KELVIN CORPORATION VS. COMP NAVA-GARCIA (ALEJANDRO), ET AL.
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RENDERED: APRIL 1, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-001362-WC
KELVIN CORPORATION
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-08-95291
ALEJANDRO NAVA-GARCIA; HON.
GRANT S. ROARK,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND KELLER, JUDGES; ISAAC,1 SENIOR JUDGE.
ISAAC, SENIOR JUDGE: Kelvin Corporation petitions for review of an opinion
and order of the Workers’ Compensation Board affirming an Administrative Law
Judge’s (ALJ) finding that Kelvin had failed to prove an affirmative defense under
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Senior Judges Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
Kentucky Revised Statutes (KRS) 342.035(3). Kelvin asserts that its former
employee, Alejandro Nava-Garcia, unreasonably refused to have additional
surgery and was therefore not entitled to receive workers’ compensation benefits
based on a 12% impairment rating.
Alejandro Nava-Garcia was employed as a laborer for Kelvin, a cooperage
company, unloading whiskey barrels which weigh approximately 150 pounds. On
February 18, 2008, his right hand was crushed and the tip of the index finger
amputated when some barrels rolled from a trailer and pinned his hand against
another barrel. Nava-Garcia was immediately taken to Jewish Hospital in
Louisville where Dr. Huey Tien, an orthopedic hand specialist, performed
emergency surgery. Nava-Garcia underwent physical therapy following the
surgery. He missed approximately sixteen days of work before returning to a onehanded position. On October 10, 2008, Dr. Tien released him to return to his
regular job without any restrictions. Nava-Garcia was terminated from his
employment in mid-January 2009 when Kelvin learned that he was an illegal
immigrant.
Nava-Garcia continued to experience pain and limited finger flexion. He
was last treated by Dr. Tien on December 5, 2008. Dr. Tien’s notes stated that
Nava-Garcia had some loss of grip strength and that he might need surgery in the
future to improve his range of motion. Dr. Tien discussed the possibility of a
second surgery with Nava-Garcia. He stated that if Nava-Garcia decided not to
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have surgery, the assessment of a permanent impairment rating would be
appropriate.
Nava-Garcia underwent an independent medical evaluation (IME) with Dr.
Warren Bilkey on February 5, 2009. Dr. Bilkey stated that
[t]oday’s evaluation does not point to any further
treatment need for Mr. Garcia. . . . It is pertinent
however to point out that Dr. Tien has advised there may
be future need for surgery to try to improve range of
motion of the fingers. One cannot at this point in time
project accurately when or the extent to which such
health care services will be necessary.
Dr. Bilkey testified that there are risks associated with any surgery and that no
physician could guarantee a 100% success rate. He stated that if the additional
surgery was successful, it should decrease Nava-Garcia’s current impairment
rating. He further testified that, in reviewing Dr. Tien’s notes, he did not find any
statements specifically recommending another surgery.
Nava-Garcia also underwent an IME with Dr. Richard DuBou, a hand
surgeon, on February 12, 2009. Dr. DuBou assigned Nava-Garcia a 12% whole
person impairment rating. He recommended that Nava-Garcia should undergo a
tenolysis and joint release of his middle and ring fingers. Dr. DuBou stated that
the surgery was low risk and had the possibility of significantly improving NavaGarcia’s condition. Dr. DuBou opined that if the surgery was successful, it was
likely to reduce Nava-Garcia’s impairment rating to 8%.
A final hearing was held on April 9, 2009. Nava-Garcia testified that he did
not want to undergo the surgery because no physician could guarantee that it will
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resolve his remaining complaints. He also stated that Dr. Tien told him that, by
and large, another surgery would be “useless” and would not necessarily result in
his hand getting “any better.”
The ALJ ruled in Nava-Garcia’s favor, determining that the injury had
resulted in a permanent partial disability rating of 12% under Kentucky Revised
Statutes (KRS) 342.730(1)(b). The ALJ further found that Nava-Garcia lacked the
physical capacity to return to the type of work he was performing at the time of the
injury. Noting that Nava-Garcia has only a sixth-grade education, the ALJ ordered
his award to be enhanced by the 3.4 multiplier under KRS 342.730(1)(c)1 and
(c)(3).
