MELISSA MONTGOMERY v. UNITED PARCEL SERVICE; HON. W. BRUCE COWDEN, JR., ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 9, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2005-CA-000847-WC
MELISSA MONTGOMERY
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-01-89184
v.
UNITED PARCEL SERVICE;
HON. W. BRUCE COWDEN, JR.,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE:
KNOPF AND TACKETT, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
KNOPF, JUDGE:
Melissa Montgomery appeals from an opinion and
order by the Workers’ Compensation Board (Board) that vacated a
portion of the Administrative Law Judge’s (ALJ) order requiring
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
United Parcel Service (UPS) to pay her future medical expenses.
We agree with Montgomery that, under the current version of KRS
342.020(1), an employer may be required to pay the employee’s
reasonable medical expenses incurred as a result of the injury,
even in the absence of any permanent disability.
Hence, we
reverse the Board’s order and reinstate the ALJ’s award.
The underlying facts of this action are not in
dispute.
Montgomery suffered a work-related injury on April 24,
2001, while working for UPS.
In an opinion and award entered on
August 18, 2003, the ALJ found that Montgomery had sustained her
burden of showing that she had suffered a work-related injury,
but had not proven that the injury produced any permanent
occupational disability.
Consequently, the ALJ found that she
was entitled to temporary total disability benefits from April
25, 2001, through February 19, 2002, when she reached maximum
medical improvement (MMI).
The ALJ indicated in the opinion that Montgomery was
entitled to payment of medical expenses, but did not expressly
make a medical-benefits award.
In her petition for
reconsideration, Montgomery requested that the award be amended
to expressly include both past and future medical expenses.
The
ALJ entered an amended order on September 25, 2003, directing
UPS to pay Montgomery’s past and future medical expenses related
to the injury.
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UPS paid all medical expenses incurred by Montgomery
up to the date of the award, but it appealed the award of future
medical expenses.
In a 2-1 opinion entered on April 1, 2005,
the Board vacated the ALJ’s award of future medical expenses.
A
majority of the Board concluded that KRS 342.020(1) permits an
award of medical expenses incurred only during the period of the
employee’s disability.
Because Montgomery had reached MMI and
has no permanent disability rating, the Board found that UPS was
not required to pay for any additional medical expenses which
she may incur.
Montgomery now appeals from this order.
The function of the Court of Appeals in reviewing a
Board decision is "to correct the Board only where the Court
perceives 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." 2
However, we
review issues involving statutory interpretation de novo, and
without deference to the construction given by the Board. 3
Furthermore, our workers’ compensation laws should be
2
Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-688 (Ky.
1992).
3
Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App. 1998).
-3-
interpreted liberally in light of the “munificent, beneficent
and remedial purposes of the Workers' Compensation Act.” 4
This case turns on the interpretation of KRS
342.020(1), which provides in pertinent part:
In addition to all other compensation
provided in this chapter, the employer shall
pay for the cure and relief from the effects
of an injury . . . the medical, surgical,
and hospital treatment, including nursing,
medical, and surgical supplies and
appliances, as may reasonably be required at
the time of the injury and thereafter during
disability . . . The employer’s obligation
to pay the benefits specified in this
section shall continue for so long as the
employee is disabled regardless of the
duration of the employee’s income benefits.
The first sentence of KRS 342.020(1) confines an award
for medical expenses to those expenses which “may reasonably be
required at the time of the injury and thereafter during
disability.” (Emphasis added).
Moreover, KRS 342.020(1)
reiterates: “The employer’s obligation to pay the benefits
specified in this section shall continue for so long as the
employee is disabled regardless of the duration of the
employee’s income benefits.” (Emphasis added).
On the other
hand, the final sentence also specifies that the employer is
liable for payment of medical expenses “regardless of the
duration of the employee’s income benefits.”
4
Coal-Mac, Inc. v. Blankenship, 863 S.W.2d 333, 334 (Ky.App.
1993).
-4-
A majority of the Board found that the references to
“disability” and “for so long as the employee is disabled” must
mean something in addition to a situation in which medical
treatment for the cure and relief from the effects of the injury
is reasonably required.
The Board also noted the long-standing
rule that an ALJ may award medical expenses even in the absence
of permanent disability because it is possible for a nondisabling injury to require medical care. 5
However, the Board
found that the 1996 amendments to KRS 342.020(1), which added
the references to disability, demonstrate that the General
Assembly intended to alter this rule.
Therefore, the Board
concluded that the current version of the statute requires an
employer to pay medical expenses which are incurred during a
period of the employee’s disability.
