MOUNTAIN CLAY, INC. V. JERRY W. FRAZIER; LLOYD R. EDENS, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
MODIFIED:
October 30, 1998; 2:00 p.m.
TO BE PUBLISHED
February 12, 1999; 10:00 a.m.
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000171-WC
MOUNTAIN CLAY, INC.
v.
APPELLANT
PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS' COMPENSATION BOARD
WC-91-025858
JERRY W. FRAZIER; LLOYD R.
EDENS, ADMINISTRATIVE LAW
JUDGE; and WORKERS'
COMPENSATION BOARD
AND
APPELLEES
NO. 1998-CA-000239-WC
JERRY FRAZIER
v.
CROSS-APPELLANT
CROSS-PETITION FOR REVIEW
OF A DECISION OF
THE WORKERS’ COMPENSATION BOARD
WC-91-025858
MOUNTAIN CLAY, INC.; LLOYD
R. EDENS, ADMINISTRATIVE
LAW JUDGE; and WORKERS’
COMPENSATION BOARD
CROSS-APPELLEES
OPINION
AFFIRMING
BEFORE:
* * * * * * *
COMBS, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This case involves petitions for review of a
decision of the Workers’ Compensation Board (Board).
Mountain
Clay, Inc. (Mountain Clay) argues that the administrative law
judge (ALJ) on reopening erred in awarding Jerry Frazier
(Frazier) medical benefits when he did not request them and the
ALJ who adjudicated the original claim did not award them.
Frazier contends that the evidence compels a finding of an
increase in occupational disability.
Frazier's original claim alleged neck and back pain as
the result of a June 1991 work injury.
ALJ Ronald W. May found
that Frazier suffered a compression fracture at T-5, but based on
a lack of impairment rating and restrictions by Dr. Huszar and no
restrictions by Dr. Lowe, coupled with the fact that Frazier had
returned to the same job without missing any work, he found no
permanent disability and dismissed the claim.
Judge May made no
mention of medical benefits.
Upon reopening in December 1996, Frazier claimed that
he was now more occupationally disabled than at the time of the
original claim.
He complained of pain over his shoulders and
upper back, as well as his lower back and legs.
He stated that
despite searching, he was unable to obtain any other employment.
Relying on Peabody Coal Co. v. Gossett, Ky., 819 S.W.2d
33 (1991), ALJ Edens noted that Frazier had returned to work
November 11, 1991 and continued to work until he was laid off on
December 27, 1995.
The medical evidence came from Drs. Stephen
Spady, James Templin, and Daniel Primm.
Dr. Spady noted
increased complaints of pain and a decrease in range of motion.
Dr. Primm found the same limitations and functional impairment as
he had in 1994.
Judge Edens was not persuaded that Frazier had
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suffered an increase in occupational disability and therefore
denied the claim.
The ALJ, however, did award medical expenses
related to the T-5 injury.
This decision was based in part on
Judge May's having found a compression fracture of the thoracic
spine at T-5.
Both Frazier and Mountain Clay appealed to the Board,
which affirmed the ALJ's opinion.
The Board found the denial of
the claim supported by substantial evidence.
Francis, Ky., 708 S.W.2d 641 (1986).
Special Fund v.
The Board also determined:
[A]LJ May . . . made no findings concerning
medical benefits. In his deposition, Dr.
Spady testified that his treatment has been
mainly for the thoracic problem. He stated
that Frazier has chronic pain in the thoracic
area radiating into the upper thoracic and
down into the lower thoracic spine. He
stated that Frazier still can't sleep at
night because of pain in the thoracic area.
The Kentucky Supreme Court has reaffirmed the
concept that medical benefits are not tied to
a finding of occupational disability in Derr
Construction Co. vs. Bennett, Ky., 873 SW2d
824 (1994). The Court stated, "liability for
medical expenses requires only that an injury
was caused by work and that medical treatment
was necessitated by the injury[."] There is
evidence of substance in the record to
support the ALJ's finding that Frazier is
entitled to medical treatment for his
thoracic condition. As a further basis to
affirm ALJ Edens' award of medical benefits,
we believe ALJ May should have awarded
medical benefits for the thoracic condition
in the original award. We believe it would
be proper for ALJ Edens to correct this
pursuant to the holding of Wheatley vs.
Bryant Auto Services, Ky., 860 SW2d 767
(1993).
Mountain Clay now maintains that the sua sponte award
of medical benefits upon reopening was improper because Frazier
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did not request them, and the ALJ did not explain how the award
was proper under any of the bases of KRS 342.125.
Mountain Clay
espouses that an award of medical benefits is not required in
every case of a work-related injury.
Mountain Clay also claims
that the Board’s reliance on Wheatley, 860 S.W.2d 767 is
misplaced.
We disagree.
KRS 342.020(1) states that, “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 . . . .”
It
has consistently been held that an ALJ may award medical expenses
even if he finds no disability because it is possible for a nondisabling injury to require medical care.
Cavin v. Lake
Construction Co., Ky., 451 S.W.2d 159 (1970).
“Liability for
medical expenses requires only that an injury was caused by work
and that medical treatment was necessitated by the injury.”
Construction Company, 873 S.W.2d at 827.
Derr
Thus, the only question
is whether it is proper for an ALJ, on remand, to award medical
benefits, when the ALJ who adjudicated the original claim found a
work-related injury but did not award associated medical
benefits.
We agree with the Board that ALJ May should have
awarded medical benefits for the T-5 injury in the original
opinion.
He failed to make any mention of medical benefits, and
Frazier did not petition for reconsideration asking for same.
However, we find no reason why these facts should have precluded
ALJ Edens from awarding such benefits on reopening.
-4-
KRS 342.125
allows the ALJ to “reopen and review any award or order . . .,
ending, diminishing, or increasing the compensation previously
awarded, . . . or change or revoke his previous order[.]”
See
also Wheatley v. Bryant Auto Service, Ky., 860 S.W.2d 767 (1993).
Therefore, we reject Mountain Clay’s argument that ALJ Edens was
not entitled to look behind the earlier decision to determine
that the omission of medical benefits was a mistake.
Frazier contends that the evidence compels a finding of
an increase in disability.
Because the ALJ found no disability,
Frazier had to establish before the Board that the evidence
compelled a finding in his favor.
Paramount Foods, Inc. v.
Burkhardt, Ky., 695 S.W.2d 418 (1985).
This Court will only
correct a Board decision when we “perceive[] 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.”
Western Baptist Hospital v. Kelly, Ky.,
827 S.W.2d 685, 687-88 (1992).
We do not find this standard has
been met here.
Frazier relies on the deposition of Dr. Spady and the
report of Dr. Templin as proof that his condition at T-5 has
worsened since the original opinion.
However, the ALJ considered
this evidence but found more persuasive the testimony of Dr.
Primm that Frazier had the same limitations and functional
impairment as he had in 1994.
Dr. Primm found no evidence that
Frazier’s condition had worsened for reason other than
deconditioning.
Because Dr. Primm’s testimony constitutes
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substantial evidence, the Board correctly affirmed the ALJ’s
dismissal of the claim.
As the Board has not misconstrued
controlling precedent, we affirm its decision.
Accordingly, the decision of the Workers’ Compensation
Board is affirmed.
ALL CONCUR.
BRIEF FOR MOUNTAIN CLAY, INC.:
BRIEF FOR JERRY W. FRAZIER:
Timothy J. Walker
London, Kentucky
Rickey D. Bailey
Manchester, Kentucky
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