Pella Corporation v. Bernstein, No. 2010-CA-000171-WC (Ky. App. 2010). An ALJ has the discretion to apportion an AMA Guides impairment rating between more than one injury even in the absence of specific medical testimony on apportionment.

Employee Bernstein filed a claim for benefits alleging a variety of injuries to her left shoulder, right shoulder, neck, arm, hand, and low back. The primary significance of this decision revolved around the ALJ ‘s determination relative to plaintiff ‘s left shoulder and right shoulder allegations. A medical expert in the claim assigned a collective impairment rating of 10% to the left shoulder and the right shoulder. The physician did not apportion the impairment between the two shoulders, only indicating the left was worse than the right. While the ALJ found that the right shoulder was not compensable from a legal standpoint, he found that the left shoulder was compensable; however, he concluded he did not have the discretion to award any impairment to the left shoulder in the absence of specific apportionment by a medical expert.

The matter was appealed to the Workers’ Compensation Board who determined that the ALJ did have discretion to apportion impairment to the left shoulder. The Court of Appeals affirmed the Workers’ Compensation Board determining that medical expertise was not necessary for the ALJ to apportion all or part of the 10% impairment to Bernstein’s left shoulder injury based on the testimony of record.

COMMENT:  The Court of Appeals may have stretched previous holdings a bit far in this decision. Prior Supreme Court determinations allow the ALJ to apportion a percentage of impairment when a range of impairment percentages (not a specific percentage) are assessed by a physician based on the DRE Categories of the AMA Guides, Fifth Edition, Chapter 15. In those situations, the Supreme Court has determined an ALJ can specify an impairment rating from such a range. However, the employer in the Bernstein case may have been right in its argument that Bernstein’s situation involved more than a simple reading of a table or chart.

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