P & D SOLUTIONS CORPORATION v. SHANE A. GILL; HON. A. THOMAS DAVIS, ADMINISTRATIVE LAW JUDGE; WORKERS' COMPENSATION BOARD
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RENDERED:
DECEMBER 22, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001354-WC
P & D SOLUTIONS CORPORATION
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-01199
v.
SHANE A. GILL; HON. A. THOMAS DAVIS,
ADMINISTRATIVE LAW JUDGE; WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND TAYLOR, JUDGES.
TAYLOR, JUDGE:
P & D Solutions Corporation (P & D) petitions
this Court to review an opinion of the Workers’ Compensation
Board entered May 27, 2005, which affirmed the finding of the
Administrative Law Judge (ALJ) that a proposed spinal fusion
surgery was compensable.
We affirm.
In April 2001, Gill sustained a work-related injury to
his lower back while employed by P & D.
Gill ultimately
received an award of permanent partial disability benefits based
upon a five percent (5%) impairment rating.
In March 2004, Gill filed a motion to reopen seeking
to compel P & D to pay for a spinal fusion surgery as
recommended by Gill’s treating physician, Dr. David Rouben.
P & D countered that the proposed surgery was neither reasonable
nor necessary and offered expert opinion to that effect.
In the opinion and order, the ALJ found that the
proposed spinal fusion surgery was both reasonable and necessary
for the cure and treatment of Gill’s injury.
The ALJ, thus,
found the spinal fusion surgery to be compensable.
The ALJ also
refused P & D’s request to select Gill’s treating physician.
The ALJ found that Gill was receiving reasonable treatment from
his treating physician, Dr. Rouben.
Being unsatisfied with the ALJ’s decision, P & D
sought review in the Workers’ Compensation Board (the Board).
The Board found the ALJ’s finding that the proposed spinal
fusion surgery was necessary to be supported by substantial
evidence of a probative value and affirmed the ALJ’s decision.
This review follows.
P & D contends the Board erred by affirming the ALJ’s
decision that the proposed spinal fusion surgery was
compensable.
Specifically, P & D alleges that the ALJ made
various incorrect findings of fact and failed to follow the
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proper legal precedent.
Having reviewed the record and the
applicable case law, we disagree with P & D’s position.
Kentucky Revised Statutes (KRS) 342.020(1) mandates
that medical treatment is compensable when reasonably necessary
for the cure and/or relief of a work-related injury.
Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993).
Square D
Moreover, the burden
of proving that a treatment is unreasonable is placed upon the
employer.
1991).
Nat’l Pizza Co. v. Curry, 802 S.W.2d 949 (Ky.App.
To meet such burden, the employer must show that the
treatment is unproductive or outside the type of treatment
generally accepted by the medical profession as reasonable.
Square D Co., 862 S.W.2d 308.
In this case, P & D argues the ALJ improperly found
that the proposed spinal fusion surgery was reasonable and
necessary based upon objective medical evidence.
P & D contends
that there is simply no objective medical evidence to support
the ALJ’s finding.
In the opinion, the ALJ specifically pointed out:
On November 24, 2003, Dr. David Rouben,
plaintiff’s treating physician, sent
plaintiff a letter notifying plaintiff of
the findings of a diskogram taken on the
L3-4 and L4-5 discs of plaintiff’s low back.
Dr. Rouben reported to plaintiff that his
L3-4 disks showed no evidence of overt
pathology, but that the L4-5 disk “was
consistent and reproduced your typical and
usual pain.” (Rouben 11/24/03 Letter, p.1)
Dr. Rouben concluded from the diskogram that
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the source of plaintiff’s pain is the L4-5
disk space segment. Dr. Rouben further
stated:
That having been said, we now feel
rather confident that the source
of your pain is the L4-5 disk
space segment. This corroborates
the MRI performed January 6, 2003.
To this end, the protracted period
of time that you have had to
undergo with regard to your
discomfort and pain has now come
to what I would consider
conclusion because we have
affirmed the legitimacy of your
pain and focalization of the
anatomic abnormality of your pain
as emanating from the L4-5 disk
space segment. You have failed
all prior treatment options.
There is really nothing else we
can offer to you other than a
structural stabilization and
fusion through a minimally
invasive technique.
Dr. Rouben opined that spinal fusion surgery was the only
treatment option left for Gill and that there existed a good
chance such surgery would improve Gill’s symptoms.
The ALJ
chose to rely upon the expert testimony of Dr. Rouben.
Although
there was testimony to the contrary, it was totally within the
province of the ALJ to attach more weight and credibility to the
expert opinion of Dr. Rouben.
Moreover, we cannot say that the
ALJ felt compelled to give more credence to Dr. Rouben’s
testimony because he was Gill’s treating physician.
Considering
the ALJ’s opinion as a whole, it is clear the ALJ properly
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considered the opinion of each expert and found Dr. Rouben’s
testimony most persuasive.
Simply put, the record does not
compel a finding that the proposed spinal fusion was unnecessary
for the cure and/or relief of Gill’s injury.
P & D also complains the ALJ made various incorrect
findings of fact; for instance, P & D disputes the finding that
Gill’s two treating physicians agreed that diagnostic studies
indicated surgical treatment was necessary.
Even if P & D were
correct, the record, nonetheless, supports the ALJ’s finding
that the proposed spinal fusion surgery was reasonable and
necessary for the cure and treatment of Gill’s injury.
Accordingly, we hold the Board properly affirmed the ALJ’s
decision that the proposed spinal fusion surgery be compensable.
See Western Baptist Hosp. v. Kelly, 827 S.W.2d 685 (Ky. 1992).
For the foregoing reasons, the opinion of the Workers’
Compensation Board is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Vonnell C. Tingle
FULTON & DEVLIN
Louisville, Kentucky
BRIEF FOR APPELLEE SHANE A.
GILL:
Robert L. Catlett, Jr.
SALES, TILLMAN, WALLBAUM,
CATLETT & SATTERLEY, LPPC
Louisville, Kentucky
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