Opinion
NO. 2012-CA-000985-WC
03-01-2013
DEBORAH SPALDING APPELLANT v. LORETTO MOTHERHOUSE; WORKERS' COMPENSATION BOARD; AND HON. WILLIAM RUDLOFF, ADMINISTRATIVE LAW JUDGE APPELLEES
BRIEF FOR APPELLANT: Ben T. Haydon, Jr. Bardstown, Kentucky BRIEF FOR APPELLEE: Katherine M. Banks Prestonsburg, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-11-00365
OPINION
AFFIRMING
BEFORE: MAZE, MOORE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Deborah Spalding brings this appeal from a May 3, 2012, Opinion of the Workers' Compensation Board (Board) affirming an Administrative Law Judge's (ALJ) award of benefits to Spalding based upon a 4 percent whole body permanent impairment rating. We affirm.
On September 22, 2009, Spalding injured her right knee when she tripped on a rug while employed as a dietary aid by Loretto Motherhouse. Prior to her September 22, 2009, injury, the medical evidence established that Spalding had suffered multiple injuries to her right knee and had undergone multiple surgeries to her right knee. In July 2006, Spalding underwent a partial menisectomy and chondroplasty on her right knee, and again in July 2009, Spalding underwent another partial menisectomy and chondroplasty. Spalding was then released to return to work on September 9, 2009, and suffered the instant injury to her right knee only two weeks after returning to work on September 22, 2009. After the September 22, 2009, knee injury, Spalding underwent another partial menisectomy; however, Spalding was unable to return to work due to knee pain and limitations.
Spalding filed a claim for workers' compensation benefits based upon the September 22, 2009, knee injury. The ALJ found that Spalding suffered a 4 percent impairment and apportioned 2 percent due to a noncompensable preexisting active condition. Spalding was dissatisfied with the ALJ's award and sought review with the Board. On May 3, 2012, the Board affirmed the ALJ's award, thus precipitating our review.
As an appellate court, we will only reverse the Board's opinion if it has overlooked or misconstrued the law or flagrantly erred in its evaluation of the evidence causing gross injustice. W. Baptist Hospital v. Kelly, 827 S.W.2d 685 (Ky. 1992). To do so, we must necessarily review the ALJ's opinion. Abbott Laboratories v. Smith, 205 S.W.3d 249 (Ky. App. 2006). It is within the sole province of the ALJ as fact-finder to weigh the credibility and determine the weight of evidence. Id. Moreover, this Court reviews issues of law de novo. Com., ex rel. Stumbo v. Ky. Pub. Serv. Comm'n, 243 S.W.3d 374 (Ky. App. 2007).
Spalding contends the ALJ erred by finding that she suffered a noncompensable preexisting active condition of her right knee. To the contrary, Spalding asserts that any injury or disease of her right knee was a preexisting dormant condition aroused into disability by the September 22, 2009, work injury. In support thereof, Spalding cites to her own testimony that before the September 22, 2009, work injury she suffered no symptoms or impairment due to her right knee condition. In fact, Spalding argues that no evidence of record supports the ALJ's finding that she suffered a preexisting active condition before the September 22, 2009, work injury to her right knee.
The burden of proving the existence of a preexisting condition falls upon the employer. Finley v. DBM Technologies, 217 S.W.3d 261 (Ky. App. 2007). Since Spalding's employer, Loretto Motherhouse, prevailed upon this issue before the ALJ, our review is limited to whether substantial evidence supports the ALJ's finding of a preexisting active condition. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). And, a preexisting condition is considered active if such condition is symptomatic and impairment ratable under the American Medical Association Guidelines prior to the work-related injury. Finley, 217 S.W.3d 261.
In this case, Spalding admits that she suffered a preexisting 1 percent impairment rating to her right knee as the result of a prior 2006 work injury. Thus, Spalding conceded to a preexisting impairment to her right knee. And, although Spalding testified that her right knee was asymptomatic prior to the current September 22, 2009, work injury, there was medical evidence introduced before the ALJ that Spalding's right knee was symptomatic prior to the current work injury on September 22, 2009. In particular, Dr. Gregory Snider testified by deposition as follows:
Dr. [Michael]Sewell's notes indicate continued months and months of struggling, and in fact, the last note he saw her, still had stiffness, and cracking, and popping. Now we don't have any information beyond that. I'm going to say, I'm not on much of a limb here, that within a reasonable degree of medical certainty, those complaints didn't vanish.
