No. 08-98349. RHONDA GAIL BUSH PETITIONER VS. KENTUCKY RIVER MEDICAL CENTER HAZARD ARH PAIN MANAGEMENT CENTER DR. BALLARD WRIGHT and HON. LAWRENCE F. SMITH,.

• Case Date: January 20, 2012
• Court: Kentucky

Kentucky Workers Compensation 2012. No. 08-98349. RHONDA GAIL BUSH PETITIONER VS. KENTUCKY RIVER MEDICAL CENTER HAZARD ARH PAIN MANAGEMENT CENTER DR. BALLARD WRIGHT and HON. LAWRENCE F. SMITH, RHONDA GAIL BUSH PETITIONER VS. KENTUCKY RIVER MEDICAL CENTER HAZARD ARH PAIN MANAGEMENT CENTER DR. BALLARD WRIGHT and HON. LAWRENCE F. SMITH, ADMINISTRATIVE LAW JUDGE RESPONDENTS OPINION ENTERED:January 20, 2012CLAIM NO. 200898349APPEAL FROM HON. LAWRENCE F. SMITH ADMINISTRATIVE LAW JUDGEOPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING * * * * * *BEFORE: ALVEY, Chairman; STIVERS and SMITH, Members.STIVERS, Member. Rhonda Gail Bush ("Bush") seeks review of a decision rendered February 11, 2011, by Hon. Lawrence F. Smith, Administrative Law Judge ("ALJ"), awarding permanent partial disability ("PPD") benefits and medical benefits against Hazard ARH ("ARH"). Bush also appeals from the May 2, 2011, order denying her petition for reconsideration. Bush's August 3, 2009, Form 101 alleges on January 9, 2008, she was injured while an employee of ARH when she "stepped on matt [sic] and it slid and spinned and [sic] fell on concrete." Bush alleged injuries to her knees, right hand, right shoulder, neck, and back. At the time of her alleged injuries, Bush was working for ARH as a registered nurse ("RN"). On November 30, 2009, Bush moved to reopen Claim No. 200700622 in which Hon. Chris Davis, Administrative Law Judge ("ALJ Davis") in a November 15, 2007, opinion, award, and order awarded PPD benefits based on a 5% impairment rating as a result of a low back injury sustained on June 9, 2005, while working for Kentucky River Medical Center ("Kentucky River"). Her motion to reopen asserted Bush had suffered further occupational disability and a worsening of her physical condition to the extent she was permanently occupationally disabled. Bush's motion to reopen was sustained by Hon. R. Scott Borders, Acting Chief Administrative Law Judge ("ALJ Borders") by order dated January 8, 2010, to the extent the claim would be assigned to an Administrative Law Judge for further adjudication. By order dated April 29, 2010, the ALJ consolidated both claims. Bush has an associate's degree in nursing and is an RN. As a result of the January 9, 2008, injury, Dr. Phillip A. Tibbs performed surgery on October 17, 2008. Her treating physician is Dr. Peter Wright at the Pain Treatment Center. Throughout the proceedings, Bush maintained she is totally occupationally disabled. After concluding Bush did not sustain a worsening of her condition due to the 2005 work injury, the ALJ determined as follows: Did the plaintiff sustain a work related injury as a result of her January 9, 2008 work injury incident, and, if so what is the extent of any impairment resulting therefrom?

After reviewing the evidence, much of which is summarized above, I am more persuaded by the opinions of Dr. Travis and Dr. Gleis. Recognizing that Dr. Travis only conducted a medical records review, I also note that his conclusions are substantially in agreement with those arrived at by Dr. Gleis. Accordingly, I find that the plaintiff has a 13% whole person impairment, DRE Lumbar Category III, pursuant to the AMA Guides to the Evaluation of Permanent Impairment, 5th Edition. I also recognize the plaintiff's pre-existing 5% impairment awarded in the prior workers compensation claim. Since this is an active pre-existing impairment, I conclude that it must be carved out of the present 13% impairment for the purpose of benefits.

From the evidence presented above, it is clear to this Administrative Law Judge that the plaintiff cannot return to her former work. However, the plaintiff argues that she is now totally occupationally disabled.

KRS 342.0011(11)(c) defines 'permanent total disability' as the condition of an employee who, due to an injury, has a permanent disability rating and has a complete and permanent inability to perform any type of work as the result of an injury. In Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000) the court stated:

An analysis of the factors set forth in KRS 342.0011(11)(b), (11)(c) and (34) clearly requires an individualized determination of what the worker is and is not able to do after recovering from the work injury. Consistent with Osborne v. Johnson, 432 S.W.2d 800, it necessarily includes a consideration of factors such as the worker's post-injury physical, emotional, intellectual, and vocational status and how those factors interact. It also includes a consideration of the likelihood that the particular worker would be able to find work consistently under normal employment conditions. A worker's ability to do so is affected by factors such as whether the individual will be able to work dependably and whether the worker's physical restrictions will interfere with vocational capabilities. The definition of 'work' clearly contemplates that a worker is not required to be homebound in order to be found to be totally occupationally disabled. See Osborne v. Johnson, supra, at 803. (Emphasis ours.)

The plaintiff argues that Dr. Travis has concluded that the plaintiff is now totally occupationally disabled based upon his answers to the December 8, 2010 questionnaire. However this ALJ's reading of the question and its answer leads to a different interpretation. When Dr. Travis answered 'yes' to question #1 was he responding to the first clause of the sentence ('In your opinion is Ms. Bush capable of engaging in substantial gainful activity') or the second ('that is, is she occupationally disabled?')? (emphasis added) Realizing that answering 'yes' to both clauses is inconsistent, this ALJ concludes that Dr. Travis's answer indicated that the plaintiff was capable of engaging in substantial gainful employment. This opinion

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