VENDOME COPPER & BRASS WORKS V. JAMES SCHEHR, ET AL.
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RENDERED : SEPTEMBER 20, 2007
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2006-SC-000831-WC
VENDOME COPPER & BRASS WORKS
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
2006-CA-001073-WC
WORKERS' COMPENSATION NO. 03-96796
JAMES SCHEHR ;
HON. LAWRENCE F. SMITH,
ADMINISTRATIVE LAW JUDGE ; AND
THE WORKERS' COMPENSATION BOARD
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
An Administrative Law Judge (ALJ) determined in an interlocutory order that
surgery recommended by the claimant's treating physician was neither reasonable nor
necessary treatment for his work-related back injury but based the subsequent decision
awarding benefits on the physician's opinion that the injury caused a 13% permanent
impairment rating. Although the Workers' Compensation Board and the Court of
Appeals affirmed, the employer continues to argue that the ALJ's decisions were
inconsistent and that the award was not supported by substantial evidence . We affirm .
On April 8, 2002, the claimant fell from a height of about 12 to 14 feet while
working on a ladder . He landed on his left hip, buttock, and shoulder and experienced
immediate low back pain. He experienced left shoulder pain later that day and
subsequently had surgery to repair the rotator cuff. The AL found subsequently that
the left shoulder condition warranted a 5% permanent impairment rating. This appeal
concerns only the back injury .
Dr. Rouben, a board-certified orthopedic surgeon, was the claimant's treating
physician . Dr. Rouben interpreted an MRI as revealing a compression fracture at L1,
which caused the claimant's spine to tilt abnormally. It also revealed disc degeneration
at T12-L1 and L5-S1 . He attributed both conditions to the work-related injury. Although
epidural steroid injections and a facet ablation helped to relieve the claimant's
lumbosacral symptoms, narcotic pain medication and other conservative treatment
failed to relieve his thoracolumbar symptoms . Thus, Dr. Rouben recommended an
anterior/posterior fusion from T11 through L2 to restore normal posture and relieve the
resulting muscle fatigue and symptoms . The procedure would cost about $25,000 .00 .
Dr. Kirsch, board-certified in orthopedic surgery, reviewed the claimant's medical
records for the employer. He concluded that the request for surgery was unrelated to
the April, 2002, injury . On that basis, the employer refused to authorize the procedure .
When deposed subsequently, Dr. Rouben explained the reasons his opinion that
the injury caused the compression fracture. He acknowledged that the radiologists'
characterization of the fracture as being old was reasonable but pointed out that even if
the fracture were old, it became symptomatic only after the injury . Thus, "the fall would
have had an aggravating effect and [brought] any prior physical problems into disabling
reality."
Additional proof was taken, and the AL bifurcated the claim to consider the
reasonableness and necessity of the proposed surgery. At the hearing, the claimant
testified that he was taking Avinza, a form of morphine . It had begun to provide enough
relief that he could continue to work full time .
After reviewing the conflicting medical evidence, the ALJ expressed "extreme
reservations about the wisdom of having such an invasive and radical procedure" and
chose to rely on Dr. Guarnaschelli, who had evaluated the claimant on April 29, 2004.
Dr. Guarnaschelli thought that the work-related fall had aggravated an old compression
fracture at Ll but strongly advised against surgery to relieve the claimant's symptoms
unless he developed progressive and intractable pain and/or progressive neurological
deficits. Neither was present at that time . ©n December 7, 2004, the ALJ entered an
interlocutory order finding that the proposed surgery was neither reasonable nor
necessary and that the employer was. not required to pay its cost.
After additional medical evaluations and another hearing, the ALJ considered
balance of the claim. The claimant presented medical reports from Drs. Chou, Raque,
and Rouben . He and his wife testified to his continued pain and to the changes in their
lifestyle due to the injury. They also testified to his unsuccessful attempts to return to
work. Drs. Guarnaschelli and Best testified for the employer.
Dr. Chou was the claimant's treating pain management specialist. He prescribed
Avinza in February, 2005, and noted that long-term pain control would probably be
necessary . He saw the claimant again in May, 2005, in conjunction with the functional
capacity evaluation that Mr. DeYoung performed . It indicated that the claimant was
capable of working an eight-hour day at light duty . In June, 2005, the claimant
complained of increased pain and difficulty sleeping . He stated that the Avinza had
helped and received a prescription for a refill.
Dr. Raque, a board-certified neurosurgeon, evaluated the claimant in January,
2005. He did not recommend surgery but did recommend pain management . He also
recommended a repeat MRI, which was performed. In March, 2005, he noted that the
study revealed some facet arthritis at L4-5 and L5-S1 but no disc rupture or canal
stenosis . He "did not see anything that a simple decompressive procedure [would]
help" and referred the claimant an orthopedic surgeon.