Because Montgomery had
reached MMI and had no permanent disability rating, the Board
found that UPS is not liable for payment of any future medical
expenses which Montgomery may incur as a result of her workrelated injury.
Nevertheless, we agree with the separate opinion by
Board Member Stanley that the 1996 amendment to KRS 342.020(1)
does not expressly link a claimant’s right to receive reasonable
medical care to his entitlement to an award of temporary or
5
See Cavin v. Lake Construction Co., 451 S.W.2d 159 (Ky. 1970);
Mountain Clay, Inc. v. Frazier, 988 S.W.2d 503 (Ky.App. 1998).
-5-
permanent disability income benefits, and we adopt the following
portion of his dissenting opinion:
The issue of whether an injured worker
is entitled to future medical benefits where
the subject injury does not warrant a
corresponding award of permanent disability
was first addressed by the Kentucky Court of
Appeals, now the Supreme Court of Kentucky,
in Cavin v. Lake Construction Co., 451
S.W.2d 159 (Ky. 1970). In that case, the
claimant received multiple injuries,
including injuries to his neck and back,
when he tripped and fell into a ditch while
carrying an 80-pound jackhammer on his
shoulder. The “old” Workman’s Compensation
Board rejected his claim for income
benefits, finding the injury produced no
occupational disability arising out of the
accident, but nevertheless awarded medical
benefits pursuant to KRS 342.020. In
affirming the old Board’s ruling, Judge
Palmore, writing for the court, stated as
follows: “We do not believe it is
necessarily inconsistent for the board to
award payment of medical expenses without
finding some extent of disability. It is not
impossible for a non-disabling injury to
require medical attention.”
Of course as previously mentioned,
since the court rendered its decision in
Cavin, supra, KRS Chapter 342 has undergone
several transformations, with the most farreaching changes having occurred first in
1987, and again more recently in 1996 and
2000. As pointed out by the majority,
following those changes, the court, to a
limited degree, revisited the issue of
entitlement to future medical benefits in
Robertson v. United Parcel Service, [64
S.W.3d 284 (Ky. 2001)]. Nevertheless, Cavin,
supra, remains factually distinguishable
from Robertson, supra, and for that reason
is still good law.[footnote omitted]
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As acknowledged by the majority, the
claimant in Robertson, supra, failed to
prove to the satisfaction of the ALJ
anything more than a temporary work-related
exacerbation of a pre-existing, nonworkrelated condition. Because the injury
produced no permanent effects, the claimant
in Robertson was found to be entitled only
to the medical expenses previously paid by
his employer during the temporary flare-up
of symptoms. The focus of the court,
therefore, was on the claimant’s entitlement
to future medical benefits beyond a point in
time when he returned to his baseline state
of health as it existed prior to the workrelated event. Because the claimant in
Robertson was determined to have made a full
recovery, the court held that his
entitlement to workers’ compensation
benefits was properly extinguished. By
contrast, the claimant in Cavin, supra,
never returned to his pre-injury state of
health.
Hence, in every instance where future
medical benefits are sought absent an award
of indemnity benefits the question remains —
is the claimant’s situation more comparable
to Cavin, supra, or more akin to Robertson,
supra. In other words, are the effects of
the claimant’s injury temporary or
permanent? The claimant’s entitlement to an
income disability award is not the deciding
factor. Rather, the issue turns on whether
the effects of the injury are enduring to
the degree that there is a resulting need
for medical treatment beyond the point in
time when the claimant reaches maximum
medical improvement.
I would agree that “disability,” as
used in Kentucky's workers’ compensation
law, is a term of art. Osborne v. Johnson,
Ky., 432 S.W.2d 800 (1968). However, it is
also a term of art that is long established.
Prior to the 1996 amendments to the Act,
disability was statutorily defined at KRS
342.0011(11), formerly KRS 342.620(9) and
later KRS 342.620(11), as follows:
-7-
'Disability' means a decrease of
wage earning capacity due to
injury or loss of ability to
compete to obtain the kind of work
the employee is customarily able
to do, in the area where he lives,
taking into consideration his age,
occupation, education, effect upon
employee’s general health of
continuing in the kind of work he
is customarily able to do, and
impairment or disfigurement.
The above codification by the
legislature first enacted in 1972 was
derived from the original definition of
disability established by the Kentucky Court
of Appeals in the landmark decision of
Osborne v. Johnson, supra, rendered in 1968.
