Mizkan America, Inc. v. Mack Dykes ( 2023 )

RENDERED: SEPTEMBER 1, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0622-WC
MIZKAN AMERICA, INC. APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-20-61494
MACK DYKES; HONORABLE
STEPHANIE KINNEY,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, DIXON, AND ECKERLE, JUDGES.
COMBS, JUDGE: This is an appeal from a decision of the Workers’
Compensation Board (the Board). The Appellant, Mizkan America, Inc. (Mizkan),
contends that the Board erred in affirming the decision of the Administrative Law
Judge (ALJ) awarding permanent partial disability (PPD) benefits, arguing that it
was based upon an impairment rating which fails to comply with the AMA Guides
to the Evaluation of Permanent Impairment, Fifth Edition (AMA Guides). Finding
no error after our review, we affirm.
On December 23, 2021, the Appellee, Mack Dykes (Dykes), filed an
Application for Resolution of Injury Claim/Form 101 against his employer,
Mizkan. Dykes alleged an October 9, 2020, injury to his head, left hip, and back.1
The evidence was conflicting. Dykes filed the report of Dr. Tim
Wilson, who conducted an independent medical examination (IME) on Dykes’s
behalf. History reflects that Dykes reported being injured at work on October 9,
2020. The head and hip resolved, but his back pain worsened and required
treatment. Furthermore, Dykes had had a preexisting lumbar surgery in 2014
performed by Dr. Cannon.
With respect to the October 9, 2020, work accident, Dr. Wilson
diagnosed “a worsening of a preexisting L5-S1 disc herniation with a prominent
right paracentral component that was a change from the previous MRI.” Dr.
Wilson assigned a total 13% whole person impairment based upon Table 15-3,
page 384, of the AMA Guides. He explained that Dykes had “a preexisting
impairment based upon his prior back surgery using the range of motion [ROM]
method with a surgically treated disk lesion without residual signs or symptoms
1
Dykes subsequently amended his claim to include a psychological injury, which is not at issue
on appeal.
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which results in an 8% whole person impairment.” Dr. Wilson subtracted Dykes’s
“8% preexisting impairment from his 13% current impairment” in order to arrive at
the 5% whole person impairment, which he attributed to the October 9, 2020, work
injury.
Mizkan filed the report of Dr. Thomas O’Brien, who conducted an
IME on its behalf. Dr. O’Brien diagnosed “minor buttock contusions (bruises)” as
a result of the subject work injury and opined that Dykes “retains a 0% permanent
partial disability as a result of the minor self-limited contusions he sustained
10/09/2020.” Mizkan also filed a supplemental report from Dr. O’Brien in which
he took issue with Dr. Wilson’s impairment rating because it “‘mixed and
matched’ the Range of Motion Method and the DRE [Diagnosis-Related Estimate]
method to arrive at his impairment. This methodology does not follow . . . the
AMA Guides, Fifth Edition.” According to Dr. O’Brien, “Mr. Dykes has a pre-
existing 13% permanent partial impairment to the whole person using Table 15-3
(384) of the AMA Guides (DRE Category III).” His current impairment is
unchanged.” (Emphasis added.)
On December 5, 2022, the ALJ rendered an Opinion, Award, and
Order as follows:
Dr. O’Brien concluded Dykes did not retain any
permanent impairment due to the work injury. However,
Dr. Wilson attributed 5% permanent impairment due to
the work injury.
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Mizkan argues the ALJ is “legally precluded” from
assessing impairment for the physical injury. Essentially,
Mizkan argues Dr. Wilson’s assessment of impairment is
not in accordance with the AMA Guides. This ALJ
reviewed Dr. Wilson’s impairment rating and it appears
to be a reasonable assessment considering Dykes’
increased objective lumbar findings. Thus, this ALJ
finds Dykes retains 5% permanent impairment due to the
work injury. Also, this ALJ finds Dr. Wilson’s rating is
grounded in the AMA Guides per Jones v. Brasch-Barry
General Contractors, 189 S.W.3d 149 (Ky. 2006).
