SEVEN COUNTIES SERVICES, INC. v. ELIZABETH LENTZ; HUMANA HEALTH PLANS; HON. JAMES L. KERR, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 14, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001007-WC
SEVEN COUNTIES SERVICES, INC.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-98-59792
v.
ELIZABETH LENTZ;
HUMANA HEALTH PLANS;
HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
BARBER, JUDGE:
Appellant, Seven Counties Services, Inc. (“the
employer”) seeks review of an opinion of the Workers’
Compensation Board, affirming the ALJ’s decision as it pertains
to causation and in allowing the admission of certain expert
medical testimony.
We affirm for the reasons set forth below.
The Appellee, Elizabeth Lentz (“Lentz”), filed a form
101, application for resolution of injury claim, on April 28,
2000, alleging that she injured her low back when she slipped in
water on June 28, 1998.
Lentz was treated by Dr. Rand and
underwent back surgery in September 1998 and again in March 1999.
Sometime in April or May 1999, Lentz fell while walking in her
yard at home; thereafter, she underwent a third surgery.
In an opinion rendered October 23, 2000, the ALJ
determined that Lentz was “totally occupationally disabled as a
result of the injury of June 28, 1998.”
Nevertheless, the ALJ
also found that a 1996 motor vehicle accident would have resulted
in a 10% occupational disability had the motor vehicle accident
“been a work-related injury,” which it was not.
The ALJ carved
out 10% and awarded Lentz 90% of a total for so long as she
remains disabled.
The ALJ determined that “any sequelae from the
fall in the yard . . . [was] related to the work-related injury
of June 28, 1998.”
The ALJ further found that Lentz’s medical
expenses incurred after the fall were work-related and the
responsibility of the employer.
On November 3, 2000, the employer filed a petition for
reconsideration, contending that the ALJ’s findings were not
supported by substantial evidence.
The employer maintained that
it was error for the ALJ to have relied upon the opinion of the
physician who had evaluated Lentz, Dr. Tinsley Stewart.
Dr.
Stewart had voluntarily surrendered his medical license and had
been ordered not to practice medicine in an unrelated proceeding.
The employer also argued that the ALJ erred in considering prior
active disability in determining that Lentz was totally disabled;
furthermore, the ALJ erred in finding a relationship between
Lentz’s fall at home and her work-related injury.
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On November 13, 2000, Lentz filed a response,
contending that the employer had waived its right to dispute the
submission of Dr. Stewart’s report by failing to timely object or
to preserve the issue at the prehearing conference.
Lentz
explained that Dr. Stewart’s report was attached to the form 101,
that the employer had deposed Dr. Stewart on July 10, 2000, and
had questioned him regarding his temporary suspension and an
“Agreed Order of Indefinite Restriction.”
Lentz noted that the
prehearing conference was held on August 9, 2000, and counsel for
the employer did not identify his objection to the admission of
Dr. Stewart’s report at that time.
By order of November 20,
2000, the ALJ denied the employer’s petition for reconsideration.
Another order was rendered December 12, 2000, denying the
employer’s petition for reconsideration.
On December 20, 2000, the employer filed a notice of
appeal to the Board.
of cross-appeal.
On December 28, 2000, Lentz filed a notice
The employer argued that the ALJ erred in
relying upon Dr. Stewart’s testimony because the statutory
definition of physician contained in KRS 342.0011(32) means
physicians “acting within the scope of their license”; Dr.
Stewart’s license had been surrendered before he evaluated Lentz.
The employer also argued that the ALJ erred in finding a
relationship between the fall Lentz had sustained at home and the
work-related injury.
In addition, the employer argued that it
was error to consider Lentz’s prior nonwork-related disability in
determining she was totally disabled under KRS 342.730(1)(a).
-3-
Following amendment in 1994, the statute prohibits consideration
of nonwork-related impairment in determining total disability.
On cross-appeal, Lentz argued that the evidence
compelled a finding that she was totally disabled and that she
should have been awarded benefits accordingly, without an active
carve out.
On April 11, 2000, the Board rendered an opinion,
affirming in part, and reversing in part, and remanding.
The
portions relevant to the issues on appeal are set forth below:
Lentz testified that Dr. Rand recommended
that she walk following her surgery. In May
1999, Lentz was walking in her yard and took
a bad step on uneven ground resulting in a
fall . . . .
. . . .
[At his deposition], Dr. Stewart was also
questioned concerning the suspension of his
medical license. He testified he voluntarily
surrendered his license in December 1999 and
it was reinstated on February 17, 2000. He
explained that he became addicted to pain
killers after hip replacement surgery. He
denied any prior problems with drugs in his
life. Seven Counties filed evidence into the
record indicating that Dr. Stewart regained
his license on March 21, 2000, on a
restricted basis. The evidence further
indicated that Dr. Stewart had been treated
for chemical dependency 20 years previously
and had a relapse approximately 13 years ago.
