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DECEMBER 1, 2000; 2:00 p.m. TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1999-CA-002892-WC

GERTRUDE SHAFFER

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-92-09201

LOURDES HOSPITAL; ROBERT L. WHITTAKER, DIRECTOR OF SPECIAL FUND; HON. DONALD G. SMITH, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, JOHNSON, AND KNOPF, JUDGES. This is an appeal from an opinion and order by the

KNOPF, JUDGE:

Workers' Compensation Board (Board) affirming the Administrative Law Judge's (ALJ) dismissal of a claim for income benefits. agree with the Board that the claimant's failure to introduce evidence of an American Medical Association (AMA) impairment rating precluded an award of income benefits for permanent total disability. Hence, we affirm. We

Shaffer, who was employed as a hospital cook, sustained a series of injuries to her back in the course of her employment with Lourdes Hospital. She sustained her first two injuries in Although she received

November 1991 and in February 1992.

medical treatment after these injuries, and she was off work after the first incident, Shaffer did not file a claim at that time. Shaffer asserts that she suffered another injury to her

back on November 13, 1995, while she and a co-worker were lifting a pan of soup. Finally, Shaffer testified that she sustained an

additional injury to her back on August 1, 1996, when a large coworker slipped and fell on Shaffer, elbowing her in the back. She stated that an incident report was filled out but she did not seek medical treatment at that time and she continued to work until May 23, 1997. Shaffer has not worked since that time.

The claim was first heard by an Arbitrator, who dismissed Shaffer's claim due in part to the fact that she did not submit an AMA impairment rating upon which to base a permanent partial disability award. novo review before the ALJ. Shaffer then sought a de

In support of her claim, Shaffer

primarily relied on medical records and the deposition testimony from her treating physician, Dr. Theodore Davies. Dr. Davies

stated that Shaffer's condition was a progression of the degenerative condition which first became symptomatic after the 1991 injury. While he agreed that the 1991 and 1992 injuries

contributed to her condition, Dr. Davies stated that the 1995 and 1996 injuries acted in a cumulative fashion resulting in Shaffer's current low back condition. -2However, Dr. Davies did

not state the disability as a percentage of impairment under the AMA Guides. Based upon the testimony of Dr. Davies, the ALJ concluded that Shaffer was totally occupationally disabled under the principles set forth in Osborne v. Johnson, Ky., 432 S.W.2d 800 (1968) and the 1994 version of KRS 342.730. The ALJ awarded

Shaffer total occupational disability with 50% non-compensable as due to a pre-existing active condition. In the initial appeal to

the Board, Lourdes raised six grounds of error, including that Shaffer's failure to submit an AMA impairment rating into the record should defeat her claim for permanent disability. However, the Board did not directly address this issue. Rather,

the Board concluded that the ALJ's findings were ambiguous with respect to whether Shaffer's injury was due to a specific injury or was the result of cumulative mini-traumas. Consequently, the

Board remanded the matter to the ALJ for further factual findings. On remand, Shaffer filed a motion to be allowed to submit into evidence a 5% impairment rating provided by Dr. Davies. The ALJ denied Shaffer's request. Subsequently, the ALJ

entered an order finding that Shaffer's total occupational disability in the original opinion and award was based upon cumulative mini-traumas. The ALJ found that her condition

manifested itself into disabling reality as of the last date she worked. The ALJ also concluded that under KRS 342.0011(11)(c),

for a finding of total occupational disability, only a disability rating is needed and not an impairment rating. He found that

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under the definition of total disability, the failure to submit an impairment rating under the AMA Guides was not fatal to Shaffer's claim. Therefore, the ALJ concluded that Shaffer has a

disability of 100% even though no impairment rating was given under the AMA Guides. Subsequently, Lourdes filed a petition for reconsideration, arguing that the absence of an AMA impairment rating required that Shaffer's claim be dismissed. Lourdes

contended that the definition of permanent disability rating found in KRS 342.0011(36) means "impairment rating". agreed and dismissed Shaffer's claim in its entirety. Thereafter, the ALJ granted Shaffer's petition for reconsideration and reinstated her award for medical benefits. On appeal to the Board, the Board agreed that the result was harsh, but it concluded that the clear language of the statute required that Shaffer's failure to provide an AMA impairment rating precluded her claim for income benefits. followed. In its January 22, 1999, opinion on the first appeal, the Board's order of remand specifically directed the ALJ to make more specific findings concerning whether Shaffer's injury was due to one specific injury or instead due to cumulative minitraumas. The Board further stated, "Since Shaffer last worked on This appeal The ALJ

May 23, 1997, the date Shaffer's disability became manifest will also determine the impact of her failure to submit an AMA impairment rating into the record. and (36)." See, KRS 342.0011(11), (35)

It is not entirely clear what the Board meant by this

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statement.

