No. 00-86006 (2002). Professional Care v. Watson.

• Case Date: April 24, 2002
• Court: Kentucky

Kentucky Workers Compensation 2002. No. 00-86006 (2002). Professional Care v. Watson PROFESSIONAL CARE PETITIONER vs. SANDRA WATSON and HON. RICHARD H. CAMPBELL, JR., ADMINISTRATIVE LAW JUDGE RESPONDENTSOPINION ENTERED:April 24, 2002CLAIM NOS. 00-86006 and 99-69216APPEAL FROM HON. RICHARD H. CAMPBELL, JR., ADMINISTRATIVE LAW JUDGE AFFIRMING * * * * * * BEFORE: LOVAN, Chairman, STANLEY and GARDNER, Members.STANLEY, Member. Professional Care appeals from an opinion and award rendered November 19, 2001, by Hon. Richard H. Campbell, Jr., Administrative Law Judge ("ALJ"), granting the respondent, Sandra Watson ("Watson"), benefits based upon a 9% permanent partial disability rating as enhanced by the 1.5 modifier provided in KRS 342.730(1)(c)1. Professional Care also appeals from an order issued December 19, 2001 by the ALJ, overruling its petition for reconsideration. ALJ Campbell, in reaching his ultimate determination, relies upon the treatment notes and the Form 107 medical report from Watson's treating physician, Dr. Eric Norsworthy. Watson is a certified nursing assistant. It is undisputed that on August 14, 1999 and February 19, 2000, Watson sustained work-related injuries to her low back while in Professional Care's employ. For purposes of this claim, Dr. Norsworthy assessed Watson as suffering from a 9% functional impairment to her body as a whole, allegedly based upon the AMA Guides. However, nowhere in his records does Dr. Norsworthy identify which edition of the AMA Guides he utilized. Moreover, in his January 4, 2001 Form 107 medical report, citing to chapter and table, Dr. Norsworthy expressly references Chapter "one," Tables 50, 51, and 52 which, according to Professional Care, is not compatible with any known chapter in any edition of the AMA Guides pertaining to spinal injuries. The ALJ, in electing to rely upon Norsworthy's AMA rating as the basis for his decision, acknowledges that Dr. Norsworthy's references do not correspond to the correct chapter and tables of the AMA Guides for the assessment of impairment attributable to the spine. However, based upon his own independent review of the Fifth Edition of the AMA Guides, the ALJ determined that Dr. Norsworthy's assessment does correspond to similar ratings found in Chapter 15 of the AMA Guides, at pages 405-410. As a result, the ALJ concluded that Dr. Norsworthy's alleged AMA assessment was sufficient for purposes of granting of an award. On appeal, in light of the above fact-finding, Professional Care charges that the ALJ abused his discretion. Professional Care asserts that Dr. Norsworthy's AMA rating "fabricates a reference to a [sic] AMA chapter and table which undisputedly are non-existent." Professional Care generally argues that it was improper for the ALJ "to breathe life into the deficient report by stating the ratings assigned can be found `at page 405-410.'" Professional Care also takes issue with the report alleging that it contains an improper history, no measurements, and is not based upon objective medical findings, thereby charging that the Form 107 medical report of Dr. Norsworthy is "statutorily deficient" and does not rise to the level of substantial evidence. The petitioner further alleges that this section addresses the Range of Motion Model rather than the DRE Model. Finally, Professional Care argues that it was improper for the ALJ to rely on the Fifth Edition of the AMA Guides, given the fact that Norsworthy's Form 107 medical report was prepared on January 4, 2001, and the Commissioner did not certify the Fifth Edition of the AMA Guides as readily available for use until March 1, 2001, pursuant to 803 KAR 25:010E(9). Consequently, Professional Care...