperly assessed WPI rating) likewise cannot qualify as substantial evidence.
The last issue presented in this appeal regards the Board's decision to vacate the ALJ's determination that Thornsberry was ineligible for permanent total disability benefits ("PTD"), and "request" the ALJ to reconsider the issue on remand. The Board explained its reasoning as follows:
Thornsberry also argues the ALJ provided insufficient analysis as to whether he is permanently and totally disabled. In determining whether a claimant is permanently and totally disabled, the ALJ is directed to determine whether a work-related injury occurred, the level of impairment, and the claimant's ability to labor. Ashland v. Stumbo, 461 S.W.3d 392 (Ky. 2015). The ALJ must consider the claimant's post-injury physical, emotional, intellectual and vocational status and how those factors interact. Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 51 (Ky. 2000).
Here, the ALJ discussed Thornsberry's age, education level and past employment history. She also considered his permanent physical restrictions. Earlier in her opinion, in considering whether Thornsberry can return to his pre-injury duties, the ALJ noted his belief that he
could return to his previous job duties as a line feeder in the trim department. This analysis satisfactorily encompasses the considerations set forth in Hamilton. However, because we have vacated the award of permanent partial disability benefits for reassessment of Thornsberry's impairment rating, we request the ALJ to revisit the issue of permanent total disability on remand. It is possible the ALJ may reach the same conclusion, and we direct no particular result. Nonetheless, the analysis of permanent total disability should be conducted with an accurate impairment rating.
With that said, Ford's contention of error regarding this aspect of the Board's opinion largely mirrors the dissenting opinion of Chairman Alvey, one of the Board members who decided this matter:
I respectfully dissent from the directive to re-visit whether Thornsberry is permanently totally disabled. The ALJ performed the appropriate analysis, and determined Thornsberry is partially, not totally disabled. While there may be concern regarding the appropriate impairment rating and carve-out for pre-existing active disability, this does not trigger an additional analysis regarding permanent total disability. As noted by the majority, the ALJ's "analysis satisfactorily encompasses the consideration set forth in Hamilton."
Upon review, we agree the Board erred by directing the ALJ to reconsider the issue of Thornsberry's entitlement to PTD. The Board vacated Thornsberry's award because it found certain evidence the ALJ had utilized in determining the work-related portion of his overall 18% WPI was flawed, and the Board's limited reason for remand was to enable the ALJ to properly determine what part of that 18%, if any, was attributable to nonwork-related impairment.
But, for purposes of determining Thornsberry's entitlement to PTD it is irrelevant whether half or none of Thornsberry's total 18% WPI is attributable to a nonwork-related condition because KRS 342.730(1)(a) specifies that nonwork-related impairment "shall not be considered" when determining whether an individual is totally disabled. Rather, what is necessary for PTD is a finding of disability based upon: (1) An impairment rating due to the work-related injury; and (2) the presence of some or all of the disability factors discussed in Hamilton, 34 S.W.3d 48.
As more fully explained in Roberts Bros. Coal Co. v. Robinson, 113 S.W.3d 181, 182-83 (Ky. 2003),
When enacting the 1996 amendments, the legislature employed different standards for awarding benefits under KRS 342.730(1)(a) and (1)(b). In Ira A. Watson Dept. Store v. Hamilton, Ky., 34 S.W.3d 48 (2000), we explained that although an impairment rating due to the work-related injury is a prerequisite to a finding of total disability under the 1996 Act, some of the Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968), factors also remain relevant to the determination. Thus, awards under KRS 342.730(1)(a) continue to be based upon a finding of disability. In contrast, an award of permanent partial disability under KRS 342.730(1)(b) is based solely on a finding that the injury resulted in a particular AMA impairment rating, with the amount of disability being determined by statute. In other words, KRS 342.730(1)(a) requires the ALJ to determine the worker's disability, while KRS 342.730(1)(b) requires the ALJ to determine the worker's impairment. Impairment and disability are not synonymous.
Here, the ALJ determined-- and Ford does not contest-- that Thornsberry was entitled to an impairment rating due to his work-related injury. The ALJ further determined-- in light of the analysis mandated by Hamilton-- that Thornsberry retained the capacity to perform work despite any impairment-ratable condition affecting him. For purposes of determining Thornsberry's eligibility for PTD, the ALJ was required to do nothing more than that. Accordingly, the Board had no appropriate basis to "request the ALJ to revisit the issue[.]"
In light of the foregoing, we REVERSE the Board IN PART to the extent that it directed the ALJ to reconsider Thornsberry's entitlement to PTD on remand. In all other respects, we AFFIRM.
ALL CONCUR BRIEF FOR APPELLANT: Johanna F. Ellison
Scott M. Brown
Lexington, Kentucky BRIEF FOR APPELLEE, J.
WARREN THORNSBERRY: Ched Jennings
Louisville, Kentucky