RENDERED: MAY 20, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0522-WC
T-RAD NORTH AMERICA APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-17-85772
SHANNON BROWN; HONORABLE GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: T-Rad North America appeals the Workers’ Compensation
Board’s April 9, 2021 order affirming the administrative law judge’s (ALJ)
decision to award Shannon Brown permanent total disability benefits. T-Rad
argues the Board and ALJ erred when they relied on testimony of a physician who did not rely on the 5th Edition American Medical Association Guides to the
Evaluation of Permanent Impairment (AMA Guides). Finding no error, we affirm.
BACKGROUND
Brown operated a leak testing machine on a production line for T-
Rad. We have not been directed in the record to a clear description of the machine
she was operating when she was injured. We can surmise, however, that its
operation required her to reach inside to place equipment being tested, and to
remove her arms and hands before the machine operated. The machine was
apparently designed and built with safety doors and an indicator light that, when
operable, would alert her to remove her arms and hands before the machine
conducted its test. However, the safety doors and indicator light were removed
before the day of Brown’s accident.
On that day, March 2, 2017, Brown failed to remove her arms and
hands before the machine began operation, resulting in her hand being trapped by
the machine for over twenty minutes. She was rushed to the emergency room after
her hand was set free.
She was evaluated and found to have no broken bones, but significant
swelling. Dr. Frederick Robbe performed trigger releases of her right thumb and
index finger. After that, Brown returned to light-duty work, but never fully
-2- recovered from her injuries. In fact, her injuries began to worsen. Because she
was unable to perform her job duties, T-Rad terminated her employment.
After termination, Brown worked at a factory for a week, through a
temporary service agency, but was let go from that job when her hands began to
swell. Shortly thereafter, she found another job, but she was terminated due to
excessive absences attributable to her injuries.
In 2018, Brown was evaluated by Dr. Thomas Gabriel at T-Rad’s
request. According to Dr. Gabriel, Brown had chronic right arm pain, and
probable somatoform disorder/somatoform conversion disorder. But he did not
believe she met the criteria for diagnosing complex regional pain syndrome
(CRPS). He assessed Brown’s injuries with an 11% impairment rating under the
AMA Guides.
A year later, Brown was evaluated by Dr. Jules Barefoot who
diagnosed her with a right arm/hand crushing injury, right thumb/index traumatic
trigger finger, CRPS, and status-post right thumb and index finger releases. He
assessed a 39% impairment rating under the AMA Guides, but testified the Guides
were developed more than twenty years ago and are outdated. Diagnosing her
independently from the Guides, he concluded Brown would be unable to ever work
again.
-3- Shortly thereafter, Brown filed for temporary total disability (TTD)
benefits claiming total disability. At the hearing, the parties found TTD benefits
were paid from April 21, 2017, to July 17, 2017, and again from February 1, 2018,
to May 9, 2018, at a rate of $566 per week. Brown’s average weekly wage was
$848.96. Her medical expenses totaled $22,695.35. Following the hearing, the
ALJ issued an opinion finding Brown sustained compensable bilateral CRPS due
to her work-related injury. The opinion also concluded the AMA Guides do not
control the determination of a diagnosis; rather, they are solely utilized in
determining the appropriate impairment rating.
The ALJ found Dr. Barefoot’s diagnosis reliable and found Brown
permanently, totally disabled. The ALJ subsequently found permanent partial
disability (PPD) benefits were suspended by any periods TTD benefits were paid.
T-Rad appealed to the Workers’ Compensation Board which affirmed the ALJ.
This appeal followed.
STANDARD OF REVIEW
Our review of an opinion of the Workers’ Compensation Board is
limited. We only reverse the Board’s opinion when “the Board has overlooked or
misconstrued controlling statutes or precedent, or committed an error in assessing
the evidence so flagrant as to cause gross injustice.” W. Baptist Hospital v. Kelly,
827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board’s opinion, we look to
-4- the ALJ’s opinion. The ALJ’s findings of fact will not be disturbed if supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). And, the ALJ, as fact-finder, possesses the discretion to judge the
credibility of testimony and weight of evidence. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Our review proceeds accordingly.
