CANDACE SMITH v. OWSLEY COUNTY HEALTH CARE CENTER; HON. ANDREW F. MANNO, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
JANUARY 5, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2006-CA-000676-WC
CANDACE SMITH
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-05-99342
v.
OWSLEY COUNTY HEALTH CARE CENTER;
HON. ANDREW F. MANNO,
ADMINISTRATIVE LAW JUDGE; and
WORKERS’ COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DIXON AND TAYLOR, JUDGES; KNOPF,1 SENIOR JUDGE.
DIXON, JUDGE:
Candace Smith seeks review of an opinion of the
Workers’ Compensation Board that affirmed an Administrative Law
Judge’s denial of her claim for future medical benefits for a
work-related back injury.
Smith, who is 20 years old, is a high school graduate
and attends community college.
She worked for Owsley County
Health Care Center (“OCHCC”) as a certified nurse’s aide.
1
Her
Senior Judge William L. Knopf sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110 (5)(b) of the Kentucky Constitution and
Ky. Rev. Stat. (KRS) 21.580.
job at OCHCC required her to lift patients to and from their
beds.
The parties stipulated that Smith suffered two
separate work related injuries.
She was initially injured on
November 19, 2003, when she pulled a muscle in her back while
lifting a patient.
She sought treatment with a nurse
practitioner, completed two weeks of physical therapy, and
missed one week of work.
Smith fully recovered from this injury
and continued working in her normal capacity.
On December 28, 2004,2 Smith injured her back when she
lifted a patient and felt a “pop” accompanied by shooting pain.
She sought treatment at the Family Practice Clinic of Boonville.
Smith was diagnosed with muscle strain and radiculopathy in her
back, and x-rays showed no abnormalities.
She attended physical
therapy and complained of ongoing pain in her lower back.
Smith
never returned to work at OCHCC.
On March 29, 2005, Dr. Robert Johnson, an orthopaedic
surgeon, evaluated Smith and filed a Form 107 medical report.
Dr. Johnson noted that Smith had an MRI within normal limits,
but he disagreed with the findings of the radiologist.
On
August 1, 2005, Dr. Johnson re-evaluated Smith and found her to
2
The ALJ refers to December 26, 2004 and December 28, 2004 interchangeably as
the date of injury, as Smith testified the injury occurred on either of those
dates. For continuity in this opinion, we refer to the date of injury as
December 28, 2004.
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be at maximum medical improvement (MMI) with a 5% permanent
impairment rating.
On April 27, 2005, a second orthopaedic surgeon, Dr.
Timothy Wagner, examined Smith and filed a report.
Dr. Wagner
reviewed Smith’s medical records and determined that she had 0%
impairment.
He further determined that Smith would require no
future medical treatment for her injury and related Smith’s
complaints of lingering back pain to being twenty-five pounds
overweight.
The ALJ found that Smith suffered a temporary workrelated low-back injury on November 19, 2003.
The ALJ noted
that medical evidence showed this injury completely resolved
after one week, and he found no permanent impairment or need for
future medical treatment.
The ALJ also found that Smith sustained a work-related
injury on December 28, 2004.
However, the ALJ relied on the
report of Dr. Wagner and found Smith sustained 0% impairment.
The ALJ awarded temporary total disability benefits and
dismissed Smith’s claim for permanent disability benefits.
The
ALJ also awarded medical benefits through April 27, 2005, the
date Smith reached MMI.
Finally, the ALJ denied Smith’s claim
for future medical expenses.
The Workers’ Compensation Board
affirmed the ALJ’s decision.
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In her appeal to this Court, Smith claims that the ALJ
erred in not awarding her future medical benefits pursuant to
Kentucky Revised Statutes (KRS) 342.020.
On review, we recognize the ALJ enjoys great
discretion in considering the weight and credibility of the
evidence.3
It is well-settled “that the claimant [in this case,
Smith] bears the burden of proof and the risk of nonpersuasion
before the fact-finder with regard to every element of a
workers' compensation claim.”4
If the ALJ finds against the
claimant, the claimant then faces a stringent burden of proof on
appeal to the Board.5 As such, the Board will uphold the ALJ’s
decision unless it is clearly erroneous.6
Consequently, this
Court gives great deference to the Board’s decision and only
intervenes where the Board’s action constitutes a flagrant error
resulting in gross injustice.7
Smith argues she is entitled to future medical
benefits even though the ALJ found no permanent disability.
Smith primarily relies on Cavin v. Lake Construction Company8 and
3
Magic Coal Company v. Fox, 19 S.W.3d 88, 96 (Ky. 2000).
4
Id.
5
Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).
6
Id.
7
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
8
451 S.W.2d 159 (Ky. 1970).
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Combs v. Kentucky River District Health Department9 to support
her claim.
The Cavin court held:
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.10
In the recent Combs decision, the ALJ relied on the
medical evidence to award the claimant future medical benefits.11
The Board reversed the ALJ’s award, finding that future medical
benefits were not available in the absence of a permanent
impairment.12
On review, this Court relied on the holding in
Cavin to reverse the Board and reinstate the order of the ALJ.13
Smith’s argument to this Court implies that Cavin and
Combs provide an open invitation for all claimants to receive
future medical benefits for a non-disabling work injury.
disagree.
Smith plainly overlooks the fact that the ALJ in this
case relied on the evidence of record that future medical
treatment would not be necessary.
discretion afforded the ALJ:
9
We
194 S.W.3d 823 (Ky. App. 2006).
10
Cavin, 451 S.W.2d at 161-62.
11
Combs, 194 S.W.3d at 825.
12
Id.
13
Id. at 826-27.
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We again point out the
The ALJ, as the finder of fact, and not the
reviewing court, has the sole authority to
determine the quality, character, and
substance of the evidence. Where, as here,
the medical evidence is conflicting, the
question of which evidence to believe is the
exclusive province of the ALJ.14
While it is true, as Smith points out, that KRS
342.020(1) provides that
[i]n addition to all other compensation
provided in this chapter, the employer shall
pay for the cure and relief from the effects
of an injury or occupational disease 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, or as may be
required for the cure and treatment of an
occupational disease . . . ,
In this case, however, we agree with the Board that
[i]n the argument portion of her appellate
brief, Smith cites to no medical opinion of
record that Smith requires future medical
treatment. Rather, she asserts that because
the ALJ found that she had a 0% permanent
impairment rating as a result of the
December 2004 injury, rather than finding
the injury to be a temporary exacerbation,
the ALJ was required to award future medical
benefits.
* * *
In an April 27, 2005 report filed of record
herein, Dr. Timothy Wagner clearly stated
his opinion that Smith ‘does not need any
continuing medical treatment at the present
time or into the future due to this work
related injury of December 28, 2004.’ The
ALJ, in his role as fact finder, credited
this opinion. The Board is without
14
Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993) (citations omitted).
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authority to supplant this factual finding.
[citations omitted].
The decision of the Board is supported by substantial
evidence and without error as a matter of law.
Consequently,
Smith’s claim for future medical benefits must fail.
The opinion of the Workers’ Compensation Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
McKinnley Morgan
MORGAN, MADDEN, BRASHEAR &
COLLINS
London, Kentucky
Brian T. Gannon
FULTON & DEVLIN
Louisville, Kentucky
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