RENDERED: JULY 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0325-WC
TRACY SCOTT TOLER APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-18-82397
OLDHAM COUNTY FISCAL COURT;
HONORABLE JONATHAN R.
WEATHERBY, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, JONES, AND McNEILL, JUDGES.
COMBS, JUDGE: This is a Workers’ Compensation case involving a knee injury
sustained by Appellant, Tracy Scott Toler (Toler). January 16, 2018, Toler injured
his knee in the course and scope of his employment with Appellee, Oldham
County Fiscal Court (Oldham County). After our review, we affirm.
The opinions of the Administrative Law Judge (ALJ) and Workers’
Compensation Board (Board) contain detailed discussions of the evidence
presented. The medical evidence regarding permanent impairment was conflicting.
Dr. Craig Roberts examined Toler at the request of his own attorney. Dr. Roberts
assigned a total 6% whole person impairment comprised of 4% for partial medial
and lateral meniscectomies and 2% for pain-related impairment under the
American Medical Association (AMA) Guides to the Evaluation of Permanent
Impairment, Fifth Edition (Guides). Oldham County obtained a records review
from Dr. Christopher Brigham, who assigned a 4% whole-person impairment
under the Guides.
The issues which Toler raises on appeal concern Dr. Brigham’s report
and impairment rating. By notice dated May 8, 2020, Oldham County filed Dr.
Brigham’s report “to be considered as evidence for all purposes in this matter. Dr.
Brigham’s medical index number is 8042A.”1 The attached curriculum vitae
1
Kentucky Revised Statutes (KRS) 342.033 permits a party to “introduce direct testimony from
a physician through a written medical report. The report shall become a part of the evidentiary
record, subject to the right of an adverse party to object to the admissibility of the report and to
cross-examine the reporting physician.” 803 Kentucky Administrative Regulations (KAR)
25:010(10)(4) provides that if the “qualifications of the physician who prepared the written
medical report have been filed with the commissioner and the physician has been assigned a
medical qualifications index number, reference may be made to the physicians index number in
lieu of attaching qualifications[.]”
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reflects that Dr. Brigham is licensed to practice medicine in Maine, Hawaii, and
California.
Toler filed an objection to the filing of Dr. Brigham’s report on the
ground that he is not a physician as defined in KRS 342.0011(32) because he is not
licensed in Kentucky. The ALJ directly addressed this issue in his opinion and
order of September 20, 2020, concluding that Dr. Brigham’s report was
admissible:
19. The Plaintiff has challenged the admissibility
of the report of Dr. Brigham due to his being a physician
licensed outside of the Commonwealth based upon the
definition of “Physician” as it appears in KRS 342.0011
which provides:
“Physician” means physicians and
surgeons, psychologists, optometrists,
dentists, podiatrists, and osteopathic
and chiropractic practitioners acting
within the scope of their license issued
by the Commonwealth.
20. The ALJ notes that these definitions are listed
with the caveat, “unless the context requires otherwise”
and finds that the intent of this particular provision is not
to limit the ability of otherwise qualified physicians to
render opinions that may be used in Workers’
Compensation jurisprudence. Additionally, Dr. Brigham
possesses a Kentucky Physician Index Number on file
with the Department of Workers’ Claims which provides
significant context to the interpretation of this definition.
21. The ALJ therefore finds that the context of the
definition of the “Physician” dictates a more expansive
definition of the term than that suggested by the Plaintiff
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and that to conclude otherwise would frustrate the aims
of the Department that has provided Dr. Brigham with a
Physician Index number. The ALJ thus finds that the
report of Dr. Brigham is admissible herein.
The ALJ awarded permanent partial disability benefits based upon the
4% impairment rating assigned by Dr. Brigham, having found his opinion to be
more credible than that of Dr. Roberts.
On October 5, 2020, Toler filed a petition for reconsideration, which
the ALJ denied by an order entered on October 14, 2020.
Toler appealed to the Board and again argued that Dr. Brigham is not
a “physician” as defined by KRS 342.0011(32). Toler also argued that Dr.
Brigham never examined him as required by the Guides in order to make a pain
rating assessment. By February 22, 2021, opinion,2 affirming, the Board explained
as follows:
While we acknowledge KRS 342.0011(32)
defines “physicians” as one of the specified practitioners
acting within the scope of his or her license issued by the
Commonwealth, the opening caveat – i.e. “unless the
context otherwise requires” – does, as interpreted by the
ALJ, seemingly afford the ALJ the discretion to look
beyond the confines of the definition. Thus, we hold the
ALJ’s interpretation of the caveat is harmonious with the
wide discretion afforded to Administrative Law Judges in
the workers’ compensation arena by both statutory and
case law.
2
The Board’s opinion was originally entered on February 12, 2021, withdrawn on February 22,
2021, and re-entered on February 22, 2021.
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The ALJ set forth a thorough and cogent
explanation why he believes the statute permits him to
rely upon Dr. Brigham’s opinions despite the fact that he
is not licensed to practice medicine in Kentucky.
Persuasive to the ALJ is the fact that Dr. Brigham
possesses a Physician Index Number on file with the
Department of Workers’ Claims. The ALJ ultimately
concluded that a more expansive definition of
“physician” is appropriate in this context, as the
objectives of the Department would be frustrated if the
opinions of a physician to whom the Department issued a
Physician Index Number were excluded from
consideration. Indeed, we find there to be an illogical
notion for the Department of Workers’ Claims to issue a
Physician Index Number to a physician upon whom an
ALJ could not rely.
The Board disagreed with Toler’s argument that Dr. Brigham was
required to examine Toler in person before rendering a pain rating assessment.
The Board explained that “there is nothing within the AMA Guides, which directly
mandates only a physician who conducts a physical examination of a claimant can
formulate a pain rating assessment.” (Underline original.) Additionally, the Board
noted that the greater weight that the ALJ gave to Dr. Brigham’s opinion is a
matter of the ALJ’s discretion. “KRS 342.285 grants an ALJ as fact-finder the sole
discretion to determine the quality, character, and substance of evidence. Square D
Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). This Board’s task on appeal does not
encompass second-guessing this discretion.” (Underline original.)
On appeal to this Court, Toler argues: (1) that Dr. Brigham is not a
physician as defined by KRS 342.0011(32) and that, therefore, his report cannot be
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admitted into evidence nor relied upon as substantial evidence; and (2) that Dr.
Brigham never examined Toler as required by the Guides in order to make a pain
rating assessment.
In our review of a Board decision, it is well settled that our task is to
correct the Board only where we perceive that “the Board has overlooked or
misconstrued controlling statutes or precedent, or committed an error in assessing
the evidence so flagrant as to cause gross injustice.” W. Baptist Hosp. v. Kelly, 827
S.W.2d 685, 687-88 (Ky. 1992). Mindful of that strict standard, we are satisfied
from our review that the Board’s analysis of the issues raised by Toler on appeal is
correct.
Accordingly, we AFFIRM.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE TAYLOR
COUNTY FISCAL COURT:
Bruce Anderson
Louisville, Kentucky Thomas L. Ferreri
Louisville, Kentucky
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