GENERAL ELECTRIC v. BARBARA LEWIS; HON. MARCEL SMITH, ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
SEPTEMBER 16, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001015-WC
GENERAL ELECTRIC
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-01210
BARBARA LEWIS;
HON. MARCEL SMITH,
ADMINISTRATIVE LAW JUDGE; and
WORKERS' COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE.
ROSENBLUM, SENIOR JUDGE:
1
General Electric (GE) has petitioned
for review of an opinion of the Workers' Compensation Board
(Board) entered on April 15, 2005, which affirmed an opinion and
award of the administrative law judge (ALJ) rendered November 9,
2004, determining that surgery performed on Barbara Lewis'
1
Senior Judge Paul W. Rosenblum 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.
(Lewis) left ankle was compensable under Kentucky Revised
Statutes (KRS) 342.020.
Before us, GE contends that the Board erred in not
remanding the case to the ALJ to enter a revised opinion
indicating that the disputed medical condition is not
compensable, arguing that 1) the medical report relied on by the
ALJ, which provided the sole evidence of causation, was not
properly filed as evidence pursuant to 803 Kentucky
Administrative Regulations (KAR) 25:012, and alternatively, 2)
the ALJ's decision as to causation is not based on substantial
evidence.
Our standard of review of a decision of the Board "is
to correct the Board only where the Court perceives 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, 827 S.W.2d 685, 687-88 (Ky. 1992).
Having reviewed
the Board's application of the law and the evidence, we conclude
that the Board committed no error.
Lewis was born March 15, 1950.
twenty years, beginning in March, 1977.
She worked for GE for
While in GE's employ
she sustained several injuries which were compensated by GE as
work-related -- right knee (1994); left ankle (1995); right
shoulder (1996), and carpal tunnel.
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At issue herein is the 1995 injury to the left ankle.
Lewis tripped over a wire basket containing parts and the injury
to her left ankle caused her to be off work for several weeks.
She was eventually diagnosed with a stress fracture and put in a
cast.
Over the next few years, she had flare-ups of pain which
were treated unsuccessfully with orthotics, stockings, casting,
nonsteroidal anti-inflammatories, and cortisone injections.
When she became unable to walk or sustain balance she
sought help from Dr. John Sanders (Dr. Sanders) who performed
surgery to insert a screw in her left ankle.
According to an
independent medical examination (IME) and medical records review
conducted by Dr. Martyn Goldman (Dr. Goldman) for GE and filed
in the record herein, Dr. Sanders' records indicate that he
recommended ankle surgery as a direct result of Lewis' 1995 work
injury, where the "(p)atient experienced injury directly to the
posterior tibial tendon navicular area."
In Dr. Sanders' post-
operative report (filed by Lewis in this record as an attachment
to her initiating motion to reopen and motion for fee dispute),
Lewis had reported to Dr. Sanders a history of "chronically
painful left foot and ankle, secondary to a previous injury,
which had caused continued irritation."
(emphasis added).
did not challenge the compensability of the surgery or the
medication to treat a rash following the surgery.
-3-
GE
Although she did not have any additional injuries to
the ankle, Lewis' pain continued and Dr. Sanders recommended a
second surgery to remove the left ankle screw.
second opinion from her knee physician.
Lewis sought a
He referred her to Dr.
Mark Petrik (Dr. Petrik), and both of these doctors concluded
that Lewis needed surgery on her left ankle.
Dr. Petrik, in a
report filed in the record by Lewis, indicated that the original
surgery by Dr. Sanders was "to try to correct an acquired
progressive flatfoot problem which she reported evolved while
she was still working, and which apparently has been accepted as
a work-related issue."
(emphasis added).
Dr. Petrik performed
the second surgery, removing the original screw, reconstructing
the ankle, and putting in additional screws.
As the issue became whether GE was going to provide
coverage for this second ankle surgery as related to the 1995
injury, Lewis was seen by Dr. Goldman.
Dr. Goldman's medical
records review appeared to corroborate Lewis' later deposition
testimony that she had not had any additional injury to the left
ankle since the initial work injury.
But, based on the medical
records review and the IME, Dr. Goldman concluded that her
current medical condition was unrelated to her 1995 left ankle
work injury:
(Lewis' current medical) condition . . . is
not uncommon in overweight women who have a
genetic predisposition to flatfoot as well.
-4-
Based on Dr. Goldman's conclusion, GE denied coverage for the
second surgery.
In order to resolve the fee dispute with GE for the
second surgery, Lewis, pro se, filed the appropriate pleadings
(motion for fee dispute and motion to reopen) with the
Department of Workers' Claims and the case proceeded.
Lewis
filed as an attachment to her motion Dr. Sanders' operative
report on her first surgery which linked the causation to a
previous injury, and later filed the operative report from Dr.
Petrik on the second surgery detailing removal of the screws
from the first surgery and reconstruction on the same area.
responded with Dr. Goldman's IME report.
GE
Lewis' deposition was
also filed in the record.
