AMERICAN NURSING CARE, INC. V. MARY ANN JENKINS, ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
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RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
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AMERICAN NURSING CARE,- INC.
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-002093-WC
WORKERS' COMPENSATION BOARD NO. 06-88542
MARY ANN JENKINS;
HONORABLE DOUGLAS W. GOTT,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (ALJ) determined in this medical fee
dispute that the need for the proposed surgery resulted from the claimant's
work-related injury. The Workers' Compensation Board (Board) affirmed. the
decision and the Court of Appeals affirmed the Board. The employer appeals,
asserting that the ALJ erred by finding the procedure to be compensable in the
absence of sufficient evidence of medical causation.
We affirm . The finding of causation was reasonable under the evidence
and properly affirmed on appeal.
The claimant worked for the defendant-employer as a home health nurse.
She filed an application for benefits in which she alleged two work-related
injuries . At issue presently is a left shoulder injury sustained in a fall that
occurred on February 5, 2005 . 1 After being treated initially at the Concentra
Medical Center, the claimant came under the treatment of Dr. Hoblitzell, an
orthopedic surgeon, in March 2005.
Dr. Hoblitzell diagnosed a chronic cervicothoracic strain, bilateral
shoulder strain, and left elbow strain/ contusion. A bone scan that he ordered
suggested arthritis in the shoulders. His records indicate that the initial
shoulder complaints were diffuse and appeared to concern the trapezial area
and scapula. He noted in February 2006, however, that the claimant's pain
seemed to be localizing in the subacromial region of the left shoulder and that
she had a positive impingement sign. Concerned that she might be developing
a small rotator cuff tear, he ordered an MRI that revealed some tendinitis but
no full thickness tear as of March 2006 . He noted on June 15,. 2007 that the
claimant experienced a chronic neck and left shoulder strain that exacerbated
underlying degenerative changes. She exhibited pain over the subacromial
bursal region of the left shoulder and had a mildly positive impingement sign .
The claimant also submitted a report from Dr. Bender, an orthopedic
surgeon, who examined her and reviewed her medical records in September
2006. He opined that the February 5, 2005 event caused a cervicothoracic
strain and a left shoulder acromioclavicular joint (i.e., AC joint) sprain with a
resulting rotator cuff tendinopathy that produced a loss of range of motion and
The back and neck conditions alleged to have resulted from the fall are not at issue .
Nor is the knee injury that is alleged to have resulted from an earlier incident .
warranted a 3% permanent impairment rating. He limited her to lifting no
more than 15 pounds using both arms and imposed various other restrictions`
aimed at "preserv[ing] the left shoulder."
The employer submitted an evaluation by Dr. Hogya, a board-certified
medical evaluator, who found no basis for any ongoing left shoulder
restrictions . He stated that the MRI showed no evidence of an impingement, a
tear, or muscle atrophy and that the biceps and glenoid labrum were intact.
He characterized the slightly increased signal intensity in the supraspinatus as
being a normal age-related finding that did not suggest any acute tendinitis or
a rotator cuff injury and stated that the EMG showed no neurological deficits .
He assigned a 0% impairment rating to the injury and stated that the injury
required no ongoing medical or surgical treatment. He recommended only the
home application of ice and heat and stretching, flexibility, and low impact
exercises, including Therabands.
Sometime after the benefit review conference, the parties agreed to waive
the scheduled hearing and place the claim in abeyance . An ALJ approved a
subsequent agreement to settle the claimant's entitlement to income and
vocational benefits for the shoulder injury on June 21, 2007 . The agreement
reserved her right to medical expenses .
The claimant's shoulder complaints continued after the settlement . In
November 2007 Dr. Hoblitzell ordered left shoulder MRI scans, which showed
"increased signal within the supraspinatus tendon felt most likely to represent
tendinopathy." He diagnosed acromioclavicular arthritis and an aggravation of
the claimant's rotator cuff tendinitis with no significant tear. On August 8,
2008 Dr. Hoblitzell noted that the claimant's left shoulder symptoms dated to
the February 2005 injury and had not improved with conservative treatment.
He referred her to Dr. Heis for a second opinion concerning the advisability of
surgical intervention . After examining the claimant Dr. Heis recommended and
sought pre-authorization for a left shoulder arthroscopic evaluation with
subacromial decompression and Mumford procedure and possible
glenohumeral debridement .
The employer submitted the request to Dr. Wolens, who reviewed the
claimant's medical records, noted that her shoulder symptoms had changed
significantly in the past three years, and recommended denying pre
authorization . He opined in September 2008 that the abnormal MRI signal
within the rotator cuff was neither unusual nor pathological for a woman her
age. He also stated that if the claimant did have a true AC joint arthropathy
that required a Mumford resection, the condition was unrelated to the
February 2005 injury. The employer then filed the motion to reopen and
medical fee dispute that are presently at issue .
The claimant submitted a report from Dr. Heis, who questioned Dr.