Since December 12, 1996, the effective
date of the 1996 amendments, the Act has
been without a single “disability”
definition. Instead, the new Act provides us
only with definitions of “temporary total
disability,” “permanent partial disability,”
“permanent total disability” and “permanent
disability rating.” See KRS 342.0011(11)(a),
(b) and (c), and (36). These are as follows:
(11) (a) 'Temporary total
disability' means the condition of
an employee who has not reached
maximum medical improvement from
an injury and has not reached a
level of improvement that would
permit a return to employment;
(b) 'Permanent partial
disability' means the condition of
an employee who, due to an injury,
has a permanent disability rating
but retains the ability to work;
and
(c) 'Permanent total
disability' means the condition of
an employee who, due to an injury,
has a permanent disability rating
-8-
and has a complete and permanent
inability to perform any type of
work as a result of an injury,
except that total disability shall
be irrebuttably presumed to exist
for an injury that results in:
1. Total and permanent loss
of sight in both eyes;
2. Loss of both feet at or
above the ankle;
3. Loss of both hands at or
above the wrist;
4. Loss of one (1) foot at or
above the ankle and the loss of
one (1) hand at or above the
wrist;
5. Permanent and complete
paralysis of both arms, both legs,
or one (1) arm and one (1) leg;
6. Incurable insanity or
imbecility; or
7. Total loss of hearing.
* * * * *
(36) 'Permanent disability rating'
means the permanent impairment
rating selected by an
administrative law judge times the
factor set forth in the table that
appears at KRS 342.730(1).
The majority is correct that KRS
342.020(1) demarcates the duration of an
award of medical benefits according to the
period of the injured worker’s “disability.”
However, nowhere does the Act expressly link
a claimant’s right to receive reasonable
medical care under KRS 342.020(1) to his
entitlement to an award of temporary or
permanent disability income benefits. More
importantly, the language of KRS 342.020
imposes no requirement that a claimant
demonstrate evidence of a “permanent
disability rating” as prerequisite to a
permanent award of medical benefits, as does
the indemnity side of the equation. For this
reason, “disability,” as utilized in KRS
342.020 is not, in my opinion, necessarily
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synonymous with the phrases “temporary total
disability”, “permanent partial disability”
or “permanent total disability” as those
terms are intended for purposes of
calculating awards of income benefits
pursuant to KRS 342.730. Rather,
“disability,” as used in KRS 342.020, is
dependent on the duration of a claimant’s
need for medical care, depending on the
evidence of record and the particular fact
findings made by the ALJ, irrespective of
the presence or absence of a measurable
functional impairment rating under the AMA
Guides, a permanent disability rating or an
award of income benefits. When, for purposes
of KRS 342.020, the duration of an
employee’s disability is permanent, as was
the case in Cavin, supra, the claimant has a
right to reasonable and necessary medical
treatment so long as symptoms persist and
some cure and/or relief can be provided. By
contrast, where the employee’s disability is
determined to be temporary, as in Robertson,
supra, the right to medical treatment spans
only that period of time until the employee
reaches a pre-injury level of improvement.
Because under the existing Act both
“permanent partial disability” and
“permanent total disability” incorporate
“permanent disability rating” as part of
their explanations, I interpret the intent
of these definitions as being primarily
directed toward operation of the formulas
for the calculation of benefits set out in
KRS 342.730 as amended in 1996 and 2000. I
do not believe these amendments were
intended necessarily to eliminate the
historic definition of “disability” with
regard to all other provisions of the Act. I
believe this is the same interpretation
which is the basis for the [S]upreme
[C]ourt’s holdings in Ira A. Watson
Department Store v. Hamilton, 34 S.W.3d 48
(Ky. 2000) and progeny. Specifically, I
direct the majority to the following
language included in Hamilton, supra;
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An analysis of the factors set
forth in KRS 342.0011(11)(b),
(11)(c) and (34) clearly requires
an individualized determination of
what the worker is and is not able
to do after recovering from the
work injury. Consistent with
Osborne v. Johnson, supra, it
necessarily includes a
consideration of factors such as
the worker's post-injury physical,
emotional, intellectual, and
vocational status and how those
factors interact. It also includes
a consideration of the likelihood
that the particular worker would
be able to find work consistently
under normal employment
conditions. A worker's ability to
do so is affected by factors such
as whether the individual will be
able to work dependably and
whether the worker's physical
restrictions will interfere with
vocational capabilities. The
definition of 'work' clearly
contemplates that a worker is not
required to be homebound in order
to be found to be totally
occupationally disabled. See,
Osborne v. Johnson, supra, at 803.
(Emphasis added.)
Id. at 51.
