522 S.W.3d 204
Ky. Ct. App.2017Background
- Christopher Cunningham injured his right shoulder while employed by Quad/Graphics and received an ALJ award of permanent partial disability based on an 8% whole person impairment.
- The 8% rating derived from an independent medical evaluation by orthopedic surgeon Dr. Stacie Grossfeld.
- Cunningham appealed to the Workers’ Compensation Board, arguing the rating was inadequate and unsupported.
- Cunningham’s core complaint: Dr. Grossfeld relied on passive range of motion (ROM) measurements and discounted active ROM, which he says the AMA Guides (5th ed.) require for shoulder impairment ratings.
- The ALJ and the Board affirmed the award, finding Dr. Grossfeld permissibly interpreted the AMA Guides and properly adjusted for inconsistent active ROM measurements.
- The court reviewed whether Dr. Grossfeld’s methodology could constitute substantial evidence supporting the impairment rating and award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the impairment rating is substantial evidence when based on passive rather than active ROM | Cunningham: AMA Guides require active ROM; using passive ROM disregards Guides so rating is not substantial evidence | ALJ/Board: AMA Guides allow physician judgment when active ROM is inconsistent; Grossfeld validly discounted active ROM and used passive ROM plus other evidence | Court: Held for defendant — physician’s interpretation and modification under AMA Guides was permissible and constitutes substantial evidence |
Key Cases Cited
- Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984) (workers’ compensation awards must be based on substantial evidence)
- Jones v. Brasch-Barry Gen. Contractors, 189 S.W.3d 149 (Ky. App. 2006) (AMA Guides must be followed; deviation invalidates rating)
- Lanter v. Ky. State Police, 171 S.W.3d 45 (Ky. 2005) (medical interpretation questions are for experts)
- Brown-Forman Corp. v. Upchurch, 127 S.W.3d 615 (Ky. 2004) (ALJ as factfinder assesses credibility of conflicting medical evidence)
- Greene v. Paschall Truck Lines, 239 S.W.3d 94 (Ky. App. 2007) (conflicting medical evidence credibility rests with ALJ)