MORGAN KIRK v. RUTH CONTRACTORS; KNOLL COUNTY MEDICAL CLINIC; HIGHLANDS REGIONAL MEDICAL CENTER; UNIVERSITY OF KENTUCKY MEDICAL CENTER; MEDI HOME CARE; HON. J. KEVIN KING, ADMINISTRATIVE LAW JUDGE; DEPARTMENT OF WORKERS' COMPENSATION FUNDS; AND WORKERS' COMPENSATION BOARD
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RENDERED: August 6, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000675-WC
MORGAN KIRK
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-84-27402
v.
RUTH CONTRACTORS; KNOLL COUNTY
MEDICAL CLINIC; HIGHLANDS REGIONAL
MEDICAL CENTER; UNIVERSITY OF KENTUCKY
MEDICAL CENTER; MEDI HOME CARE;
HON. J. KEVIN KING, ADMINISTRATIVE
LAW JUDGE; DEPARTMENT OF WORKERS'
COMPENSATION FUNDS; AND
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; AND EMBERTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Morgan Kirk has petitioned for review from a
Workers’ Compensation Board opinion entered on March 3, 2004,
which affirmed the Administrative Law Judge’s order granting
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Ruth Contractor’s motion to deny payment of contested medical
expenses on the grounds that they were not related to Kirk’s
pneumoconiosis.
Having concluded that the ALJ’s factual
findings were supported by substantial evidence and that he
correctly applied the law, we affirm.
This case arises out of a motion to reopen filed by
Ruth Contractors alleging that specific contested medical
expenses were not related to Kirk’s pneumoconiosis.
Previously,
the “old” Board in an opinion and award entered on March 10,
1986, had found Kirk to be totally and permanently disabled as
of June 4, 1983, as a result of pneumoconiosis and/or silicosis,
arising out of and in the course of his employment as a coal
miner.
In the instant action, the ALJ on August 19, 2003,
ruled that the medical expenses in question were unrelated to
King’s pneumoconiosis and therefore non-compensable.
The ALJ’s
decision became final on September 15, 2003, in an order denying
Kirk’s petition for reconsideration.
In an opinion entered on
March 3, 2004, the Board affirmed the ALJ’s ruling.
This
petition for review followed.
In the litigation of the contested medical expenses,
Kirk presented evidence to the ALJ through the testimony of his
treating pulmonologist, Dr. Raghu Sundaram, tending to show the
medical expenses in question resulted from procedures necessary
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for treatment of his pneumoconiosis.
Dr. Sundaram opined that
Kirk’s breathing impairment and recurrent pulmonary infections,
as well as his industrial bronchitis, were caused in part by
prolonged exposure to coal dust.
Hence, Kirk argues that these
medical expenses are compensable based on his earlier
compensation award against Ruth Contractors.
In rebuttal, Ruth Contractors presented evidence from
three board certified physicians.
Two of the three doctors, Dr.
David Goldstein and Dr. John McConnel, indicated that while Kirk
did suffer from pneumoconiosis, in their opinion the medical
treatments in question were not a result of his pneumoconiosis,
but instead were necessitated by his chronic obstructive lung
disease which was caused by cigarette smoking.
The third
doctor, Dr. Bruce Broudy, did not believe that Kirk suffered
from pneumoconiosis, but he concurred with the opinion that the
medical treatments were related to cigarette smoking.
Dr.
Broudy further testified that even if he were to assume that
Kirk did have pneumoconiosis, the contested medical treatments
were related to cigarette smoking, not to coal dust exposure.
Kirk argues in his petition that the medical reports
of Dr. Goldstein, Dr. McConnel and Dr. Broudy did not constitute
substantial evidence as to the compensability of the medical
expenses.
He contends that the medical evidence presented by
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Ruth Contractors was contrary to the previously established law
of the case.
We begin our analysis by stating that the ALJ did not
violate the law of the case doctrine.
KRS2 342.035 provides that
medical fees are to be reasonable and subject to regulation by
the Board.
The proper procedure to follow in adjudicating a
dispute over any medical bill is the reopening of the award.3
Under KRS 342.020(3), an employer is not required to pay for
medical treatment that does not provide a “reasonable benefit”
to the injured worker.4
Thus, it was proper for the ALJ to reopen the case.
Furthermore, our review shows that the law of the case from the
first opinion and award was followed during the adjudication of
the disputed medical expenses.
As the Board correctly pointed
out, the ALJ’s opinion and award in 1986 found that Kirk
suffered from pneumoconiosis and that Ruth Contractors was
obligated to pay such medical, surgical and hospital expenses as
would be reasonably required for the treatment of his
occupational disease.
The reopening hearing did not address
either of these questions.
