PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-08-73193
The opinion of the court was delivered by: Lambert, Judge:
RENDERED: APRIL 19, 2013; 10:00 A.M.
AFFIRMING ** ** ** ** ** BEFORE: KELLER,*fn1 LAMBERT, AND MOORE, JUDGES.
Kevin A. Watkins has petitioned this Court for review of the July 30, 2012, opinion of the Workers' Compensation Board (the Board) vacating in part the opinion, award, and order of the Administrative Law Judge (the ALJ) and remanding the case to the ALJ for further findings related to the 20% impairment rating assigned by Dr. Colin Looney. Watkins contends that the Board exceeded its authority in making inferences from the evidence and erroneously directed the ALJ to perform an analysis of the American Medical Association (AMA) Guides. We disagree with Watkins that the Board acted erroneously or exceeded its authority; hence, we affirm the Board's decision.
Watkins is currently a thirty-nine year old resident of Bowling Green, Kentucky. He has two years of technical college education. Watkins began work for Kobe Aluminum in 2006 as a maintenance technician and alleged that he injured his low back, left hip, and left leg in a 2008 incident when he was lifting a lid on a water tank. He alleged that he aggravated this condition in 2010 when he was working on a press machine. Watkins sought treatment after both incidents, and stopped working after the 2010 incident when he was terminated for missing work.
Because the issue in this case turns on the medical opinion of Watkins' treating orthopedic surgeon, Dr. Looney, we shall confine our remarks regarding the medical evidence to his records. Dr. Looney performed a hip arthroscopy in November 2010 and noted that Watkins continued to have persistent pain following the surgery. In his final medical report dated May 6, 2011, Dr. Looney stated:
The patient has significant hip pathology which will certainly be activity limiting. My hope is with this procedure we can buy him about three to four years before we have to proceed toward arthroplasty. I suspect that we can get this and he is in agreement, but nonetheless he has significant changes throughout his hip and he has a labral tear as well. What I have suggested is at this [point] that we have reached our impairment rating and to conclude the postoperative evaluation with an impairment rating. I also suggested that he should at this point avoid any work that involves bending, squatting, ladders, picking up objects heavier than 20 pounds, repetitive deep hip flexion as I think this will aggravate his condition. A more sedentary job would be appropriate for him and I have recommended this. We have talked about vocational training, but it does not sound like we have made much headway in this regard.
Because he is from Kentucky, we will use the Fifth Edition of the AMA Guides to Permanent Impairment and based on the information in this edition I made my assessment of impairment based on page 529 of the Guide to Evaluation of Permanent Impairment, Fifth
Edition. This was largely due to a lower limb impairment due to gait derangement as well as early arthritis. His impairment rating of the whole person is 20 percent. The early arthritic change would result in an impairment of 3 percent of whole person and that is according to table 17.3 noted on page 527, but [due to] the gait derangement a higher rating is given based on table 17.5 where he has significant gait disturbance and pain secondary to his hip. This also takes into account as hip continues to deteriorate he may need a total hip arthroplasty in the future. Based on this, I have arrived at a whole person impairment of 20 percent.
Throughout the proceedings before the ALJ, Kobe Aluminum disputed that Watkins met his burden of establishing evidence of impairment as determined by the Fifth Edition of the AMA Guides because Dr. Looney's 20% whole body impairment rating was not consistent with the AMA Guides. Kobe Aluminum contended that there was no evidence that Dr. Looney or any physician required Watkins to use an assistive device, such as a cane or crutch, which is required under Table 17-5 of the AMA Guides.
In the opinion, award and order, the ALJ relied on the medical reports of several medical experts, including Dr. Looney, to find that Watkins had incurred a permanent injury to his left hip in 2008. The ALJ stated that he had "considered all of the Defendant's contrary arguments on causation and impairment" and noted that "[t]he Defendant argued that the impairment rating assigned by the treating physician, Dr. Looney, was too high, but its other evaluator, Dr. Stanton, provided no alternative in a case where impairment clearly results from injury; he curiously ignored the prospect of impairment from the surgery for the work related labral tear." The ALJ then awarded Watkins permanent partial disability benefits based on a permanent disability rating of 20%, as Dr. Looney assigned.
Kobe Aluminum filed a petition for reconsideration, requesting the ALJ to correct an error in the opinion in that the ALJ characterized its argument related to Dr. Looney's impairment as "too high" when it in reality argued that the rating was not as determined by the AMA Guides. The ALJ denied Kobe ...