ANALYSIS
T-Rad argues the ALJ overlooked prevailing law and erred by finding
Dr. Barefoot’s diagnosis and impairment rating consistent with AMA Guides. The
ALJ and the Board stated that the 5th Edition of the AMA Guides to the Evaluation
of Permanent Impairment are just guides in the evaluation and are not to be relied
upon in diagnosing conditions.
In Plumley v. Kroger, Inc., our Supreme Court determined that
physicians were entitled to conclude for themselves which methods should be used
to evaluate their patients. 557 S.W.3d 905 (Ky. 2018). Said the Court:
To be grounded in the [AMA] Guides is not to require a strict adherence to the [AMA] Guides, but rather a general conformity with them. We also note that the Court of Appeals in Brasch-Barry[1] seemingly also did not require strict adherence to the [AMA] Guides: “An ALJ cannot choose to give credence to an opinion of a physician assigning an impairment rating that is not based upon the AMA Guides.” An opinion that is based upon the [AMA] Guides is different from one that strictly adheres to the [AMA] Guides.
1 Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149 (Ky. App. 2006).
-5- Id. at 912-13 (footnotes omitted).
We are not persuaded by T-Rad’s argument that the ALJ’s reliance on
Dr. Barefoot’s assessment was error because it deviated from the AMA Guides.
Partial disability payments factor in “the permanent impairment rating . . . as
determined by the ‘Guides to the Evaluation of Permanent Impairment,’” Kentucky
Revised Statute (KRS) 342.730(1)(b), which KRS 342.0011(35) defines as being,
the “percentage of whole body impairment” that an injury causes “as determined
by” the latest edition of the Guides.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 20, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-0522-WC
T-RAD NORTH AMERICA APPELLANT
PETITION FOR REVIEW OF A DECISION v. OF THE WORKERS’ COMPENSATION BOARD ACTION NO. WC-17-85772
SHANNON BROWN; HONORABLE GRANT S. ROARK, ADMINISTRATIVE LAW JUDGE; AND WORKERS’ COMPENSATION BOARD APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES.
ACREE, JUDGE: T-Rad North America appeals the Workers’ Compensation
Board’s April 9, 2021 order affirming the administrative law judge’s (ALJ)
decision to award Shannon Brown permanent total disability benefits. T-Rad
argues the Board and ALJ erred when they relied on testimony of a physician who did not rely on the 5th Edition American Medical Association Guides to the
Evaluation of Permanent Impairment (AMA Guides). Finding no error, we affirm.
BACKGROUND
Brown operated a leak testing machine on a production line for T-
Rad. We have not been directed in the record to a clear description of the machine
she was operating when she was injured. We can surmise, however, that its
operation required her to reach inside to place equipment being tested, and to
remove her arms and hands before the machine operated. The machine was
apparently designed and built with safety doors and an indicator light that, when
operable, would alert her to remove her arms and hands before the machine
conducted its test. However, the safety doors and indicator light were removed
before the day of Brown’s accident.
On that day, March 2, 2017, Brown failed to remove her arms and
hands before the machine began operation, resulting in her hand being trapped by
the machine for over twenty minutes. She was rushed to the emergency room after
her hand was set free.
She was evaluated and found to have no broken bones, but significant
swelling. Dr. Frederick Robbe performed trigger releases of her right thumb and
index finger. After that, Brown returned to light-duty work, but never fully
-2- recovered from her injuries. In fact, her injuries began to worsen. Because she
was unable to perform her job duties, T-Rad terminated her employment.
After termination, Brown worked at a factory for a week, through a
temporary service agency, but was let go from that job when her hands began to
swell. Shortly thereafter, she found another job, but she was terminated due to
excessive absences attributable to her injuries.
