TINA TEETER v. UNITED PARCEL SERVICE; WORKERS' COMPENSANTION BOARD; AND HON. IRENE STEEN, ADMINISTRATIVE LAW JUDGE
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RENDERED:
DECEMBER 9, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000900-WC
TINA TEETER
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-00-67095
v.
UNITED PARCEL SERVICE; WORKERS'
COMPENSANTION BOARD; AND HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TAYLOR AND VANMETER, JUDGES; POTTER, SENIOR JUDGE. 1
TAYLOR, JUDGE:
Tina Teeter seeks review of an opinion of the
Workers’ Compensation Board entered April 1, 2005, affirming the
Administrative Law Judge’s (ALJ) dismissal of her claims for
workers’ compensation benefits as a result of two separate
injuries.
1
We affirm.
Senior Judge John W. Potter sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Teeter was allegedly injured on two separate occasions
while working for United Parcel Service (UPS).
The first injury
was purportedly sustained on September 8, 2000, when she was
moving package containers from a dolly to a static rack on
rollers.
The other injury allegedly occurred on October 15,
2002, when she was placing boxes on a conveyor belt.
The first
injury resulted in an onset of pain in her neck and right
shoulder; the second injury affected her left shoulder.
As a result of the injuries, Teeter filed two claims
for workers’ compensation benefits alleging she suffered
permanent disability as a result of the injuries.
On October
20, 2004, the ALJ entered an opinion and order dismissing
Teeter’s claims.
The ALJ found that Teeter failed to prove she
suffered from work-related injuries which caused permanent
disability.
The ALJ further found that Teeter was not entitled
to future medical expenses for treatment from Dr. Michael
Cassaro.
Being unsatisfied with the decision of the ALJ, Teeter
sought review in the Workers’ Compensation Board (the Board).
By opinion entered April 1, 2005, the Board affirmed the ALJ,
thus precipitating our review.
Teeter initially contends the ALJ erred by failing to
award her a 12% and a 7% permanent disability impairment ratings
based upon the opinion of the university medical evaluator.
Essentially, Teeter argues the ALJ erred by failing to award
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benefits based upon the impairment ratings assigned by the
university medical evaluator.
As pointed out by the Board, the law is well-settled
that a petition for reconsideration must be filed contesting the
ALJ’s finding of fact to preserve the issue for appellate
review.
Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985);
Halls Hardwood Floor Co. v. Stapleton, 16 S.W.3d 327 (Ky.App.
2000).
In this case, Teeter filed a petition for
reconsideration but only alleged the ALJ erred by failing to
award future medical expenses.
As Teeter failed to specifically
contest the ALJ’s finding that Teeter did not suffer permanent
impairment as a result of the alleged work-related injuries,
this issue was not properly preserved for appellate review.
Teeter also asserts the ALJ committed error by finding
that she was not entitled to future medical expenses for Dr.
Cassaro’s ongoing treatment.
Under Kentucky Revised Statutes
(KRS) 342.020, medical expenses reasonably necessary for the
cure and relief of a work-related injury are compensable.
Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
In her opinion and order, the ALJ specifically found:
As we know, Dr. Cassaro has treated
Plaintiff with multiple injections of
various kinds and Plaintiff stated that she
went every two weeks for these injections
and would not be able to maintain her
-3-
ability to work were it not for these
injections. Dr. Cassaro felt that Plaintiff
should continue with his injection treatment
for the next 3-5 years.
The evidence from the Defendants is
very much different from Dr. Cassaro’s
opinions, especially the deposition from Dr.
Baker which speaks volumes of his thoughts
on Plaintiff’s current treatment. In
addition, he also commented about the
various complaints that Plaintiff had, as
well as her inconsistent efforts during the
FVC, particularly her grip tests. Dr. Baker
was very concerned that when he lightly
palpated Plaintiff’s neck on the right side,
she experienced pain and symptoms in her
right foot. Likewise, when he flexed
Plaintiff [sic] right arm, she experienced
numbness in all five fingers of that hand.
He additionally felt that headaches would
not be a regularly associated problem from a
shoulder injury. Instead, he felt that
Plaintiff’s headaches would more likely be
the result of tension.
Due to the diversity of the medical
evidence in this claim, this ALJ chose to
send Plaintiff for a university evaluation,
which was performed by Dr. Martyn Goldman.
His overall opinion was that Plaintiff did
indeed have a functional impairment to both
shoulders, but that it was not related to
the injuries herein. Additionally, he
commented on the ongoing treatment Plaintiff
was receiving from Dr. Cassaro and felt
these to be totally unnecessary. I noted
that in addition to the various MRI’s
Plaintiff had had of her shoulder, she also
underwent EMG/NCV studies, which were
normal, and MRI’s of her cervical and
thoracic spine, which were also normal.
Additionally, I am persuaded, in spite of
Plaintiff’s testimony to the contrary, that
her ongoing treatment with Dr. Cassaro is
medically unnecessary and unreasonable.
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Based upon the evidence submitted by Dr. Robert Baker
and Dr. Martyn Goldman, we are of the opinion the ALJ’s finding
that the ongoing medical treatment of Dr. Michael Cassaro was
medically unnecessary and unreasonable is supported by
substantial evidence of a probative value.
Therefore, we cannot
say the Board committed error by affirming the ALJ’s decision to
deny Teeter compensation for future medical treatment with Dr.
Cassaro.
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
VANMETER, JUDGE, CONCURS.
POTTER, SENIOR JUDGE, CONCURS IN PART, DISSENTS IN
PART, AND FILES SEPARATE OPINION.
POTTER, SENIOR JUDGE, CONCURRING IN PART AND
DISSENTING IN PART:
I concur with the majority in upholding the
Board’s denial of expenses for future medical treatment by Dr.
Cassaro.
However, I would emphasize that the majority applied
the principle that “medical expenses reasonably necessary for
the cure and relief of a work-related injury are compensable.”
It did not address Board Member Young’s contention that those
injuries must cause a permanent impairment before future medical
benefits can be awarded.
I believe that the Board improperly held that
abbreviated nature of Teeter’s petition for reconsideration
-5-
prevented the Board from considering whether the ALJ’s finding
that there was no disability was supported by the evidence.
Only errors which are “patent on the face of the award” need be
reargued by a motion to reconsider to preserve them for appeal.
Eaton Axle Corp. v. Nally, 688 S.W.2d 334 (Ky. 1985)(failure to
make findings of an essential fact).
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Wayne C. Daub
Louisville, Kentucky
James G. Fogle
Denis S. Kline
FERRERI & FOGLE
Louisville, Kentucky
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