FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION
BOARD ACTION NO. WC-15-01480
FOR APPELLANT: Bradly Slutskin Versailles, Kentucky
FOR APPELLEE: Jo Alice Van Nagell Brian W. Davidson
BEFORE: KRAMER, CHIEF JUDGE; D. LAMBERT AND NICKELL, JUDGES.
KRAMER, CHIEF JUDGE.
Administrative Law Judge (ALJ) for the Department of
Workers' Claims entered an award of permanent partial
disability benefits to Christopher Cunningham based in part
upon an injury Cunningham sustained to his right shoulder
while employed by Quad/Graphics, Inc. Cunningham appealed to
the Workers' Compensation Board (Board) because he
believed his award (which was based upon an 8% whole person
impairment rating) was inadequate and based upon insufficient
evidence. The Board affirmed, and this appeal followed.
Finding no error, we likewise affirm.
award of worker's compensation benefits must be based
upon substantial evidence. Wolf Creek Collieries v.
Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). Boiled down,
Cunningham's sole contention on appeal is that the
opinion of the independent medical evaluator who arrived at
the 8% whole person impairment rating--the rating ultimately
utilized by the ALJ in calculating Cunningham's
award--did not qualify as substantial evidence. As to why,
Cunningham points out that the evaluator who rendered the
opinion, Dr. Stacie Grossfeld,  utilized passive range of motion
measurements rather than active range of motion measurements
as part of her overall assessment of the impairment to his
right shoulder. He argues the American Medical
Association's Guides to the Evaluation of Permanent
Impairment, Fifth Edition ("AMA Guides"),
required the evaluation of his right shoulder to be based
only upon active range of motion measurements. As
such, he reasons Dr. Grossfeld effectively disregarded the
AMA Guides, and, consequently, the ALJ had no right to rely
upon her opinion in determining his award.
may not give credence to a physician's impairment rating
if the rating is not based on the AMA Guides. Jones v.
Brasch-Barry Gen. Contractors, 189 S.W.3d 149 (Ky. App.
2006). "[A]ny assessment that disregards the express
terms of the AMA Guides cannot constitute substantial
evidence to support an award of workers' compensation
benefits." Id. at 154.
after considering Dr. Grossfeld's opinion and
accompanying deposition testimony, the ALJ and Board both
concluded that this case is not one where a physician
directly disregarded the AMA Guides in arriving at
an impairment rating. Both concluded this case concerns a
medical expert's permissible interpretation and
application of the AMA Guides. Upon review, we
sure, the provisions of the AMA Guides cited in Dr.
Grossfeld's opinion and at issue in this appeal call for
"active" range of motion measurements derived from
consistency tests. They begin with section 16.4i, which deals
with evaluating shoulder motion impairment. On page 475, with
respect to assessing flexion and extension, the first step of
the evaluation is to "[m]easure the maximum active
shoulder flexion and extension[.]" On page 476, with
respect to assessing abduction and adduction, the first step
is to "[m]easure the maximum active shoulder abduction
and adduction[.]" On page 478, with respect to assessing
internal and external rotation, the first step is to
"[m]easure the maximum active shoulder internal and
external rotation[.]" Lastly, with respect to motor
strength, page 510 of the AMA guides, which is part of
section 16.8c, calls for an assessment of "active range
of motion, " with added factors such as resistance.
the AMA Guides acknowledge that the effectiveness and
accuracy of these kinds of tests are subject to the conscious
or subconscious processes of the individual being evaluated.
For example, in section 16.8c, page 509, the text explains in
Manual muscle testing assesses an individual's ability to
move a joint through a full range of motion against gravity,
or move it against additional resistance applied by the
examiner, and/or hold the joint position against resistance.
Manual muscle testing is subject to the individual's
conscious or unconscious control. Individuals whose
performance is inhibited by pain or fear of pain may not be
good candidates for this testing. Results of strength testing
should be reproducible on different occasions or by two or
more trained observers.
one of the overall rules for evaluation set forth in the AMA