An ALJ may apportion the impairment rating for an injury in a Kentucky workers compensation case. The Kentucky Supreme Court clarified the scope of the ALJ's discretion recently in Pella Corp. v Bernstein, No 2010-SC-448-WC (April 21, 2011).
The injured worker, Joyce Bernstein suffered various injuries including shoulder injuries. She was treated for the shoulder injuries by an orthopedic surgeon, Dr. Jackson, who assigned a 10% permanent impairment rating to her shoulder injuries further specifying on the Form 107 a greater degree of impairment to the left shoulder than to the right. However, Dr. Jackson did not apportion the 10% impairment among the shoulders. Subsequently, it developed, according to testimony by Bernstein, that her right shoulder had healed.
The Supreme Court, in affirming a ruling by the Court of Appeals, ruled that, and ALJ could properly attribute more than half of the 10% impairment rating to the shoulders to the left shoulder. Toward this ruling the Court recited examples and instances of the discretion an ALJ has to select the appropriate impairment rating:
- an ALJ may consult the American Medical Association's Guides to the Evaluation of Permanent Impairment when considering the medical evidence and deciding which expert to rely upon
- an ALJ may rely on at least some of the conversion tables found in the Guides, such as the tables used combine whole-person impairment ratings or to convert a binaural hearing impairment to a whole-person impairment
- an ALJ may also translate a Class 1-5 impairment assigned to a medical condition under the Fourth or Fifth Edition of the Guides into a percentage impairment by using the last edition that equated Class 1-5 impairment with percentages
