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DECEMBER 5, 2003; 2:00 p.m. NOT TO BE PUBLISHED

Commonwealth Of Kentucky Court of Appeals
NO. 2003-CA-000354-WC

WAL-MART

APPELLANT

v.

PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD ACTION NO. WC-02-00373

DOROTHY BENNETT, HON. J. KEVIN KING, ALJ, and KENTUCKY WORKERS'COMPENSATION BOARD

APPELLEES

OPINION AFFIRMING ** ** ** ** **

BEFORE:

BUCKINGHAM, COMBS, AND TACKETT, JUDGES.

BUCKINGHAM, JUDGE: Wal-Mart petitions for our review of an opinion by the Workers' Compensation Board (Board) affirming an award given by an administrative law judge (ALJ) granting Dorothy Bennett temporary total disability (TTD) benefits from January 31, 2002, through April 30, 2002. Wal-Mart contests the

award of benefits beyond March 4, 2002, the date it claims Bennett attained maximum medical improvement (MMI). We affirm.

Bennett sustained a prior injury to her back in 1992, and she settled a claim against Wal-Mart for that injury for an 11% permanent partial disability. As a result of that injury,

Bennett continued to suffer from low back pain and sought treatment from Dr. Harry Lockstadt. On January 31, 2002, she

tripped and fell while taking out the trash at Wal-Mart, and she alleged an injury to her right shoulder and low back. Bennett

did not return to work after the injury and quit her employment with Wal-Mart on April 9, 2002. Bennett filed a claim for benefits, and a hearing was held before an ALJ. The ALJ considered testimony by Bennett,

reviewed Bennett's deposition, and reviewed medical records from Dr. Lockstadt, Dr. Humphrey, and Dr. Snider. The ALJ concluded

that Bennett had suffered an injury on the date in question. However, the ALJ found no impairment as a result of the injury and did not award permanent disability benefits. On the issue of TTD, the ALJ found Bennett to be temporarily totally disabled through April 30, 2002, the date Dr. Humphrey examined her. The Board affirmed the ALJ's award Wal-Mart's petition for

of TTD benefits through that date. review followed.

The sole issue on appeal is whether the Board erred in affirming the ALJ's award of benefits through April 30, 2002. Bennett argues that TTD benefits should not have been awarded

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beyond March 4, 2002, the date Dr. Lockstadt examined Bennett and assigned an impairment rating. ruling. When Dr. Lockstadt examined Bennett on March 4, 2002, and assigned an impairment rating, he also clearly indicated his desire for both an MRI and a functional capacity evaluation (FCE) for Bennett. As the Board noted, Dr. Lockstadt wanted the We affirm the Board's

additional tests in order to determine the validity of Bennett's complaints. He had questioned the validity of her complaints

and wanted the additional tests "to make sure there is nothing more sinister going on." Bennett underwent an MRI on March 11, 2002, and the FCE was completed on April 2, 2002. Dr. Humphrey examined

Bennett on April 30, 2002, and assigned an impairment rating. Dr. Snider performed an independent medical examination (IME) on Bennett on May 15, 2002, and also assigned an impairment rating. The question before this court is whether the ALJ's decision is supported by substantial evidence. See Wolf Creek In

Collieries v. Crum, Ky. App., 673 S.W.2d 735 (1984).

answering the question in the affirmative, we adopt the following portion of the Board's opinion: Based upon the record before the ALJ, we believe it was possible for the ALJ to choose from a number of dates in determining when Bennett's period of temporary total disability would terminate. Here, the ALJ

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could infer Dr. Lockstadt assigned an impairment rating on March 4, 2002 even though he did not know whether Bennett was in fact at maximum medical improvement. It is clear from Dr. Lockstadt's notes, particularly on January 11, 2002 which was prior to the injury, he no longer wished to treat Bennett and this was at least in part due to the denial of the FCE by the carrier. Further, he stated in his March 4, 2002 note that he had nothing further to offer "without further cooperation of her insurance carrier" (emphasis added). Clearly Dr. Lockstadt wanted the MRI and FCE to determine the validity of Bennett's complaints and what treatment might be necessary. The evidence would support a number of inferences, and such inferences are for the ALJ and not this Board. Jackson v. General Refractories Co., Ky., 581 S.W.2d 10 (1979). We believe the ALJ was well within his authority in selecting the date of Dr. Humphrey's exam as the date for the termination of TTD benefits, and Dr. Humphrey's report is substantial evidence supporting the ALJ's conclusion.

In short, we agree that it was within the ALJ's discretion not to adopt March 4, 2002, as the date Bennett attained MMI because Dr. Lockstadt, when he examined Bennett on that day, left open the possibility that the impairment rating he assigned could be modified based on future results of tests which were necessary to accurately determine Bennett's true condition. The opinion of the Board is affirmed. ALL CONCUR.

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BRIEF FOR APPELLANT: Gregory L. Little Lexington, Kentucky

BRIEF FOR APPELLEE: Christopher Davis Mt. Sterling, Kentucky

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