. . . .
But what we don't have is documentation from the first surgery that she did emerge from that with a pristine painless problem free knee despite here [sic] testimony. Documentation suggests she was still having stiffness, cracking, popping months after that, and, I think, within a reasonable degree of medical certainty, those symptoms did not vanish. She had a spontaneous recurrence on the second one which supports that assumption, and the second procedure was more extensive, chondroplasty. Depending on how much he did, I mean, he could have shaved down to the surface of the bone and still be a chondroplasty. But, you know, based on my experience with these kinds of knees and those kinds of problems
that recur after her first surgery with lots of symptoms several months later, a second one with spontaneous recurrence and a little more extensive surgery, and then this last seemingly benign episode that happened, I think that the loss of range of motion is something that is a build up over a period of time, and as I said, I think we'd all agree, or maybe we wouldn't, but in my opinion, if she had a fourth episode, let's say she has another partial menisectomy, another chondroplasty, do we expect her range of motion to be even a little bit worse than it is now? I think within a reasonable degree of medical certainty, it probably would be regardless of whether my report is known to exist or not. So that is sort of how I went about performing the assessment.
Consequently, there existed substantial evidence that Spalding's right knee was both symptomatic and received a 1 percent impairment rating prior to the 2009 work injury. The ALJ, therefore, did not err by finding that Spalding suffered a preexisting active condition to her right knee prior to the 2009 work injury.
Spalding next maintains that the ALJ improperly fixed the active impairment rating for her right knee at 2 percent and failed to follow the dictates of Finley, 217 S.W.3d 261. In particular, Spalding argues that the ALJ misconstrued Dr. Gregory Snider's medical opinion as to Spalding's impairment rating:
More specifically, Dr. Snider's report and deposition establish two alternative approaches to determining an impairment rating in this case with two completely different results, and the ALJ has made the error of attempting to mix these two alternative approaches to determining impairment.Spalding's Brief at 14-16. Thus, Spalding argues that the ALJ's impairment rating was flawed because of a misinterpretation of Dr. Snider's medical opinion. For the following reasons, we disagree.
In Dr. Snider's medical report, he determined that Spalding has a 12% impairment rating. Dr. Snider then attributed 4% of the impairment rating to the work injury
that is the subject of this litigation, and 4% to a preexisting active problem, and 4% attributable to arthritis. With this approach it seems perfectly clear that Dr. Snider is offering the opinion that 4% impairment is directly related to the current work injury, and if the ALJ was going to follow this approach from Dr. Snider then the award should have been based on a 4% impairment.
However, on cross-examination Dr. Snider conceded that his 4% impairment rating for a preexisting active condition is not really accurate in that under the AMA Guidelines the preexisting active impairment can only be 1-2%. Dr. Snider explained that Spalding's first 2 knee surgeries were arthroscopic meniscectomies and that an arthroscopic meniscectomy results in a 1% impairment rating according to the Fifth Edition of the AMA Guidelines. The AMA Guidelines clearly indicates that 1% is only applicable to instances where the surgery is completely successful in alleviating symptoms. Dr. Snider further testified that if a second arthroscopic meniscectomy is performed, some physicians interpret the AMA Guidelines to mean that this results in a 1% impairment for each surgery, totaling 2%, while other physicians believe that if an arthroscopic meniscectomy is performed a second time the impairment rating remains at 1%.
After Dr. Snider conceded on cross-examination that any pre-injury impairment would only be 1-2%, he then conceded that the remaining 10% of his impairment rating would then have been attributable to the work injury that is the subject of this litigation and the arousal of the previously dormant degenerative osteoarthritis into disabling reality. Therefore, the bottom line to Dr. Snider's 12% impairment rating is that at least 10% of it is directly related to the current work injury and the arousal of the dormant condition.
ALJ Frasier chose to reject this cross-examination testimony from Dr. Snider and instead followed Dr. Snider's approach of apportioning the 12% impairment rating as set forth in his original narrative report, resulting in a 4% impairment rating attributable to the
present work injury. Then ALJ Frasier made a significant error by making a "double reduction" by finding that since Dr. Snider apportioned 4% to the current work injury and on cross-examination said that 2% was pre-existing active, then the impairment rating attributable to the work injury to 2%. In fact, ALJ Frasier cut Dr. Snider's 4% impairment rating in half, and that is how he calculated the award.
