CHARLES JEKEL, JR. v. JAVIER STEEL CORPORATION; WORKERS' COMPENSATION BOARD; HON. MARCEL SMITH, Administrative Law Judge; AND HON. DONALD G. SMITH, Administrative Law Judge
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RENDERED:
NOVEMBER 4, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002407-WC
APPELLANT
CHARLES JEKEL, JR.
v.
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
WC-02-94608
JAVIER STEEL CORPORATION;
WORKERS’ COMPENSATION BOARD;
HON. MARCEL SMITH, Administrative
Law Judge; AND HON. DONALD G.
SMITH, Administrative Law Judge
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI AND MINTON, JUDGES; EMBERTON, SENIOR JUDGE. 1
EMBERTON, SENIOR JUDGE:
The issues in this appeal from a
decision of the Workers’ Compensation Board center on the
compensability of certain medical treatment; duration of
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
temporary total disability benefits; and the failure to award
vocational rehabilitation benefits.
Finding no error in the
analysis of the facts and legal authority set out in the opinion
of the Board, we affirm.
There is no dispute that appellant Charles Jekel
sustained a work-related low back injury in the course of his
employment with Javier Steel and that he cannot return to his
former employment due to that injury.
After initial
conservative treatment for low back pain proved unsuccessful in
relieving his pain, Jekel was referred to Dr. Steven Reiss, a
neurosurgeon who did an L4-5 discectomy in May 2002.
In August
2002, Dr. Reiss referred Jekel for a functional capacity
evaluation which revealed that he could return to medium duty
work.
Although Dr. Reiss subsequently released Jekel to return
to work with restrictions of no repetitive bending and no
lifting over thirty pounds, Jekel did not return to work but
sought treatment from Dr. David Rouben, an orthopedic surgeon
who recommended a multi-level fusion.
The compensation carrier for Javier Steel submitted
the matter of medical necessity of the surgery for utilization
review.
Dr. Alan Roth determined that the proposed surgery was
not medically necessary and appropriate, with Dr. Russell
Travis, a Lexington neurosurgeon, reaching the same conclusion
on Jekel’s motion for reconsideration.
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The original
Administrative Law Judge bifurcated the matter of medical
necessity from the remainder of Jekel’s compensation claim and
rendered an October 21, 2003, opinion and order finding that
proposed procedure was unnecessary based upon the opinions of
Dr. Reiss, Dr. Travis, and Dr. Bart Goldman, who had at that
time examined Jekel on two occasions at the request of Javier
Steel.
After conducting the first examinations, Dr. Goldman was
of the opinion that a course of physical therapy followed by
work hardening might allow Jekel to return to his previous
employment.
By the time of the second examination, Jekel had
not followed the prescribed work-hardening treatment and Dr.
Goldman again recommended that course of treatment.
In October 2003, Javier Steel reinstated temporary
total disability benefits based upon Jekel’s assurance that he
would follow Dr. Goldman’s recommendation concerning physical
therapy and work-hardening.
After Jekel failed to submit to
that treatment, TTD benefits were terminated in February 2004,
but were reinstated from March 2004, through the date of the
final hearing after Jekel finally undertook the treatment.
After reviewing the voluminous medical and lay
evidence in the record, the ALJ found Jekel had sustained a
permanent partial disability as a result of the work-related
back injury and applied the three multiplier set out in KRS
342.730(1)(c)1.
The ALJ entered the following finding
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concerning entitled to TTD benefits, vocational rehabilitation,
and compensability of a pain management treatment program:
I am persuaded by the opinion of Dr. Goldman
that plaintiff had reached maximum medical
improvement by November 25, 2002. Dr.
Goldman is an examining rather than a
treating physician. However, he examined
plaintiff on three occasions and his
opinions are well reasoned and supported by
objective evidence. Dr. Goldman made his
opinions clear when he testified. Therefore
I find that plaintiff was entitled to
temporary total disability benefits from
February 10, 2002 to November 25, 2002. Dr.
Eells did not assign any work restrictions
for a psychological condition. Relying on
this opinion, I find that plaintiff’s
psychological condition does not extend the
period of entitlement to TTD.
* * *
Under KRS 342.720, an employee is
entitled to vocational rehabilitation when,
as a result of an injury, he is unable to
perform work for which he has previous
training or experience. Being persuaded by
Dr. Goldman, Dr. Eells and Ralph Haas [a
vocational expert], I find that plaintiff is
precluded from iron work, but is capable of
returning to some of the other jobs he has
done in the past. Therefore, defendant is
not liable for vocational rehabilitation.