Mizkan petitioned for reconsideration and argued that the ALJ erred
in awarding PPD benefits based upon Dr. Wilson’s opinion.
By Order rendered on December 22, 2022, the ALJ denied Mizkan’s
petition. The ALJ explained that Plumley v. Kroger, Inc., 557 S.W.3d 905 (Ky.
2018), holds that “strict adherence to the Guides is not required, only general
conformity with them. Dr. Wilson clearly stated that his rating was issued per the
5th Ed. AMA Guides. Thus, his assessment was grounded in the Guides, which is
all that is required.”
Mizkan appealed to the Board, which affirmed by Opinion entered on
April 26, 2023, as follows:
Here, Dr. Wilson stated Dykes’ current impairment
rating, based on the AMA Guides utilizing Table 15-3 on
p. 384 is 13%. He noted a history of herniated disc with
associated radiculopathy. Dr. O’Brien also assessed a
13% whole person impairment rating. Where the two
physicians differ is whether Dykes suffered any work-
related impairment. . . .
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...
Fundamentally, Dr. Wilson believes Dykes
suffered additional injury from the work event . . . . Dr.
O’Brien believed the work event caused a minor buttock
contusion.
“The proper interpretation of the Guides and the proper
assessment of an impairment rating are medical
questions.” Plumley v. Kroger, Inc., supra. . . .
An ALJ cannot utilize an impairment rating expressed in
a medical opinion that is not based on the AMA Guides,
however strict adherence to the AMA Guides is not
required. Plumley v. Kroger, Inc., supra. The essential
point is that assigning an impairment rating must be left
to the physicians. The authority to select an impairment
rating assigned by an expert medical witness rests with
the ALJ. Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky.
2001); [Kentucky Revised Statutes] KRS 342.0011.
Here, the two physicians expressed conflicting
opinions regarding the degree of injury and the proper
method to be utilized in assessing an impairment rating.
Dr. Wilson explained he used the AMA Guides in
assessing the impairment rating and described the
changes he observed to Dykes’ lumbar condition. The
impairment rating found by the ALJ is supported by
substantial evidence.
On appeal, Mizkan contends that the Board erred in affirming the
ALJ’s award of PPD benefits based upon Dr. Wilson’s impairment rating, alleging
that it failed to conform with the AMA Guides.2 Mizkan essentially reargues its
2
We conclude that the issue is sufficiently preserved. As noted in the Introduction section of the
ALJ’s Opinion, Award, and Order, the issues preserved for adjudication include “proper use of
AMA Guides . . . .”
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case before us. The standard of our review on appeal is well settled. “The
function of further review of the [Workers’ Compensation Board] in the Court of
Appeals is to correct the Board only where [this] Court perceives 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.” Western
Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
We perceive no such error. Plumley, supra, upon which the Board
and the ALJ relied, holds that strict adherence to the AMA Guides is not required:
[T]he Court of Appeals [explained] in Brasch-Barry . . .
“Under our law, the AMA Guides are an integral tool for
assessing a claimant’s disability rating and monetary
award. So to be useful for the fact-finder, a physician’s
opinion must be grounded in the AMA Guides . . . .”
To be grounded in the Guides is not to require a
strict adherence to the Guides, but rather a general
conformity with them.
Plumley, 557 S.W.3d at 912 (italics original) (footnote omitted).
We agree with the Board’s analysis. The evidence was in conflict.
As was her prerogative, the ALJ chose to rely upon Dr. Wilson, whose opinion
constitutes substantial evidence to support the award.
Accordingly, we affirm the Opinion of the Workers’ Compensation
Board.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE MACK
DYKES:
Joel E. Aubrey
Louisville, Kentucky Timothy J. Wilson
Lexington, Kentucky
Christine M. Haunsz
Louisville, Kentucky
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