Lentz, in her brief before this Board, points
out that February 17, 2000, the date Dr.
Stewart testified his license was reinstated,
was actually the date the Kentucky Board of
Medical Licensure met. It was Dr. Stewart’s
understanding that he had regained his
license when he evaluated Lentz in March
2000.
The ALJ listed the medical evidence in the
record he considered and concluded on the
issue of causation as follows:
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. . . Dr. Stewart admitted that
plaintiff’s impairment prior to the injury
of June 28, 1998 would have been 5%
pursuant to the AMA Guidelines. These
factors must be balanced against the fact
that plaintiff was working full time and
unrestricted at the time of the June 28,
1998 injury . . . .
. . . .
In response, Lentz contends that the issue of
Dr. Stewart’s qualifications was not properly
preserved nor raised by Seven Counties.
803 KAR 25:010E, Section 11, deals with the
benefit review conference. The regulation
provides that a purpose of the conference is
to narrow and define issues and if at the
conclusion . . . the parties have not reached
an agreement on all issues, the ALJ shall
. . . prepare a summary stipulation of all
contested and uncontested issues . . . .
Section 7 of the regulation states that
“[o]nly contested issues shall be the subject
of further proceedings.” Clearly the
prehearing order and memorandum does not list
Dr. Stewart’s qualifications as an issue.
Furthermore, Section 9 . . . provides that a
party may file the testimony of two
physicians and “[o]bjection to the filing of
a medical report shall be filed within ten
(10) days of the filing of the notice or the
motion for admission.” Although it is not
entirely clear when Seven Counties became
aware of Dr. Stewart’s qualification problem,
it never filed an objection to the submission
of his medical report.
We agree with Lentz that it would be
patently unfair and highly prejudicial to
strike her medial evidence regarding
permanent impairment, the cause of her
condition and restrictions. The issue was
not timely raised and therefore Seven
Counties is precluded from raising it at this
late date.
Seven Counties next argues the ALJ erred in
finding that a subsequent fall to the ground
in May 1999 was related to the work injury
. . . .
-5-
Lentz testified that Dr. Rand recommended
that she walk. The courts have consistently
held that benefits are allowable for all
injurious consequences flowing from the
original injury which are not attributable to
an independent intervening cause. See, Beech
Creek Coal Co. v. Cox, Ky., 237 SW2d 56
(1951) and Elizabethtown Sportswear Center
v. Stice, Ky. App., 720 SW2d 732 (1986).
Accordingly, we find that the ALJ did not err
in determining the injuries incurred as the
result of the fall at home are work-related.
Seven Counties next argues the ALJ erred when
he took into consideration Lentz’s preexisting active disabilty in determining she
was totally disabled. Here, we agree with
Seven Counties. KRS 342.730(1)(e)
specifically provides that nonwork-related
impairment cannot be considered in
determining whether an employee is totally
disabled.
. . . .
Accordingly, the [ALJ’s] decision . . . is
hereby AFFIRMED IN PART and REVERSED IN PART
on the issue of active disability, and this
matter is REMANDED . . . .1 (Emphasis
original.)
On appeal to this Court, the employer contends that the ALJ
erred in allowing Dr. Stewart’s testimony to be considered,
pointing out that it filed a motion to strike the doctor’s
reports, upon receipt of records from the Kentucky Board of
Medical Licensure on August 31, 2000.
to strike.
The ALJ denied the motion
The motion does not reveal the date that the employer
actually requested the records from the licensure board.
As the
Workers’ Compensation Board stated, it is unclear when the
employer became aware of Dr. Stewart’s qualification problem.
1
W e believe that the employer has properly appealed from a final order as it pertains to the issues raised on this
appeal. See W hittaker v. Morgan, Ky., 562 SW 3d 567 (2001).
-6-
We
agree with the Board’s analysis of the issue and adopt their
reasoning as our own.
The employer also contends that the ALJ’s determination that
the subsequent fall was related to the work-injury lacks a
substantial evidentiary foundation.
We disagree.
testified by deposition and at the hearing.
Lentz
She explained that
she had returned to light duty work in December 1998, after her
first surgery.
She continued to work until February 7, 1999,
when Dr. Rand took her back off work.
Lentz had surgery for the
second time on approximately March 10, 1999.
Lentz fell in her
yard while she was out walking in April or May 1999.
At that
time, Lentz was still “under recovery” from the March 1999
surgery and had not returned to work.
Lentz testified that Dr.
Rand had told her to walk and that is what she was getting ready
to do when she fell.
Although another factfinder may have
reached a different conclusion than did the ALJ in this case, the
Board’s analysis of the issue is correct and we affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Kenneth Nevitt
Nevitt & Williams
Louisville, Kentucky
Tamara Todd Cotton
Louisville, Kentucky
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