ERIC SMITH TWIN PINES, INC.; AIG CLAIMS SERVICES, INC.; HON. HOWARD E. FRASIER JR., ADMINISTRATIVE LAW JUDGE; and WORKERS' COMPENSATION BOARD
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RENDERED:
OCTOBER 6, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2006-CA-000439-WC
ERIC SMITH
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-96-06851 & WC-96-08146
TWIN PINES, INC.; AIG CLAIMS
SERVICES, INC.; HON. HOWARD E.
FRASIER JR., ADMINISTRATIVE LAW
JUDGE; and WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON AND VANMETER, JUDGES; KNOPF,1 SENIOR JUDGE.
VANMETER, JUDGE:
Eric Smith petitions for the review of an
opinion of the Workers’ Compensation Board, which affirmed the
decision of an Administrative Law Judge (ALJ).
Smith argues
that the ALJ erred by finding his medical expenses for both
physical and psychological treatment were noncompensable on the
reopening of his claim.
1
For the following reasons, we affirm.
Senior Judge William L. Knopf, sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
Smith suffered a work-related injury on June 5, 1996,
and immediately began experiencing low back pain.
His workers’
compensation claim with Twin Pines was settled in May 1997,
whereby he received $93.59 per week for a 30% permanent partial
disability.
In March 2002, after he began experiencing leg
pain, Smith underwent a microdiscectomy at L5-S1.
He testified
that this surgery alleviated 80% of his leg pain for about six
months.
Twin Pines eventually reimbursed Smith’s private health
insurance for this surgery and paid him for a period of
temporary total disability benefits.
When Dr. John Gilbert recommended that Smith undergo a
lumbar fusion in January 2004, the matter was submitted for a
Utilization Review.
In August 2004, after several doctors
expressed opinions as to whether the lumbar fusion was
necessary, Smith filed a Form 112, a Medical Fee Dispute, and a
motion to reopen seeking authorization for payment of the
proposed surgery.
Smith further complained that Twin Pines had
declined to pay charges incurred for his physical and
psychological care.
Three days after initiating the reopening,
Smith proceeded with the lumbar fusion from L4-S1.
Smith
testified that this surgery alleviated his leg pain 100%.
After Smith’s claim was reopened, an ALJ found that
the lumbar fusion was not related to Smith’s work-related injury
and thus was not compensable.
The ALJ also found that Smith’s
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psychological treatment was not compensable.
The Board
affirmed, and this petition for review followed.
The ALJ relied on Dr. Timothy Kriss’s opinion in
finding that Smith’s lumbar fusion was noncompensable.
Smith
argues that the ALJ erred in so finding, because Kriss opined
that the lumbar fusion was “medically reasonable and necessary,
simply because it worked and worked well.”
We disagree.
Pursuant to KRS 342.020(1), an employer
shall pay for the cure and relief from the
effects of an injury or occupational disease
the medical, surgical, and hospital
treatment, including nursing, medical, and
surgical supplies and appliances, as may
reasonably be required at the time of the
injury and thereafter during disability[.]
As Smith points out, this court has previously discussed the
applicable rule as having “been referred to as the direct and
natural consequence rule[:]”2
The basic rule is that a subsequent injury,
whether an aggravation of the original
injury or a new and distinct injury, is
compensable if it is the direct and natural
result of a compensable primary injury.
Thus, to be compensable, medical expenses must not only be
medically reasonable and necessary, but they must also be caused
by a work-related injury.
An employer may challenge the
compensability of a medical expense based on reasonableness,
2
Addington Resources, Inc. v. Perkins, 947 S.W.2d 421, 423 (Ky.App. 1997)
(quoting Larson, Workmen's Compensation Law § 13.11 (1996)).
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necessity, or work-relatedness3 and has the burden of proof when
doing so.4
Here, the ALJ found that Smith’s surgery was
noncompensable because it was not caused by his work-related
injury.
We turn, then, to the issue of whether the ALJ’s
decision was supported by substantial evidence.5
Dr. Kriss noted in his medical report that the
objective changes which led to Smith’s surgeries were left S1
nerve root compression and left L5-S1 disc herniation, which
were not caused by Smith’s 1996 work-related injury.