Spalding submits that this error by ALJ Frasier shows he failed to properly consider the testimony of Dr. Snider and that ALJ Frasier erroneously attempted to mix these alternative methods in determining impairment in this case, with the result being that he only awarded half of what he should have according to Dr. Snider's report.
It is well-settled that "[t]he proper interpretation of the [American Medical Association] Guides and the proper assessment of impairment are medical questions." Lanter v. Ky. State Police, 171 S.W.3d 45, 52 (Ky. 2005). When the medical evidence is conflicting upon a medical issue or question, the ALJ, as fact-finder, is vested with sole authority to judge credibility of such conflicting medical evidence. Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615 (Ky. 2004).
In the case sub judice, the medical evidence upon the issue of Spalding's impairment rating was conflicting. In its order, the ALJ found Dr. Snider's testimony credible and adopted his 4 percent whole body impairment rating due to Spalding's surgeries and attributed 2 percent to a noncompensable active preexisting condition.
Dr. Gregory Snider also assessed an additional 8 percent impairment rating due to Deborah Spalding's reduced range of motion. However, the Administrative Law Judge viewed the range of motion tests as not reliable and declined to assess any impairment based upon same.
In his deposition, Dr. Snider explained his medical opinion as to Spalding's impairment rating:
A. Well, based on the exam as presented, there's going to be a partial menisectomy. Now, according to the tables in the AMA Guides, if you do partial medial and partial lateral menisectomies, they assign four percent whole person impairment.Thus, Dr. Snider stated that the 4 percent impairment rating was based in part upon Spalding's prior surgeries and in part upon Spalding's most recent surgery related to the work injury of September 22, 2009. Dr. Snider opined that a partial menisectomy performed on one side of the right knee justified a 2 percent impairment; however, as both sides of Spalding's right knee had partial menisectomies, he assigned a 4 percent total impairment rating. And, as the prior surgeries were on one side of Spalding's right knee and the most recent surgery was on the other side of the right knee, Dr. Snider assigned 2 percent of the 4 percent impairment rating as attributed to a preexisting active condition. Although the ALJ did not completely adopt Dr. Snider's opinion as to Spalding's impairment, we cannot say that the ALJ's misconstrued Dr. Snider's assessment of Spalding's impairment rating. Additionally, we are convinced that the ALJ properly applied Finley, 217 S.W.3d 361, in finding a 4 percent whole body impairment with 2 percent attributed to a noncompensable active preexisting condition.
Q. I'm going to stop you there, okay?
A. Yeah.
Q. Is that four percent, is that - - let me double-check something. Is that from the last surgery, the four percent where he did the medial and lateral menisectomy? Because we have three surgeries we're dealing with.
A. That's right. And the AMA Guides, and as perfect as we all know it is, does not give us guidance. Basically what they say is, if you do a partial menisectomy on one side, it's one percent - -
Q. Whole person impairment?
A. - - whole person impairment. If you go back, and you say you trim a way a little bit more at a later procedure, they don't say that it's another one percent.
Q. They still call it a one percent?
A. It's one percent. So if you have one percent from an old procedure, and you have another little
trimming, is it another additional percent, or is it you already had your one percent? They don't make that very clear. I think traditionally, probably people get the percent. If you do a partial on both sides, medial and lateral that is, two different meniscus, they assign four. Again, they don't make it clear whether the prior one percent - - or the prior one percent and another one percent, they don't make that entirely clear. We know that she hasn't had a total menisectomy on either side, so as she presented, she had partial menisectomy done in three phases on one of the meniscus, and then a partial meniscus, as far as I know, from only the last procedure on the other side. But she pretty clearly fits into the partial medial and lateral category at four percent.
In sum, we hold that the Board properly affirmed the ALJ's award.
For the foregoing reasons, the Opinion of the Workers' Compensation Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Ben T. Haydon, Jr.
Bardstown, Kentucky
BRIEF FOR APPELLEE: Katherine M. Banks
Prestonsburg, Kentucky