No. 00-74170 (2002). Fultz Construction v. Boggs.

• Case Date: March 27, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-74170 (2002). Fultz Construction v. Boggs FULTZ CONSTRUCTION, INC. PETITIONER vs. TIMOTHY BOGGS; HON. RICHARD H. CAMPBELL, JR., ADMINISTRATIVE LAW JUDGE and HON. BONNIE KITTINGER, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: March 27, 2002CLAIM NO. 00-74170 APPEAL FROM HON. BONNIE KITTINGER, ADMINISTRATIVE LAW JUDGE AFFIRMING IN PART AND REMANDING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. GARDNER, Member. Petitioner, Fultz Construction, Inc. (Fultz), appeals from a decision of Hon. Bonnie C. Kittinger, Administrative Law Judge (ALJ), awarding the respondent, Timothy Boggs (Boggs), permanent partial disability benefits based upon a 16% functional impairment rating. On appeal, Fultz makes a number of related arguments but generally contends the award of benefits is not supported by substantial evidence. Fultz also argues the ALJ abused her discretion in refusing to order a university evaluation. Boggs filed an application for resolution of injury claim on June 7, 2001, alleging a work-related injury to his right knee. The only issues on appeal are directed to the sufficiency of the medical testimony and we will limit our summary of the evidence and analysis accordingly. The medical evidence in this claim comes by way of the reports of Dr. James Templin, Dr. Michael M. Best and Dr. Leon H. Ensalada. Dr. Templin examined Boggs on April 4, 2001, and after receiving an appropriate history and performing a physical examination, diagnosed 1) chronic right knee pain, 2) S/P right knee arthroscopic surgery with lateral meniscal repair using bionic meniscal darts, and 3) chronic right knee weakness. Dr. Templin addressed impairment as follows: 1. Using the most recent AMA Guides to the Evaluation of Permanent Impairment, the patient's permanent whole body impairment is 16%. 2. Chapter and Tables utilized to arrive at impairment rating for injuries other than spinal injuries: IMPAIRMENT DUE TO UNILATERAL LEG MUSCLE ATROPHY: A 3% impairment to the whole man due to 2.5 cm. of thigh muscle atrophy of the right thigh (table 17-6, page 530). CRITERIA FOR GRADES OF MUSCLE FUNCTION OF THE LOWER EXTREMITY: A Grade IV due to active movement against gravity with some resistance (table 17-7, page 531). IMPAIRMENT DUE TO LOWER EXTREMITY MUSCLE WASTING: A Grade III impairment for retained active flexion of the right knee is equal to a 7% impairment to the whole man (table 17-8, page 532). IMPAIRMENT ESTIMATES FOR CERTAIN LOWER EXTREMITY IMPAIRMENTS: A 1% impairment to the whole man due to partial medial meniscectomy (table 17-33, page 546). PAIN: Mr. Boggs completed a formal Pain Related Assessment providing a total pain-related impairment score of 33 (table 18-6, page 584). A total pain-related impairment score of 33 is equal to a 6% impairment to the whole man (table 18-7, page 584). A 3% impairment to the whole man plus a 1% impairment to the whole man plus a 7% impairment to the whole man plus a 6% impairment to the whole man is equal to a 16% impairment to the whole man (combined value charts, page 604). Dr. Best first examined Boggs on February 14, 2001. He received a history of the work-related knee injury, noted that Boggs...