On November 9, 2004, the ALJ rendered the following
findings of fact and conclusions of law:
Having reviewed the record in its
entirety, I am more persuaded by the medical
opinions expressed by Dr. Sanders and find
that the disputed surgery is compensable
under KRS 342.020. Dr. Sanders gave an
opinion on causation which is supported by
his objective medical findings and the
findings in surgery made by Dr. Petrik.
GE filed a petition for reconsideration, arguing that
the ALJ erred in considering Dr. Sanders' report, specifically
contending for the first time that as the report was only filed
as an attachment to Lewis' initial pleadings it was never
-5-
entered into evidence.
Alternatively, GE argued that Dr.
Sanders' report did not establish causation.
On December 7,
2004, the ALJ denied the petition, stating:
The report of Dr. Sanders is properly made
part of the evidence by plaintiff. This
report sets out Dr. Sander's [sic] opinions
regarding causation sufficiently to support
the findings.
GE appealed these issues to the Board.
On April 15,
2005, the Board affirmed the decision of the ALJ, concluding
that Dr. Sanders' report was properly included in the record as
an expert opinion supporting the filing of Lewis' initial motion
pursuant to 803 KAR 25:012; and did not violate 803 KAR 25:010 §
14(2) (or its reference to KRS 342.033), which states as
follows:
Any party may file as evidence before the
administrative law judge pertinent material
and relevant portions of hospital,
educational, Office of Vital Statistics,
Armed Forces, Social Security, and other
public records. An opinion of a physician
which is expressed in these records shall
not be considered by an administrative law
judge in violation of the limitation on the
number of physician's opinions established
in KRS 342.033.
The Board also found that the ALJ had the sole authority to
weigh the conflicting evidence between GE's Dr. Goldman and
Lewis' Dr. Sanders as to causation, and the ALJ's reliance on
Dr. Sanders' report provided substantial evidence of record.
This petition for review followed.
-6-
We agree with the Board's conclusion that 803 KAR
25:010 § 14(2) is dispositive of GE's first issue.
In
accordance with 803 KAR 25:012 § 1(3)(a), Lewis filed her motion
for fee dispute and reopening accompanied by "(n)ecessary
supporting expert testimony," which was Dr. Sanders' report.
While 803 KAR 25:010 § 14(1) provides that the Kentucky Rules of
Evidence (KRE) apply in proceedings before an administrative law
judge, the regulation also allows statutory and regulatory
exceptions, such as 803 KAR 25:010 § 14(2), which provides that
any party can file as evidence before the ALJ pertinent
materials and relevant portions of hospital records.
controls the taking and presentation of proof.
The ALJ
See generally
Big Sandy Community Action Program v. Chaffins, 502 S.W.2d 526,
530 (Ky. 1973).
The ALJ's acceptance of Dr. Sanders' report as
evidence was properly based on the above regulation.
It is worth noting that although GE claims that it
had no opportunity to rebut Dr. Sanders' report because the
report was not introduced into evidence, GE was aware of Dr.
Sanders' report because GE's proof in this case, Dr. Goldman's
IME and medical report, contained the causation language from
Dr. Sanders' report.
Additionally, in GE's response to Lewis'
motion to reopen, GE concedes:
In July of 2002, Dr. John Sanders
recommended surgery on the claimant's left
foot. He related the need for surgery to
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the work injury. [GE] did not challenge the
compensability of that procedure and, in
fact, paid for the foot surgery.
Subsequently, [GE] also authorized and paid
for orthotics for the left foot.
On our review, we fail to see that the Board has erred by
overlooking or misconstruing controlling authority.
In the alternative, GE argues that even if the ALJ
properly considered Dr. Sanders' report, the report does not
establish causation of the disputed injury and resulting
expenses.
We agree with the Board's conclusion that the report
provided substantial evidence to support the ALJ's decision:
Dr. Sanders' report states "[t]he patient
presented to the office with chronically
painful left foot and ankle, secondary to
previous injury, which had caused continued
irritation to the posterior tibial pyramid."
The need for surgery was the pre-operative
diagnosis of "[p]osterior tibial dysfunction
with collapse of medial column-left foot
ankle, secondary to injury."
Lewis' deposition indicates that her only ankle injury was the
1995 one sustained at GE, and that she never further injured it.
Dr. Sanders' report refers to a previous ankle injury.
Although
GE's medical evidence differed, because the ALJ had the sole
authority to weigh the conflicting medical evidence as to
causation, and since the ALJ's decision was based on substantial
evidence, upon our review we fail to see how the Board
"committed an error in assessing the evidence so flagrant as to
cause gross injustice."
Western Baptist Hospital, supra; see
-8-
generally Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418
(Ky. 1985); and Special Fund v. Francis, 708 S.W.2d 641 (Ky.
1986).
For the foregoing reasons, the opinion of the Workers'
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Douglas A. U'Sellis
Louisville, Kentucky
Barbara A. Lewis, pro se
Louisville, Kentucky
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