No. 00-76544 (2002). Dept. of Highways v. Caudill.

• Case Date: July 03, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-76544 (2002). Dept. of Highways v. Caudill DEPARTMENT OF HIGHWAYS PETITIONER vs. KELLY CAUDILL and HON. RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED: July 3, 2002CLAIM NO. 00-76544APPEAL FROM HON. RICHARD M. JOINER, ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members. STANLEY, Member. Department of Highways ("Highways") appeals from an opinion and award rendered by Hon. Richard M. Joiner, Administrative Law Judge ("ALJ"), wherein he found Kelly Caudill ("Caudill") to have sustained a 3% impairment rating as a result of a work-related injury. The ALJ further increased Caudill's permanent partial disability benefits by a multiplier of two pursuant to KRS 342.730(1)(c), finding that while Caudill retained the physical capacity to return to the type of work he performed at the time of his injury, his gross weekly wages were less since returning. On appeal, Highways argues the ALJ erred in increasing Caudill's permanent partial disability benefits by a multiplier of two and further argues the award is not supported by objective medical findings as required by KRS 342.0011(1) and (33). Caudill, born August 14, 1971, has a high school education and two years of college. Caudill testified he had worked for Highways for about seven years. At the time of the hearing, he continued to work as a transportation technologist, level one, a position he had held for the past two years. He testified his job required him to perform inspections of construction and bridges, insuring that the work is done within the plans and specifications of the department. Caudill sustained a work injury on July 18, 2000 while inspecting work done by a paving company on U.S. 119. He was the victim of a hit-and-run accident being struck by a car that drove through cones and barrels that had been put in place for safety control. Caudill was hit on his left leg, hip, and wrist. At his hearing, Caudill testified he continues to treat with Dr. Nick Raschella who he has seen since he returned to work following the accident. Caudill sees Dr. Raschella every thirty to sixty days. He is treated with Naprosyn an anti-inflammatory medication; Sclaxin, a muscle relaxer; Neurontin, a nerve medication; and Lortab for pain. According to Caudill, he continues to have lower back and hip pain which occurs when walking, standing or laying flat. He testified he is no longer able to perform his job duties which include moderate lifting. Medical evidence in the record consists of reports or depositions from Dr. James Templin, Dr. Timothy Wagner, and Dr. Joseph Zerga. Dr. Templin examined Caudill on July 27, 2001, at Caudill's attorney's request. His impression was left S1 dysfunction; chronic low back pain and left leg pain syndrome; chronic left wrist pain syndrome; left wrist weakness; history of left wrist sprain; and history of lumbosacral musculoligamentous sprain. Dr. Templin opined the above diagnoses were the result of the work-related injury occurring on July 18, 2001. He assessed a 9% impairment rating pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment ("Guides"), Fifth Edition. He assessed a 6% impairment due to loss of grip strength in the left hand and a 3% impairment based on a formal pain-related assessment. At his deposition, Dr. Templin admitted that the pain complaints are subjective complaints as opposed to objective medical findings such as x-rays. Dr. Templin explained, however, that the complaints were consistent with being hit by a car and having the same complaints of pain from day one. He stated that the diagnoses were based on a combination of history and the physical which was, in part, based on subjective findings. Dr. Templin explained that Caudill filled out a form that was in the Guides and, based upon the completion of that form, the number was obtained for an impairment rating to be provided if the evaluator so desired or felt it appropriate. Dr. Templin then relied on the responses by Caudill in the form to make a determination of a 3% impairment for pain in accordance with the Guides. He further explained that since there was no tool for indicating whether or not a person was having pain, the practitioner had to make determinations based on experience, history provided, physical examination, and consistency of complaints. This is done by following the standardized procedure set out in the Guides. Dr. Timothy Wagner, an orthopedic surgeon, evaluated Caudill on November 8, 2001. He diagnosed a healed contusion of the left hip girdle and a healed left wrist sprain. Dr. Wagner stated Caudill had a normal neurological examination on clinical examination which was corroborated by a normal examination with an MRI scan. Dr. Wagner felt Caudill was at maximum medical improvement and his primary problem was that he was deconditioned and needed to be on an exercise program. He found no impairment regarding the left hip girdle, nor left wrist. Dr. Joseph Zerga evaluated Caudill on November 12, 2001. He found Caudill still had some residual left hip pain, but there was no evidence of specific pathology in his left hip. He found Caudill's left arm and wrist complaints resolved. He saw no indication of any permanent impairment or restrictions. An EMG/NVC...