Nonetheless, based upon other portions of the

opinion, the Board implied that if Shaffer's disability was the result of discrete injuries, the last of which occurred in August 1996, then any award of income benefits would be governed by the 1994 version of KRS 342.0011 and 342.730. Since that version of

the statutes did not require evidence of a permanent disability rating, the absence of evidence of an AMA impairment rating would not be fatal to her claim. However, if her disability was found

to be the result of a series of cumulative mini-traumas, then her disability manifested itself on the last day of her employment with Lourdes. In that case, the 1996 version of KRS 342.0011

would apply, and Shaffer would be required to present evidence of a permanent disability rating. On remand, the ALJ found that Shaffer's total occupational disability found in the original opinion and award was based upon cumulative mini-traumas. Hence, the disability

manifested itself into disabling reality as of May 23, 1997, and the 1996 version of the Act applies. Shaffer does not dispute

that the 1996 Act applies to her claim, but she still contends that the Board's interpretation of the statutes is unreasonable given the uncontested evidence that she is totally disabled. While an AMA rating is essential to calculate any award of partial disability benefits under KRS 342.730(1)(b), Shaffer correctly asserts that it serves no purpose in calculating income benefits for total disability under KRS 342.730(1)(a). Given the

beneficent purpose of the Workers' Compensation Act, Shaffer contends that it is fundamentally unfair to deny income benefits

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to a totally disabled worker merely because she has failed to submit evidence of an AMA rating. Although Shaffer is correct that an AMA rating is not necessary to calculate an award of income benefits for permanent total disability, we find that her reasoning is inverted. KRS

342.730 sets out the methods for calculating income benefits after a worker is found to have a "permanent partial disability", a "temporary total disability", or a "permanent total disability". The provisions of KRS 342.730 do not apply until

there is a finding of disability which would entitle a worker to receive income benefits. In pertinent part, the definitions of

"permanent partial disability" and "permanent total disability" can be found at KRS 342.0011(11)(b) & (c) as follows: (b) "Permanent partial disability" means the condition of an employee who, due to an injury, has a permanent disability rating but retains the ability to work; and (c) "Permanent total disability" means 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 a result of an injury, . . . The definition of "permanent disability rating" is found at KRS 342.0011(36) and states as follows: "Permanent disability rating" means the permanent impairment rating selected by an arbitrator or administrative law judge times the factor set forth in the table that appears at KRS 342.730(1)(b). Finally, the definition of "permanent impairment rating" is found at KRS 342.0011(35) and states as follows: "Permanent impairment rating" means percentage of whole body impairment caused by the injury or occupational disease as -6-

determined by "Guides to the Evaluation of Permanent Impairment," American Medical Association, latest available edition. As found by the ALJ and by the Board, a finding of either permanent partial disability or permanent total disability requires proof that the employee has a permanent disability rating. A permanent disability rating requires a permanent

impairment rating, which in turn requires evidence of a rating of whole body impairment as determined by the AMA Guides. Thus,

Shaffer was required to present proof of an AMA rating to be eligible to receive income benefits. We agree with the Board

that this is a harsh result considering the other evidence supporting the ALJ's finding that Shaffer is totally occupationally disabled. Nonetheless, the "plain meaning of a

statute cannot be ignored by the courts simply because another interpretation might be considered to state a better policy." ITT Commercial Finance Corp. v. Madisonville Recapping Co., Inc., Ky.App., 793 S.W.2d 849, 852 (1990) (citing Board of Education of Nelson County v. Lawrence, Ky., 375 S.W.2d 830 (1963)). Therefore, we conclude that the ALJ correctly dismissed Shaffer's claim for income benefits for failure to provide an AMA impairment rating. The Board also found that the ALJ did not err when he rejected Shaffer's submission of evidence of an impairment rating on remand. We agree with the Board that the ALJ had broad

discretion to deny Shaffer the opportunity to file additional evidence after the time for taking proof expired. Cornett v. Based

Corbin Materials, Inc., Ky., 807 S.W.2d 56, 59-60 (1991).

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on the record, Shaffer had an ample opportunity to submit this evidence at the appropriate time. Therefore, we cannot find that

the ALJ abused his discretion in denying her motion to submit the evidence later. Accordingly, the November 5, 1999 Opinion and Order by the Workers' Compensation Board affirming the ALJ's dismissal of Shaffer's claim for income benefits is affirmed. JOHNSON, JUDGE, CONCURS. COMBS, JUDGE, DISSENTS BY SEPARATE OPINION. COMBS, JUDGE, DISSENTING: I find that I must dissent. As an AMA rating is needed only for calculation of an award of partial disability payments, it is irrelevant to an award of permanent disability benefits. In this case involving permanent

disability, it is manifestly unfair and irrational to bar recovery based on the absence of an AMA rating. Such an outcome

clearly frustrates and contravenes the beneficent purpose of Workers' Compensation legislation.

BRIEF FOR APPELLANT: Craig Housman Paducah, Kentucky

BRIEF FOR APPELLEE LOURDES HOSPITAL: Daniel S. Stratemeyer Boehl, Stopher & Graves Paducah, Kentucky BRIEF FOR APPELLEE SPECIAL FUND OF KENTUCKY: David R. Allen Frankfort, Kentucky

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