In resolving the medical fee
dispute, the ALJ did not find either that Kirk did not have
2
Kentucky Revised Statutes.
3
Westvaco Corp. v. Fondaw, Ky., 698 S.W.2d 837, 839 (1985).
4
Square D. Co. v. Tipton, Ky., 862 S.W.2d 308, 310 (1993).
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pneumoconiosis or that Ruth Contractors was not responsible for
any medical expenses that were incurred as a result of treatment
for pneumoconiosis.5
The purpose of the evidentiary hearing was
not to determine whether Ruth Contractors was liable for medical
expenses related to reasonable treatment from the
pneumoconiosis, but only to determine whether the medical
expenses in dispute were related to the treatment of Kirk’s
pneumoconiosis.
Thus, the crux of the issue before us is whether Ruth
Contractors met its burden of proof in showing that the disputed
medical bills were not related to Kirk’s pneumoconiosis.
When
the decision of the fact-finder favors the party with the burden
of proof, the unsuccessful party must demonstrate on appeal that
there was no evidence of substance to support the ALJ’s finding.6
Substantial evidence has been defined as evidence of substance
and relevant consequence having the fitness to induce conviction
in the minds of reasonable people.7
In considering an appeal, the Board is to “decide
whether the evidence is sufficient to support a particular
5
In fact, even though Dr. Broudy did not believe that Kirk suffered from
pneumoconiosis, he was instructed in his deposition that for the purposes of
this hearing he was to view the medical records as if Kirk did have the
disease.
6
Special Fund v. Francis, Ky., 708 S.W.2d 641, 643 (1986).
7
Burton v. Foster Wheeler Corp., Ky., 72 S.W.3d 925, 929 (2002)(citing Smyzer
v. B.F. Goodrich Chemical Co., Ky., 474 S.W.2d 367, 369 (1971)).
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finding made by the ALJ,” and a reviewing court will overturn
the decision of the Board only if the Board misconstrued the law
or erroneously assessed the evidence so flagrantly as to cause
gross injustice.8
In this case, the Board affirmed the ALJ’s
opinion using the substantial evidence test, and correctly
pointed out that the ability of a party to point to
contradictory evidence of record is, for the most part,
irrelevant if there is substantial evidence of record supporting
the ALJ’s ultimate findings.9
As previously noted, the ALJ considered evidence from
four qualified medical experts.
Kirk’s treating physician, Dr.
Sundaram, opined that Kirk’s pneumoconiosis was the reason he
needed the disputed medical treatment.
The other three
physicians disagreed with Dr. Sundaram and stated that the
medical expenses were not related to the pneumoconiosis.
The
ALJ, as the finder of fact, has the sole power to determine
quality, character, and substance of the evidence.10
Further,
when there is conflicting evidence, as there is here, it is up
to the ALJ alone to decide which evidence to believe.11
Clearly,
there was substantial evidence to support the finding of the
8
Western Baptist Hospital v. Kelly, Ky., S.W.2d 685, 687-88 (1992).
9
See Caudill v. Maloney’s Discount Stores, Ky., 560 S.W.2d 15, 16 (1977); and
Brockway v. Rockwell International, Ky.App., 907 S.W.2d 166, 169 (1995).
10
Square D Co., 862 S.W.2d at 308.
11
Id.
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ALJ, and the mere contradiction from Kirk’s treating physician
is not enough on its own to merit a reversal of the decision of
the ALJ and the Board.
Kirk also argues that evidence from a doctor who
disagrees with the existence of the previously acknowledged
diagnosis should be minimized or disregarded.12
Hence, Kirk
contends that Dr. Broudy’s evidence should be disregarded since
he did not accept the fact that Kirk had pneumoconiosis, and
that this alone causes all of the evidence against Kirk to lack
the necessary substantive quality for a finding adverse to him.
This Court’s role on appeal of administrative matters is
strictly “one of review, not of interpretation.”13
This Court
cannot substitute its own judgment for that of the ALJ or the
Board as to the weight of the evidence.
For the foregoing reasons, the opinion of the Board is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Leonard Stayton
Inez, Kentucky
BRIEF FOR APPELLEE, RUTH
CONTRACTORS:
H. Brett Stonecipher
Lexington, Kentucky
12
Scott v. Mason Coal Company, 289 F.3d 263 (4th Cir. 2003); Peabody Coal
Company v. Graves, 277 F.3d 829 (6th Cir. 2002).
13
Kentucky Unemployment Insurance Commission v. King, Ky.App., 657 S.W.2d
250, 251 (1983).
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BRIEF FOR APPELLEE, DEPARTMENT
OF WORKERS’ COMPENSATION
FUNDS:
David W. Barr
Frankfort, Kentucky
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