* * *
KRS 342.020 requires defendant to pay
for medical treatment which is reasonable
and necessary. Dr. Peters has treated
plaintiff for a period of time for pain
management. This treatment includes
narcotic medications. Dr. Reiss, who
referred plaintiff to Dr. Peters,
recommended that plaintiff discontinue use
of narcotic pain medications long ago. Dr.
Goldman recommended pain management in 2003,
but only for a short term. I am persuaded
-4-
by these statements. I find that continued
pain management and narcotic medications are
not reasonable and necessary. Defendant
will not be held liable for this treatment.
Jekel’s subsequent appeal of the ALJ’s determinations on these
issues, as well as the previous ALJ’s ruling concerning noncompensability of further surgery, produced an opinion affirming
both ALJs on all issues.
Jekel now advances the same arguments
concerning the propriety of the ALJs’ conclusions in this
appeal.
First, as to the compensability of the surgery
recommended by Dr. Rouben, Jekel cites Square D. Company v.
Tipton 2 for the proposition that Javier Steel could be relieved
of the obligation to pay for that surgery only upon proof that
the treatment would be unproductive or is outside the type of
treatment generally accepted as reasonable by the medical
profession and that the employer bears the burden of proof in
that regard.
Like the Board, we find that regardless of which
party had the burden of proof, substantial evidence supported
the ALJ’s conclusion that the fusion surgery was not reasonable
or necessary.
Similar to the situation in Square D., the ALJ
relied upon evidence from the physician who had performed
Jekel’s initial surgery that due to the location of his pain,
fusion surgery was not likely to be successful.
2
862 S.W.2d 308 (Ky. 1993).
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The ALJ cited
the opinions of two other neurosurgeons who recommended against
the surgery.
Having the substantial support of evidence of
record, we are without authority to disturb the decision of the
factfinder. 3
Jekel next complains that the ALJ erred in terminating
his TTD benefits as of November 25, 2002, because he had not
reached maximum medical improvement and was restricted from work
following that date.
The flaw in Jekel’s argument is that the
ALJ was free to accept the opinion of Dr. Goldman that as of the
date of his November 25, 2002, examination, Jekel was at maximum
medical improvement and could return to medium duty work.
In
Magellan Behavioral Health v. Helms, 4 this Court recently
examined the requirements for entitlement for TTD benefits set
out in KRS 342.0011(11)(a) and emphasized that each of the two
components of that statute must be met:
1) the claimant must
not have reached MMI; and 2) the claimant must not have improved
enough to return to work.
Thus, the testimony of Dr. Goldman
provides ample support for the termination of TTDs on November
25, 2002, despite his recommendation for further treatments
which might provide palliative relief or even allow return to
his former work activities.
3
Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
4
140 S.W.3d 579 (Ky.App. 2004).
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The third allegation of error focuses upon the denial
of compensability of continued pain management treatment with
narcotic pain medication.
Again, there is ample evidence in the
record to support the conclusion that continuation of such
treatment was neither reasonable nor necessary and in fact the
ALJ cited the opinions of two physicians who specifically
recommended against the continuance of the narcotic medications.
Finally, Jekel argues that the denial of vocational
rehabilitation benefits was erroneous because the evidence is
uncontradicted that he cannot return to his former employment as
an iron worker.
KRS 342.710 provides for the payment of
vocational rehabilitation benefits reasonably necessary to
restore a claimant to suitable employment when, due to his workrelated injury, he is unable to perform work for which he has
previous training or experience.
Jekel’s request for such
benefits was denied on the basis of evidence that there were
jobs he had done in the past to which he was capable of
returning.
Thus the factual determination required by the
statute 5 has been entered and review of the record confirms the
existence of substantial evidentiary support for the finding.
5
See Edwards v. Bluegrass Containers Division of Dura Containers, Inc., 594
S.W.2d 900 (Ky.App. 1980).
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In sum, we note that the scope of our review as set
out in Western Baptist Hospital v. Kelly 6 is to correct the Board
only when it appears that it has “overlooked or misconstrued
controlling statutes or precedent or committed an error in
assessing the evidence so flagrant as to cause gross injustice.”
Our review of the record discloses that neither factor precludes
affirmance of the Board’s opinion in this case.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Christopher P. Evensen
Louisville, Kentucky
Judson F. Devlin
Louisville, Kentucky
6
837 S.W.2d 865, 867-8 (Ky. 1992).
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