In 2018, Brown was evaluated by Dr. Thomas Gabriel at T-Rad’s
request. According to Dr. Gabriel, Brown had chronic right arm pain, and
probable somatoform disorder/somatoform conversion disorder. But he did not
believe she met the criteria for diagnosing complex regional pain syndrome
(CRPS). He assessed Brown’s injuries with an 11% impairment rating under the
AMA Guides.
A year later, Brown was evaluated by Dr. Jules Barefoot who
diagnosed her with a right arm/hand crushing injury, right thumb/index traumatic
trigger finger, CRPS, and status-post right thumb and index finger releases. He
assessed a 39% impairment rating under the AMA Guides, but testified the Guides
were developed more than twenty years ago and are outdated. Diagnosing her
independently from the Guides, he concluded Brown would be unable to ever work
again.
-3- Shortly thereafter, Brown filed for temporary total disability (TTD)
benefits claiming total disability. At the hearing, the parties found TTD benefits
were paid from April 21, 2017, to July 17, 2017, and again from February 1, 2018,
to May 9, 2018, at a rate of $566 per week. Brown’s average weekly wage was
$848.96. Her medical expenses totaled $22,695.35. Following the hearing, the
ALJ issued an opinion finding Brown sustained compensable bilateral CRPS due
to her work-related injury. The opinion also concluded the AMA Guides do not
control the determination of a diagnosis; rather, they are solely utilized in
determining the appropriate impairment rating.
The ALJ found Dr. Barefoot’s diagnosis reliable and found Brown
permanently, totally disabled. The ALJ subsequently found permanent partial
disability (PPD) benefits were suspended by any periods TTD benefits were paid.
T-Rad appealed to the Workers’ Compensation Board which affirmed the ALJ.
This appeal followed.
STANDARD OF REVIEW
Our review of an opinion of the Workers’ Compensation Board is
limited. We only reverse the Board’s opinion when “the Board has overlooked or
misconstrued controlling statutes or precedent, or committed an error in assessing
the evidence so flagrant as to cause gross injustice.” W. Baptist Hospital v. Kelly,
827 S.W.2d 685, 687-88 (Ky. 1992). In reviewing the Board’s opinion, we look to
-4- the ALJ’s opinion. The ALJ’s findings of fact will not be disturbed if supported by
substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App.
1984). And, the ALJ, as fact-finder, possesses the discretion to judge the
credibility of testimony and weight of evidence. Paramount Foods, Inc. v.
Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Our review proceeds accordingly.
ANALYSIS
T-Rad argues the ALJ overlooked prevailing law and erred by finding
Dr. Barefoot’s diagnosis and impairment rating consistent with AMA Guides. The
ALJ and the Board stated that the 5th Edition of the AMA Guides to the Evaluation
of Permanent Impairment are just guides in the evaluation and are not to be relied
upon in diagnosing conditions.
In Plumley v. Kroger, Inc., our Supreme Court determined that
physicians were entitled to conclude for themselves which methods should be used
to evaluate their patients. 557 S.W.3d 905 (Ky. 2018). Said the Court:
To be grounded in the [AMA] Guides is not to require a strict adherence to the [AMA] Guides, but rather a general conformity with them. We also note that the Court of Appeals in Brasch-Barry[1] seemingly also did not require strict adherence to the [AMA] Guides: “An ALJ cannot choose to give credence to an opinion of a physician assigning an impairment rating that is not based upon the AMA Guides.” An opinion that is based upon the [AMA] Guides is different from one that strictly adheres to the [AMA] Guides.
1 Jones v. Brasch-Barry General Contractors, 189 S.W.3d 149 (Ky. App. 2006).
-5- Id. at 912-13 (footnotes omitted).
We are not persuaded by T-Rad’s argument that the ALJ’s reliance on
Dr. Barefoot’s assessment was error because it deviated from the AMA Guides.
Partial disability payments factor in “the permanent impairment rating . . . as
determined by the ‘Guides to the Evaluation of Permanent Impairment,’” Kentucky
Revised Statute (KRS) 342.730(1)(b), which KRS 342.0011(35) defines as being,
the “percentage of whole body impairment” that an injury causes “as determined
by” the latest edition of the Guides. However, neither statute finds this factor to be
the equivalency of a physician’s diagnosis. Our jurisprudence treats the two as
separate.
