(BOR
Appeal No. 2051576) (Claim No. 2014005893)
MEMORANDUM DECISION
The
issue on appeal is the amount of disability related to the
compensable injury. Mr. Blackwell was awarded 7% permanent
partial disability. Through his attorney, Reginald Henry, he
argues that he is entitled to a greater permanent partial
disability award and that relying on the report of Syam
Stoll, M.D., was clearly wrong because it did not accurately
reflect his level of disability. AH Services, through Sean
Harter, its attorney, argued that the reports of Dr. Stoll
and Prasadarao Mukkamala, M.D., were more reliable because
they properly used Table 27 of the American Medical
Association's Guides to the Evaluation of Permanent
Impairment (4th ed. 1993). We hold that because Dr.
Stoll properly used the American Medical Association's
Guides, it was not in error for the lower courts to
adopt his opinion.
Mr.
Blackwell, an employee for AH Services, was working when he
fell out of a truck. Mr. Blackwell was diagnosed with a
shoulder sprain, an open wound of the forehead, a head
injury, and a wrist sprain. An x-ray revealed a small lesion
in the proximal humerus with no evidence of fracture or
dislocation. An MRI of Mr. Blackwell's right shoulder
revealed full-thickness tears of the supraspinatus and
infraspinatus tendons, mild subluxation of the biceps long
head tendon, tenosynovitis, and a partial tear of the
subscapularis.
Mr.
Blackwell underwent right shoulder rotator cuff repair,
acromioclavicular joint resection, biceps tenotomy,
subacromial decompression, and debridement of the labrum
performed by Phillip Branson, M.D. He diagnosed Mr. Blackwell
with mild arthritis of the glenohumeral joint, massive
retracted rotator cuff tear, biceps tear with associated
labral tear, subacromial impingement, and acromioclavicular
joint arthritis. After the surgery, Mr. Blackwell underwent
four independent medical evaluations to ascertain his level
of impairment related to the compensable injury.
Dr.
Mukkamala found Mr. Blackwell to have 6% upper extremity
impairment for abnormal flexion of the right shoulder and 4%
upper extremity impairment for abnormal abduction of the
right shoulder under the American Medical Association's
Guides. Dr. Mukkamala converted the upper extremity
impairment to find 6% whole person impairment for the right
shoulder. The claims administrator granted Mr. Blackwell a 6%
permanent partial disability award in accordance with Dr.
Mukkamala's report.
Bruce
Guberman, M.D., found Mr. Blackwell to have no impairment for
the face and right wrist injuries. Dr. Guberman found 7%
upper extremity impairment for abnormal flexion of the right
shoulder, 1% upper extremity impairment for abnormal
extension, 1% upper extremity impairment for abnormal
adduction, 5% upper extremity impairment for abnormal
abduction, 2% upper extremity impairment for abnormal
internal rotation, and 1% upper extremity impairment for
abnormal external rotation under the American Medical
Association's Guides. Additionally, Dr. Guberman
found 10% upper extremity impairment under Table 27 of the
American Medical Association's Guides for
resection arthroplasty of the distal right clavicle. Dr.
Guberman found Mr. Blackwell to have a combined total of 15%
whole person impairment of the right shoulder. Because Mr.
Blackwell had already received a 6% permanent partial
disability award, Dr. Guberman recommended an additional 9%
impairment.
Robert
Walker, M.D., found 7% upper extremity impairment for
abnormal flexion of the right shoulder, 2% upper extremity
impairment for abnormal extension, 1% upper extremity
impairment for abnormal adduction, 6% upper extremity
impairment for abnormal abduction, 3% upper extremity
impairment for abnormal internal rotation, and 1% upper
extremity impairment for abnormal external rotation under the
American Medical Association's Guides.
Additionally, Dr. Walker found Mr. Blackwell to have 10%
upper extremity impairment under Table 27 of the American
Medical Association's Guides for
acromioclavicular joint resection with acromioplasty. Dr.
Walker found Mr. Blackwell to have a combined total of 17%
whole person impairment for the compensable right shoulder
injury.
Dr.
Stoll found 5% upper extremity impairment for abnormal
flexion of the right shoulder, 4% upper extremity impairment
for abnormal abduction, 2% upper extremity impairment for
abnormal internal rotation, and 1% upper extremity impairment
for abnormal external rotation under the American Medical
Association's Guides. Dr. Stoll found Mr.
Blackwell to have a total of 7% whole person impairment of
the right shoulder. Dr. Stoll stated that Dr. Guberman and
Dr. Walker erred in finding 10% upper extremity impairment
under Table 27 of the American Medical Association's
Guides for distal clavicle resection of the right
shoulder. Dr. Stoll noted that according to the operative
report of March 7, 2014, Mr. Blackwell underwent an
acromioclavicular joint resection, not a distal clavicle
resection. Dr. Stoll further noted that Table 27 of the
American Medical Association's Guides provides
no impairment for an acromioclavicular joint resection.
Additionally, Dr. Stoll opined that Mr. Blackwell's right
shoulder acromioclavicular joint resection was directed at
treating pre-existing, non-compensable arthritis of the
acromioclavicular joint.
Dr.
Mukkamala completed an addendum which stated he agreed with
Dr. Stoll's opinion that assigning whole person
impairment under Table 27 of the American Medical
Association's Guides was inappropriate. He also
believed that the reports of Dr. Guberman and Dr. Walker
found excessive range of motion impairments. He confirmed his
finding of 6% whole person impairment.
The
Office of Judges concluded that Dr. Guberman's and Dr.
Walker's reports were unreliable because both physicians
improperly recommended impairment from Table 27 of the
American Medical Association's Guides. Dr.
Guberman recommended 10% upper extremity impairment for
resection arthroplasty of the distal right clavicle under
Table 27 of the American Medical Association's
Guides. However, according to the operative report
dated March 7, 2013, Mr. Blackwell underwent a resection of
the acromioclavicular joint, not a resection of the distal
clavicle. Dr. Walker found 10% upper extremity impairment
under Table 27 for acromioclavicular joint resection with
acromioplasty. Although Dr. Walker found the correct
operative procedure, a review of the American Medical
Association's Guides shows that no impairment is
indicated under Table 27 for acromioclavicular joint
resection. The Office of Judges found that neither Dr.
Mukkamala nor Dr. Stoll recommended any impairment under
Table 27 and both arrived at very similar range of motion
findings. Considering that Dr. Stoll performed the most
recent medical evaluation of Mr. Blackwell, the Office of
Judges determined his report was more reliable. The Board of
Review adopted the findings of the Office of Judges and
affirmed its Order.
After
review, we agree with decision of the Office of Judges as
affirmed by the Board of Review. The decision of the Office
of Judges was supported by the evidence of record and was not
clearly wrong. Because the facts and legal arguments are
adequately presented and the decisional process would not be
significantly aided by oral argument, a memorandum decision
is appropriate under Rule 21 of the Rules of Appellate
Procedure. Therefore, the decision of the Board of Review is
affirmed.
Affirmed.
ISSUED:
December 7, 2017
CONCURRED IN BY: Chief Justice Allen H. Loughry II Justice
Robin J. Davis Justice Margaret L. Workman Justice Menis ...