DEBORAH MONTGOMERY v. TRANSIT AUTHORITY OF RIVER CITY; SPECIAL FUND; HONORABLE MARK WEBSTER, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED: January 15, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000400-WC
DEBORAH MONTGOMERY
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-96-91917
TRANSIT AUTHORITY OF RIVER CITY;
SPECIAL FUND; HONORABLE MARK
WEBSTER, ADMINISTRATIVE LAW
JUDGE; WORKERS' COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GARDNER AND KNOPF, JUDGES.
GARDNER, JUDGE: Deborah Montgomery (Montgomery) appeals from an
opinion of the Workers’ Compensation Board (the board) affirming
the decision of the Administrative Law Judge (ALJ).
On appeal to
this Court, Montgomery argues that the board erred by not
remanding her case to the ALJ with directions to award her
increased temporary total disability benefits.
After reviewing
the decisions of the board and the ALJ as well as the record
below, this Court has found no error and thus affirms the board’s
opinion.1
We have closely examined the board’s opinion and hereby
adopt it in relevant part:
Petitioner, Deborah Montgomery
(‘Montgomery’), appeals from an opinion and
award rendered by the Hon. Mark C. Webster,
Administrative Law Judge (‘ALJ’), on
September 29, 1997. The ALJ awarded her a
six-day period of temporary total disability
(‘TTD’) benefits as a result of work-related
injury she sustained on May 14, 1996 while in
the employment of respondent, TARC, but found
that the injury resulted in no permanent
occupational disability. He awarded her
medical treatment for the cure and relief
from the effects of her injury but relieved
TARC from paying any medical expenses
obtained outside of its managed care system.
On appeal, Montgomery contends that the ALJ
erred in relieving TARC of the obligation to
pay medical expenses incurred outside its
managed care system and in failing to award
her further TTD benefits.
Montgomery injured her back while
lifting a wheelchair onto a TARC bus on May
14, 1996. She has a history of previous
injuries, both work related and nonwork
related, including injuries to her back
causing her to miss periods of work in the
past. After the instant injury, she drove
herself to Jewish Hospital, was treated,
given medication, and eventually referred to
Dr. Snowden, whom she described as the
company doctor. He took her off work for 13
days and then returned her to work with no
restrictions.
Montgomery subsequently injured her
index finger in August of 1996 while
attempting to unlatch another wheelchair.
She was eventually treated by Drs. Kutz and
1
Montgomery argued before the board below that the ALJ erred
by denying her medical expenses incurred, because she saw
physicians outside the employer’s managed health care plan. She
has not raised this issue before this Court; therefore, we will
not address it.
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Kleinert for this problem and taken off work
from August 1996 until October 9, 1996 at
which time she was released to return to work
with the restriction of wearing a splint.
She went back to work on October 10, drove an
hour or so, and then determined she could not
do it any more because of pain in her finger
and back. She returned to work again in May
1997 and worked through July 9, 1997.
At the time of her administrative
hearing on August 28, 1997, Montgomery was
still employed by TARC but off work, being
treated by her family physician, Dr. Horton.
At that hearing, she testified Dr. Horton did
not want her to go back on the bus and had
given her off-work slips for various periods
of time from August 1996 and including one on
August 4, 1997. In addition to treating with
Dr. Snowden for her back condition, she has
also treated with her family physician, Dr.
Horton, and Drs. Catalano and Pestruska, to
whom Dr. Horton referred her. She testified
that she began treating with Dr. Horton after
Dr. Snowden prescribed Flexeril for her and
released her to return to work without
restrictions, despite her telling him that
she could not take the Flexeril and still
drive.
When asked if she was aware TARC had a
managed care system that had been setup for
the purpose of her getting medical treatment,
Montgomery responded negatively but later
confirmed she knew that there were certain
doctors she was to see it [sic] there was a
work-related problem and that that is why she
went to see the company doctor. She also
confirmed that Dr. Horton was not in the
managed care system, testifying at her
administrative hearing that, ‘They have some
where you can go see the company doctor, and
if you don’t agree to what he says, you can
see your own doctor but still be covered
under workers’ comp.’
The ALJ, relieving TARC of the
obligation to pay for treatment received
outside of its managed care system, stated:
On page thirty-five of her
deposition, Montgomery testified
that she knew there was a managed
care component to the company’s
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workers’ compensation insurance,
but she chose to go outside of the
system in order to treat with Dr.
Horton. I really have no proof
other than her testimony that there
was a managed care system, and I
therefore discount her testimony.
Since I have found that she has
proved that the injury suffered on
May 14, 1996, was work related, the
employer is relieved from paying
medical expenses obtained outside
the managed care system.
In summarizing Montgomery’s testimony, the
ALJ indicated that although he was not sure
Montgomery knew the difference, she testified
that she was aware Dr. Horton was not a
participating physician in the company’s
managed care system.
In addressing the extent and duration of
Montgomery’s disability, after finding that
she was entitled to six days of TTD because
of the 13 days she missed immediately after
her work injury, he stated:
From that point on, the main
problem was her finger. Then
somehow in October, the back and
the finger become [sic] disabling.
I find that any back pain she
suffered in and after October was
not related to the slight incident
in May but instead a continuation
of her longstanding back problems.
Dr. Banerjee found no disability
and gave no restrictions. I
therefore will find that she has no
occupational disability even though
I found above that she has proven
that her back injury was an injury
which was related to her work.
In contending she should have received
further periods of TTD, Montgomery contends
that merely because Dr. Banerjee testified
the permanent impairment from which she
suffered did not arise from a work injury did
not mean the ALJ could not find TTD based
upon other medical evidence of record. The
ALJ, based upon Dr. Banerjee’s testimony,
found Montgomery had no occupational
disability from her work-related injury. He
-4-
believed the May 1996 incident was a
temporary aggravation of her previous history
of back pain and did not cause any permanent
changes. The evidence presented by Dr.
Banerjee is evidence of substance in support
of the ALJ’s finding that the May injury
resulted in no permanent occupational
disability and that her problems with her
back in October of 1996 and thereafter were
not related to the May incident. There is,
therefore, evidence of substance in support
of the ALJ’s finding on the issue of TTD, and
the evidence referred to by Montgomery does
not compel an award of additional TTD
benefits. Special Fund v. Francis, Ky., 708
S.W.2d 641 (1986).
For the foregoing reasons, this Court affirms the
opinion of the Workers’ Compensation Board.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE TRANSIT
AUTHORITY OF RIVER CITY:
Robert M. Lindsay
Louisville, Kentucky
Carla Foreman Dallas
Louisville, Kentucky
BRIEF FOR APPELLEE SPECIAL
FUND:
Joel D. Zakem
Louisville, Kentucky
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