We’ll say it again: Ky. WCB readdresses and reapplies Tokico and Fawbush in two recent decisions

The Kentucky Workers’ Compensation Board (Board) recently decided two cases of particularly instructive import regarding the application of Tokcio v. Kelly, 281 S.W.2d 771 (Ky. 2009) and Fawbush v. Gwinn, 103 S.W.3d 5 (Ky. 2003), respectively.

In Lay v. Cracker Barrel, Ky. WCB Claim No. 2005-65871 (2011), the Board addressed the 2009 Kentucky Supreme Court case of  Tokico v. Kelly, which held that a physician’s diagnosis need not conform to the “fairly ridgid criteria of the [AMA] Guides.”  Tokico, as did Lay, involved a diagnosis of Chronic Regional Pain Syndrome (CRPS) and the application of Table 16-16 of the AMA Guides, 5th Edition (p. 496).  In pertinent part, Table 16-16 required a patient to exhibit 8 out of 10 listed symptoms before a physician could accurately diagnose CRPS.

While the ALJ in Lay acknowledged Tokico’s pronouncement of a more relaxed application of Table 16-16, the ALJ still relied on the table for determining Lay did not suffer from CRPS and, therefore, was not entitled to an assessment of impairment for the condition or medical regimens to specifically treat the condition.  On appeal, Lay argued that Tokico prevented the ALJ from relying on Table 16-16 and sought reversal.  The Board noted that while Tokico did not require a fact-finder to follow the strict diagnostic criteria of table 16-16 (or any other “rigid” Guides diagnostic criteria) it likewise did not prevent the fact-finder from relying on the diagnostic criteria in “judging the credibility of a diagnosis.” 

COMMENTARY AND ANALYSIS:  While the Board’s determination in Lay was correct, it seemed to imply too limiting an interpretation of Tokico, by perhaps suggesting Guides criteria could only be used in “judging credibility” of a diagnosis in conjunction with other evidence and not merely as the sole determination of the accuracy/credibility of a diagnosis.  In actuality, Tokico seems to say nothing to prevent a fact-finder from relying solely on such criteria.

In Jones v. Kellwell Food Management, Inc., Ky. WCB, Claim No. 2010-00392, the Board addressed application of Fawbush v. Gwinn, a Kentucky Supreme Court case which stands for the proposition that when a claimant is found not to retain the physical capacity to perform her pre-injury work duties but does return to work at wages equal to or greater than her pre-injury wages, the ALJ is permitted to apply either:

 KRS 342.730(1)(c)1 and 3  — which triples benefits when claimant does not retain the pre-injury physical capacity and, under (1)(c)3, is additionally enhanced for age and education factors


KRS 342.730(1)(c)2 — which merely doubles benefits if a claimant has returned to work at equal/greater wages but then ceases earning equal/greater wages  —  if the fact-finder determines the claimant will continue to earn that wage into the indefinite future (even if she does not retain her pre-injury physical capacity)

The ALJ in Jones found that while Jones did not retain her pre-injury physical capacity (she remained in the same position but with mostly supervisory duties), she was earning equal wages  and the evidence indicated she could continue in the more supervisory position for the indefinite future.  Thus, under Fawbush he awarded the “x2” benefits of KRS 3423.730(1)(c)2 and not the “x3” benefits of KRS 342.730(1)(c)1.

Claimant appealed and the Board affirmed the ALJ’s decision finding he had conducted the proper analysis under Fawbush

ANALYSIS/COMMENTARY:  This case is instructive of proper application of the Fawbush analysis.  While Board Member Stivers dissented, essentially recommending remand, arguing the ALJ never actually referenced Fawbush by name and that portions of his findings seemed contradicting of his ultimate determination, it is doubtful that even with remand the outcome would be different.  Even without specific reference to Fawbush the ALJ’s analysis was appropriate and consistent with the Fawbush criteria.

By |2011-10-15T16:27:34+00:00October 15th, 2011|