TRACY SCOTT TOLER, PETITIONER
v.
OLDHAM COUNTY FISCAL COURT and HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE RESPONDENTS
Claim No. 201882397
Kentucky Workers Compensation
Commonwealth Of Kentucky Workers’ Compensation Board
February 12, 2021
OPINION WITHDRAWN: February 22, 2021.
OPINION RE-ENTERED: February 22, 2021.
APPEAL
FROM HON. JONATHAN R. WEATHERBY, ADMINISTRATIVE LAW JUDGE.
COUNSEL FOR PETITIONER: HON BRUCE G ANDERSON, LMS.
COUNSEL FOR RESPONDENT: HON THOMAS FERRERI, LMS.
ADMINISTRATIVE LAW JUDGE: HON JONATHAN R WEATHERBY, LMS.
BEFORE: ALVEY, Chairman, STIVERS and BORDERS, Members.
OPINION
STIVERS, Member.
Tracy
Scott Toler (“Toler”) appeals from the September
20, 2020, Opinion and Order and the October 14, 2020, Order
of Hon. Jonathan Weatherby, Administrative Law Judge
(“ALJ”). In the September 20, 2020, decision, the
ALJ awarded Toler permanent partial disability
(“PPD”) benefits based upon a 4% impairment
rating assessed by Dr. Christopher Brigham and medical
benefits for his work-related left knee injury.
On
appeal, Toler sets forth two arguments. First, he asserts Dr.
Brigham is not a “physician” as defined by KRS
342.0011(32); therefore, his opinions do not constitute
substantial evidence. Toler also asserts Dr. Brigham never
examined Toler which, as claimed by Toler, is required by the
5
th Edition of the American Medical Association,
Guides to the Evaluation of Permanent Impairment
(“AMA Guides”) before a physician can
render a pain rating assessment. He maintains Dr. Craig
Roberts is the only physician who is qualified to proffer
such an opinion, as he is the only physician who conducted a
physical examination of Toler.
BACKGROUND
The
Form 101, filed on January 7, 2020, alleges Toler sustained
work-related left knee injury while in the employ of Oldham
County Fiscal Court (“Oldham County”) on January
16, 2018, in the following manner: “Collided with
another officer who stopped while running during SWAT
training.”
Oldham
County introduced the May 6, 2020, report of Dr. Brigham,
whose Physician Index Number is 802A. Dr. Brigham’s
medical report reflects he is licensed to practice medicine
in Hawaii, Maine, and California. The report indicates Dr.
Brigham conducted a medical records review and provided the
following clinical summary:
In summary, this 52-year-old police officer sustained an
injury to his left knee on January 16, 2018. There is no
history of prior problems.
On April 20, 2018, he underwent a partial medial and lateral
meniscectomy. He had been involved in physical therapy before
and after the surgery.
As of August 7, 2018, he returned to regular work with no
restrictions. At that time, he was reported to be doing very
well with minimal intermittent irritation over the posterior
lateral aspect of the knee, and with tightness of the
hamstring tendons. The patient had a pain level of
1/10.
On December 5, 2018, when evaluated by Craig Roberts, MD, Mr.
Toler reported some changes in his activities, e.g., he used
to be able to run a 7.5-minute mile and was then only able to
do a 10-minute mile. He had some knee pain, generally a
3/10. It was mostly occasional in the anterior and was
sharp. (Emphasis added).
Dr.
Brigham diagnosed the following: “1. Left knee meniscal
disease a. S/p partial medial and lateral meniscectomies,
April 30, 2018.” The following additional diagnoses are
listed in Dr. Brigham’s report:
1.Left knee chondromalacia
2.Overweight (BMI 27.6)
3.Hypercholesterolemia
4.Migraine headaches
5.Low back pain, history of
6.S/p unrelated surgery
a. Vasectomy
In
support of his impairment rating, Dr. Brigham opined as
follows: “According to Table 17-33, Impairment
Estimates for Certain Lower Extremity Impairments
(5
th ed., 546-547), for partial medial and lateral
meniscectomies, there is 4% whole person permanent
impairment.” Regarding an additional impairment for
pain, Dr. Brigham opined, in pertinent...