I believe these same factors are also
applicable to the term “disability” as used
in KRS 342.020(1). What then qualifies as
“disability” for purposes of awards of
future medical benefits? In my opinion, all
that is required is substantial evidence to
support a finding that, within a reasonable
degree of probability, the injured worker
will require additional medical treatment to
aid in the cure and/or relief of a workrelated condition beyond the time maximum
medical improvement is achieved. Although a
- 11 -
worker has no disability rating or in the
future may not miss sufficient time from
work when receiving medical care to qualify
for temporary income benefits, a change in
job duties due to permanent restrictions or
time lost from work to attend doctors’
appointments and participate in medical
treatment, even if only infrequently,
nonetheless represents an “interference with
vocational capabilities” and, as such,
qualifies as “disability” for purposes of
KRS 342.020. Ira A. Watson Department Store
v. Hamilton, supra.
In this instance, Melissa Montgomery
was found to have sustained a work-related
injury. The evidence of record supports that
finding. The ALJ, in his judgment as trier
of fact, after considering the record as a
whole, also determined in spite of the
respondent’s lack of a permanent impairment
rating that she remains in need of future
medical care as a result of the effects of
the injury. That finding, too, is supported
by substantial evidence — a point of fact
the majority conspicuously fails to address.
Although Dr. Gleis felt that Montgomery was
at maximum medical improvement and assessed
a 0% impairment rating, he, nevertheless,
opined that the respondent would benefit
from a future exercise program for the
lumbar spine. From that statement, as well
as the other medical and lay evidence of
record including the respondent’s own
testimony regarding her ongoing symptoms, I
believe the ALJ, as fact finder, could
easily infer that such an exercise program
would be monitored by someone in the medical
profession and, therefore, some limited
future medical benefits relative to
Montgomery’s work-related injury are
appropriate. Cavin v. Lake Construction Co.,
supra; Ira A. Watson Department Store v.
Hamilton, supra; Hush v. Abrams, 584 S.W.2d
48 (Ky. 1979). Such reasonable inferences
remain, in my opinion, a matter of
discretion for the ALJ. Jackson v. General
Refractories Co., 581 S.W.2d 10 (Ky. 1979);
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Wal-Mart v. Southers, 152 S.W.3d 242 (Ky.
App. 2004). Moreover, we should not forget
that employers, pursuant to KRS 342.020, are
guaranteed due process of law under such
circumstances. UPS would remain free to
challenge the reasonableness and necessity
of any proposed medical regimen. See 803 KAR
25:012; National Pizza Co. v. Curry, 802
S.W.2d 949 (Ky.App. 1991).
Accordingly, the April 1, 2005, order of the Workers’
Compensation Board is reversed and the September 25, 2003, award
entered by the ALJ is reinstated.
TACKETT, JUDGE, CONCURS.
ROSENBLUM, SENIOR JUDGE, DISSENTS AND FILES SEPARATE
OPINION.
ROSENBLUM, SENIOR JUDGE, DISSENTING:
dissent.
I respectfully
I believe that the majority opinion issued by the
Workers’ Compensation Board correctly determined that Melissa
Montgomery was only entitled to recovery of medical expenses
until she reached maximum medical improvement in 2002.
KRS
342.020(1) limits an employer’s medical benefit obligation
temporally to “the time of the injury and thereafter during
disability” and only “for so long as the employee is disabled.”
The 1996 amendments to the Act deleted the prior occupational
definition of the term “disability” set forth in KRS
342.0011(11) and substituted in its place the present statutory
definitions of temporary total disability, permanent partial
disability and permanent total disability.
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KRS 342.0011(11)(a)
defines temporary total disability as meaning “the condition of
an employee who has not reached maximum medical improvement from
an injury and has not reached a level of improvement that would
permit a return to work.”
Melissa Montgomery received temporary
total disability benefits for the period commencing April 25,
2001 through and including February 19, 2002.
She had no
permanent impairment or permanent disability.
Furthermore, she
was found to have reached maximum medical improvement.
There is
no finding in the record indicating that Melissa Montgomery has
not reached a level of improvement that would permit a return to
work.
Because her disability as defined in KRS 342.0011(11)(a)
concluded, an award of future medical expenses is not justified
and should be limited to those expenses incurred until the date
that she reached maximum medical improvement.
BRIEF FOR APPELLANT
MELISSA MONTGOMERY:
BRIEF FOR APPELLEE
UNITED PARCEL SERVICE:
Wayne C. Daub
Louisville, Kentucky
James G. Fogle
Anthony K. Finaldi
Ferreri & Fogle
Louisville, Kentucky
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