In Tokico (USA), Inc. v. Kelly, the Supreme Court expressed the
position that a diagnosis does not need to conform strictly to the Guides. It stated:
Chapter 1 of the Fifth Edition discusses the Guides’ philosophy, purpose, and appropriate use. Page 11 acknowledges that “some medical syndromes are poorly understood,” that physicians must use clinical judgment when assigning impairment ratings, and that “clinical judgment, combining both the ‘art’ and ‘science’ of medicine, constitutes the essence of medical practice.” Diagnosing what causes impairment and assigning an impairment rating are different matters. Diagnostic criteria stated in the Guides clearly have relevance when judging the credibility of a diagnosis, but Chapter 342 does not require a diagnosis to conform to criteria listed in the Guides.
281 S.W.3d 771, 774-75 (Ky. 2009).
-6- The ALJ must decide the legal significance of conflicting medical
evidence regarding diagnoses and the reviewing court cannot reweigh the facts
leading to the ALJ’s decision on this point. KRS 342.285. The ALJ has sole
discretion in determining the weight, credibility, quality, character, and substance
of evidence and the inference to be drawn from the evidence. Paramount Foods,
695 S.W.2d at 419. The ALJ has the discretion to choose which witnesses and
which testimony to believe. Addington Res., Inc. v. Perkins, 947 S.W.2d 421, 422
(Ky. App. 1997). The ALJ may reject any testimony and believe or disbelieve
various parts of the evidence, regardless of whether it came from the same witness
or the same adversary party’s total proof. Caudill v. Maloney’s Disc. Stores, 560
S.W.2d 15, 16 (Ky. 1977).
Here, the ALJ chose to believe Dr. Barefoot’s analysis of Brown’s
injuries. Dr. Barefoot offered a reasonable explanation for the basis of his
conclusion. Therefore, we cannot be persuaded by T-Rad’s argument that the
Board and the ALJ erred here.
T-Rad also argues the ALJ erred in relying on Dr. Barefoot’s
testimony to make a total disability award. Again, we are not persuaded.
Brown testified she was unable to return to work due to her injuries.
She made multiple attempts to find gainful employment after the injury but was
unsuccessful. There was no evidence showing Brown was able to meet the
-7- demands of her pre-injury work duties. Applying City of Ashland v. Stumbo, 461
S.W.3d 392 (Ky. 2015), the ALJ properly determined she was entitled to a total
disability award. In accordance with City of Ashland, the ALJ undertook a “five-
step analysis” to determine whether a claimant is totally disabled. Id. at 396. The
steps, or factors, the ALJ addressed were: (1) whether the claimant suffered a
work-related injury; (2) what, if any, impairment rating the claimant has; (3) the
permanent disability rating; (4) whether the claimant is able to perform any type of
work; and (5) that the total disability is the result of the work injury. We find no
basis for reversal in the ALJ’s application of this analysis.
Lastly, T-Rad argues the ALJ erred by awarding PPD and PTD
benefits for the same injury. In Dolt & Dew, Inc. v. Smith, this Court said, “[T]he
Board was justified in determining that Smith’s disability, the effects of which
were not fully realized, [was both] permanent and partial so long as he was
afforded work by his employer that he was able to do, proved to be total and
permanent when his employer went out of business and no other work was
available to him in the area’s labor market.” 493 S.W.2d 711, 713 (Ky. 1973).
Here, Brown made multiple attempts to return to work after her injury
but was physically unable to do so. Her disability was not fully realized until she
was unable to perform her last job. The ALJ found Brown was only partially
disabled, but despite her best effort, could not return to work. It was then, and only
-8- then, that the permanency of her disability was realized. Thus, both awards were
necessary.
CONCLUSION
Based on the foregoing, we affirm the Board’s April 9, 2021 order.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Samuel J. Bach James R. Martin II Henderson, Kentucky Lexington, Kentucky
-9-