Wolens' qualifications to assess the need for orthopedic surgery. Dr. Heis also
pointed to various inaccuracies in Dr. Wolens' summary of the claimant's
medical record and took issue with his conclusions .
2 Dr. Wolens' Medical Index Number at the Department of Workers' Claims is 8224,
which falls within the family practice category.
In a subsequent report Dr. Wolens emphasized that the claimant did not
exhibit a clinical pattern that warranted surgery when injured in February
2005. He concluded that her present rotator cuff tendinopathy and AC joint
pain represented new findings that might warrant the need for arthroscopy but
were unrelated to the February 2005 accident.
The ALJ found the treating, board-certified orthopedic surgeons to be
more reliable and persuasive than Dr. Wolens . The ALJ noted that he was not
an orthopedic surgeon, had not examined the claimant, and had overlooked the
fact that Dr. Hoblitzell had treated the claimant continuously for left shoulder
pain since the injury. Moreover, Dr. Hoblitzell noted on June 15, 2007 that the
injury had produced a chronic shoulder strain that exacerbated underlying
degenerative changes . Then the November 2007 MRI revealed the condition for
which surgery was recommended. The ALJ concluded from the records of Drs .
Hoblitzell and Heis that the February 2005 injury caused a chronic left
shoulder strain and aroused degenerative changes, which produced the need
for the arthroscopic procedure recommended by Dr. Heis."
Having failed to convince the Board or the Court of Appeals, the employer
persists in arguing that the claimant failed to produce substantial evidence of
medical causation to show that the need for the proposed surgery resulted from
the February 2005 injury. The employer maintains that the claimant's experts
failed to refute Dr. Wolens' opinion as to causation and, thus, that the ALJ
erred in disregarding it. We disagree .
KRS 342.285 designates the ALJ as the finder of fact in workers'
compensation cases with the sole discretion to determine the quality,
character, and substance of evidence and to draw reasonable inferences from
the evidence.3 Substantial evidence of a disputed fact is evidence sufficient to
permit a reasonable finding for the proponent .4 The "substantial evidence" test
concerns the weight of evidence necessary to support a finding for the party
with the burden of proof on a factual issue; whereas, the "compelling evidence"
test concerns the weight of evidence necessary to require a finding for the party
with the burden of prooL5 When the parties present conflicting evidence on a
matter relevant to the outcome of their dispute, the ALJ must weigh their
evidence and determine which is more persuasive .
The employer had the burden in this medical reopening to prove that the
proposed surgery was unreasonable or unnecessary.6 The claimant had the
burden to prove causation, i. e., that the condition for which she sought surgery
resulted from the work-related injury.? She succeeded in doing so. Thus, the
employer's burden on appeal was to show the decision to be unreasonable
because no substantial medical evidence supported it. The employer
3 See Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985) .
5 See Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986) .
6 Mitee Enterprises v. Yates, 865 S.W.2d 654, 655 (Ky. 1993) .
7 Jones v. Newberg, 890 S.W.2d 284, 285 (Ky. 1994).
maintained that medical causation is a matter for the medical experts$ and
that Dr. Wolens' opinion was unrebutted.
Dr. Wolens stated clearly that any need for surgery did not result from
the February 2005 injury, but his testimony was not unrebutted . Evidence
found in treatment notes from Drs. Hoblitzell and Heis, both of whom were
orthopedic surgeons, provided the ALJ with a reasonable basis to infer that
they attributed the need for the proposed surgery to the February 2005 injury.
Although their notes make references
to the claimant's "history," nothing
indicates that she reported an inaccurate history of the mechanism of her
injury or symptoms. The fact that Dr. Hoblitzell treated her from the outset
supports the accuracy of the post-injury medical history that is recorded in his
Dr . Hoblitzell's notes indicate clearly that the claimant's left shoulder
complaints began with the February 2005 incident that produced what he
diagnosed at the time as a neck and shoulder strain. They also indicate that
what began as diffuse shoulder complaints became chronic; localized in the
rotator cuff and subacromial region by February 2006 ; and persisted at
reopening. Exercising the prerogative of the fact-finder, the ALJ found the
claimant's experts to be more persuasive than Dr. Wolens because he was not
an orthopedic surgeon; did not examine the claimant; and failed to consider
that Dr. Hoblitzell had treated her continuously for left shoulder pain since the
Hill v. Sextet Mining Corporation, 65 S.W.3d 503, 507 (Ky. 2001) .
injury. The AW inferred reasonably from the treatment notes that Drs .
Hoblitzell and Heis attributed the need for left shoulder surgery to the workrelated injury.
The decision of the Court of Appeals is affirmed.
sitting. . All concur.
COUNSEL FOR APPELLANT,
AMERICAN NURSING CARE, INC. :
David D. Black
Steven Andrew Oldham
Dinsmore & Shohl, LLP
255 East Fifth Street
Cincinnati, OH 45202
COUNSEL FOR APPELLEE,
MARY ANN JENKINS:
Mary Ann Jenkins
5766 North State Road 61
Booneville, IN 47601