Dr. Kriss
reasoned that
any such permanent structural objective
change should have been readily evident with
the “gold standard” lumbar myelogram/post
myelogram CT scan test performed a year and
a half after [Smith’s] accident (which is
more than enough time for any permanent
structural changes due to the work injury to
manifest).
However, a November 1997 myelogram and post-myelogram CT scan
did not indicate “any significant structural problem with the
discs on the left.”
Thus, Dr. Kriss opined that the structural
change was “a consequence of naturally occurring degenerative
change in the many years since the 1996 injury,” rather than a
consequence of the injury itself.
3
Cantrell Supply, Inc. v. Liberty Mutual Ins. Co., 94 S.W.3d 381, 386
(Ky.App. 2002).
4
Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993).
5
Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.App. 1984).
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By contrast, Dr. John Gilbert opined that the
conditions giving rise to Smith’s surgeries were caused by his
1996 work injury.
As there was conflicting medical evidence,
the question of which evidence to believe was within the ALJ’s
exclusive province.6
An ALJ “has the sole authority to determine
the quality, character, and substance of the evidence.”7
The ALJ
here chose Dr. Kriss’s opinion, which constituted substantial
evidence.
Specifically, the ALJ expressed that he found Dr.
Kriss’s conclusions regarding causation more credible than Dr.
Gilbert’s conclusions because Dr. Kriss first examined Smith
after his work-related injury and prior to any surgeries.
On
the other hand, Dr. Gilbert did not treat Smith until 2003, some
seven years after his work-related injury, and he had to rely
heavily on Smith’s medical history as opposed to objective
medical findings.
This court’s holding in Addington Resources, Inc. v.
Perkins8 does not compel a different result.
The claimant in
Addington suffered a work-related injury in 1990 and underwent a
“diskectomy with fusion of vertebra at the C5-C6 level.”9
in 1995, after a normal recuperation period, the claimant
6
Square D Co. v. Tipton, 862 S.W.2d 308, 309 (Ky. 1993).
7
Id.
8
947 S.W.2d 421 (Ky.App. 1997).
9
Id. at 422.
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Then
suffered a nonwork-related injury at the C6-C7 level of the
vertebra.10
This court affirmed the ALJ’s conclusion that
medical expenses incurred as a result of the second injury were
related to the first injury.11
In so concluding, the ALJ
accepted a doctor’s testimony that
were it not for the original injury at C5-6
and the subsequent surgery that resulted
therefrom Mr. Perkins would not have had the
significant degenerative changes at C6-7
causing the current compression that is the
result of his current symptoms. . . . [H]is
present herniated disc is related to his
original work injury.12
Here, by contrast, the ALJ accepted Dr. Kriss’s opinion that the
degenerative changes Smith experienced were not related to his
work injury.
Accordingly, we cannot say that the Board erred by
affirming the ALJ’s decision.
Next, Smith argues that the Board erred by affirming
the ALJ’s decision that Smith’s psychological treatment was not
compensable.
Smith’s entire argument in this regard is as
follows:
As to medical treatment for anxiety
and/or depression, the Employer had paid for
prescriptions in the past, and it was only
after the 2004 surgery that they stopped.
Because the need for those prescriptions is
for the effects of the compensable injury,
10
Id.
11
Id. at 423.
12
Id. at 422.
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the Employer is still responsible for
providing them at their expense.
We disagree.
Following an independent medical evaluation of Smith,
Dr. David Shraberg diagnosed him with “Adjustment Disorder of
Adult Life associated with the injury of June 5, 1996 resolved”
and “Opiate dependency, chronic.”
Dr. Shraberg assessed Smith’s
psychiatric impairment at 0% and further opined that Smith did
not require any psychiatric treatment.
We cannot say that the
Board erred by affirming the ALJ’s decision to accept Dr.
Shraberg’s opinion and find Smith’s psychiatric bills
noncompensable.
Nor does the fact that Twin Pines may have
previously paid for some of Smith’s psychiatric-related
prescriptions compel a different result.
The Workers’ Compensation Board’s opinion is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE TWIN PINES:
McKinnley Morgan
Donald G. Smith
London, Kentucky
Hon. Ronald J. Pohl
Lexington, Kentucky
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