Kelvin argued that the injury was not compensable under KRS 342.035(3)
because Nava-Garcia unreasonably refused to have the additional surgery. The
statutory provision states in pertinent part as follows:
No compensation shall be payable for the death or
disability of an employee if his or her death is caused, or
if and insofar as his disability is aggravated, caused, or
continued, by an unreasonable failure to submit to or
follow any competent surgical treatment or medical aid
or advice.
KRS 342.035(3). Kelvin argued that Nava-Garcia’s award of benefits should be
based on the 8% impairment rating he would likely have if he underwent the
surgery successfully.
The ALJ rejected Kelvin’s attempt to raise the affirmative defense and
explained his reasoning as follows:
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The Administrative Law Judge notes that there are
always risks associated with even the simplest surgeries
and there is no guarantee of a successful outcome.
Within this context, it is determined plaintiff has not
unreasonably refused the recommended surgery because
of the inherent risks coupled with the uncertainty of
success.
Kelvin appealed this ruling to the Workers’ Compensation Board, which
held that the ALJ had not reviewed the facts under the appropriate standard and
that “[a] wholesale application of the ALJ’s reasoning would render the refusal of a
surgical procedure, pro facto, reasonable.” The Board outlined the elements
necessary to establish an affirmative defense pursuant to KRS 342.035(3). The
employer must show 1) that the claimant failed to follow medical advice; 2) the
failure to follow the advice was unreasonable; and 3) whether such unreasonable
behavior had in fact caused the disability. Luttrell v. Cardinal Aluminum, 909
S.W.2d 334, 336 (Ky.App. 1995). The Board remanded the matter to the ALJ for
further findings and analysis in conformity with this standard.
On remand, the ALJ again ruled in Nava-Garcia’s favor, finding that his
refusal to have surgery was not unreasonable. The ALJ’s opinion stated in
pertinent part as follows:
The record establishes that medical experts are in general
agreement in favor of the additional hand surgery
proposed by Dr. Tien, and they have opined it offers a
reasonable prospect of relief of plaintiff’s disability. . . .
However, although Dr. DuBou and Dr. Bilkey indicated
the proposed surgery is low risk, neither would go so far
as to testify that it is free from danger to life and health,
and there is no other medical opinion of record
establishing the proposed surgery is free from danger to
life and health, which is an essential element of the
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defendant’s affirmative defense. . . . Given that there is
no evidence that the proposed surgery is free from danger
to plaintiff’s life and health, and given plaintiff’s own
testimony that he is simply not comfortable undergoing a
second surgery when the first one did not eliminate his
pain, it is determined that the defendant has not carried
its burden of proof on its affirmative defense as the
Administrative Law Judge remains unconvinced the
proposed surgery is wholly free from danger.
Kelvin again appealed the ALJ’s decision to the Board. The Board ruled
that, because the ALJ had applied the correct standard on remand, it was required
to employ the highly deferential standard of review which is accorded to an ALJ’s
findings of fact. The Board concluded:
Based on our review of the evidence, the ALJ was correct
in his determination there is no direct medical testimony
characterizing the second surgical procedure to be wholly
“free from danger to life and health and extraordinary
suffering.” Luttrell v. Cardinal Aluminum Co., 909
S.W.2d at 336. While the ALJ might have reasonably
inferred that finding from expert depictions of the
proposed surgery as being relatively “low risk,” given his
wide ranging discretion to interpret the evidence as fact
finder, we cannot say he was compelled to do so as a
matter of law. Rather, in the absence of any direct
testimony addressing the question, we believe the ALJ
was free to reasonably reject the medical testimony
downplaying the extent of the danger involved, thereby
concluding Kelvin failed to satisfactorily prove an
essential element of its affirmative defense as required
pursuant to 342.035(3).