Dr. Rouben reported that the claimant would have continuous and permanent
pain and limitations without the reconstructive stabilizing procedure that he
recommended . He assigned a 5% permanent impairment rating to the shoulder
condition and a 13% permanent impairment rating (DRE category III) to the
thoracolumbar and lumbar back conditions, which yielded a combined permanent
impairment rating of 15% .
Dr. Guarnaschelli reported a compression fracture of L1 and degenerative
changes at L5-S1, stating that they were pre-existing and related to previous injuries or
the effects of aging . Based on the clinical and radiographic findings, he diagnosed
persistent low back pain syndrome, predominantly in the lower lumbar and left S1 joint .
He thought that the work-related injury aggravated the pre-existing conditions, causing
greater pain and muscle spasms, and he assigned a 5% permanent impairment rating
based upon musculoskeletal pain, restricted range of motion, and subjective sensory
disturbances. He strongly advised against surgery or the use of addictive medication .
Dr. Best, a board-certified orthopedic surgeon, evaluated the claimant in June,
2005 . He found no evidence of a herniated disc or nerve root impingement and nothing
that required surgery. He thought that the claimant was at maximum medical
improvement, required no additional diagnostic or pain management treatment, and
should be weaned from the Avinza. Dr. Best diagnosed low back pain with facet
arthropathy for which he assigned a 5% permanent impairment rating (DRE lumbar
category II). Although he found no new or acute process due to the claimant's fall onto
his left buttocks, he stated that the pain might well be secondary to the work-related fall
because the degenerative changes were more severe in the facet joints at L4-5 on the
left than on the right. In his opinion, the shoulder condition warranted no permanent
impairment rating .
The AU determined that the claimant lacked the physical capacity to return to
his former work but was not totally occupationally disabled . Relying on the 15%
permanent impairment rating that Dr. Rouben assigned, the AU awarded benefits
under KRS 342.730(1)(b) and (1)(c)1 . The award included vocational rehabilitation
services under KRS 342 .710.
The employer's petition for reconsideration stated that Dr. Rouble's findings
"were based on a complete misunderstanding of the claimant's problem" and requested
specific findings explaining why the AU viewed the permanent impairment rating that
he assigned to be most appropriate . Emphasizing that the compression fracture was
old, the employer asserted that it was a pre-existing, active condition and was not
compensable . The AU denied the petition as exceeding the scope of KRS 342 .281 .
Appealing, the employer states that the 13% lumbar impairment was based on a
diagnosis that the AU rejected when denying the request for surgery. Therefore, the
resulting award was arbitrary, capricious, and not based upon substantial evidence . In
the alternative, the employer asserts that the claim must be remanded for further
findings of fact. We disagree .
The AU was not bound by the interlocutory decision when finally deciding the
merits of the claim and was free to reverse or modify it. Union Light, Heat & Power Co.
v. Public Service Commission , 271 S.W.2d 361 (Ky. 1954) ; Western Kraft Paper Group
v. Department for Natural Resources and Environmental Protection, 632 &Wd 454
(Ky. App . 1982) . In any event, there was no inconsistency between the interlocutory
and final decisions . The diagnosis and treatment of a medical condition are different
matters. A physician may diagnose a condition properly yet prescribe an unreasonable
or unnecessary method for treating it. Thus, an ALJ's reservations concerning the
wisdom of a treatment that a physician proposes do not necessarily imply reservations
concerning the physician's diagnosis .
Contrary to the employer's assertion, the interlocutory order did not reject Dr.
Rouben's diagnoses or state that the thoracolumbar complaints were unrelated to the
fall at work. It noted that medication enabled the claimant to work full time, that Dr.
Guarnaschelli strongly opposed the proposed surgery, and that the procedure was
costly, invasive, and radical . The order concluded that the procedure was neither
reasonable nor necessary but contained no specific finding regarding the nature of the
claimant's back injury . Thus, the decision to deny the surgery that Dr. Rouben
proposed did not conflict with the subsequent decision to rely on the 13% permanent
impairment rating that he assigned rather than the 5% rating that Drs. Guarnaschelli
and Best assigned . Moreover, the decision to award benefits based on 13% permanent
impairment rating implied a finding that the entire impairment was due to the fall at work
and, therefore, that it was compensable.
The decision of the Court of Appeals is affirmed .
Lambert, C .J, and Cunningham, Minton, Noble, Schroder, and Scott, JJ ., concur.
Abramson, J., not sitting .
COUNSEL FOR APPELLANT,
VENDOME COPPER & BRASS WORKS:
WALTER E. HARDING
BOEHL, STOPHER & GRAVES, LLP
AEGON CENTER
SUITE 2300
400 WEST MARKET STREET
LOUISVILLE, KY 40202-3351
COUNSEL FOR APPELLEE,
JAMES SCHEHR :
ROBERT M. LINDSAY
SEGAL, LINDSAY, JAMES & BERRY, PLLC
515 PARK AVE .
LOUISVILLE, KY 40208
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