On appeal, Kelvin argues that the Board and the ALJ disregarded precedent
which holds that the fact-finder cannot disregard expert medical opinions, in this
case, that the surgery posed little risk; and that the Board committed an error
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amounting to gross injustice by allowing the ALJ to reach a conclusion that
contradicted his specific factual findings.
Our standard of review requires us to show deference to the rulings of the
Board.
The function of further review of the WCB in the Court
of Appeals 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 Hosp. v. Kelly, 827 S.W.2d 685, 687-688 (Ky. 1992).
Kelvin argues that the ALJ’s decision on remand cited no testimony nor
made any factual findings from the medical evidence that the proposed surgery
presented any special or unusual risk other than that normally associated with any
surgical procedure. Consequently, Kelvin argues, the ALJ’s second decision was
basically the same as the first -- that because no surgery is ever risk free, the
refusal of surgery can never be deemed an unreasonable failure to follow
competent medical advice. Kelvin asserts that the potential damage to health and
life must be greater than that inherent to any surgery.
We are unaware of any requirement that the proposed surgery must
present a special or unusual risk in order to be deemed unreasonable. Our review
of the caselaw shows that the Board’s opinion, which was based on deference to
the ALJ’s role as the fact-finder and the absence of evidence regarding the possible
dangers of the surgery, was well founded.
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The determination of whether the failure to follow
medical advice is unreasonable is a question of fact for
the ALJ. Fordson Coal Co. v. Palko, 282 Ky. 397, 138
S.W.2d 456 (1940). Refusal to submit to treatment is
unreasonable if it “is free from danger to life and health
and extraordinary suffering, and, according to the best
medical or surgical opinion, offers a reasonable prospect
of restoration or relief from the disability.” Id.
Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334, 336 (Ky.App. 1995).
In Nava-Garcia’s case, there was no direct medical testimony characterizing
the surgery as “free from serious suffering or danger.” United Elec. Coal. Co. v.
Adams, 299 S.W.2d 246, 247 (Ky. 1956). Furthermore, as Nava-Garcia has
pointed out, there was even some disagreement among the medical experts as to
the extent of the proposed surgery, with Dr. DuBou recommending a more
intensive procedure than that discussed by Dr. Tien.
“[A]n injured employee’s refusal to submit to an operation is unreasonable if
it appears the operation is of a simple character, not involving serious suffering or
danger and will result in substantial physical improvement.” Id. In this case, there
was no consensus that the surgery would result in a substantial improvement. Dr.
DuBou stated only that there was a “possibility” of significant improvement as a
result of the surgery. Kelvin has stressed that before his termination, Nava-Garcia
had returned to work at his regular job where his performance was “capable.” Nor
was there any medical evidence that the surgery was free from danger to life and
health.
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Under our deferential standard of review, we cannot say that the Board
misconstrued the statutes or that its assessment of the evidence was so flagrant as
to cause gross injustice.
Accordingly, we affirm the opinion of the Board.
CLAYTON, JUDGE, CONCURS.
KELLER, JUDGE, CONCURS AND FILES SEPARATE OPINION.
KELLER, JUDGE, CONCURRING: I concur with the majority’s wellreasoned opinion. However, I write separately to reiterate the evidence cited by
the Board in its first opinion that:
Dr. Tien limited his explanation for the recommended
surgery to being that of a “possible option,” the election
of which was left solely within the discretion [of] his
patient. While Dr. DuBou recommended that NavaGarcia undergo additional surgery, he couched the
entirety of his testimony in terms of the “possibility” of
success and improvement. While Dr. Bilkey conceded
that surgery would not be unreasonable, he likewise
stated that based on the results of his evaluation NavaGarcia was at maximum medical improvement, he saw
no need for further treatment and he saw nothing in Dr.
Tien’s medical notes specifically recommending another
surgery.
Faced with that medical evidence, Nava-Garcia's refusal to undergo
additional surgery was not unreasonable. Therefore, the ALJ's opinion, although
perhaps couched in other terms, is supported by evidence of substance and cannot
be disturbed on appeal. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky.
App. 1984).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
C. Patrick Fulton
Louisville, Kentucky
Ched Jennings
Louisville, Kentucky
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