PALM BEACH COMPANY V. NORMA TARTAR, ET AL.Annotate this Case
IMPORTANT NOTICE .
NOT TO BE PUBLISHED OPINION
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PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
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RENDERED : MAY 19, 2011
NOT TO BE PUBLISHED
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PALM BEACH COMPANY
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-002309-WC
WORKERS' COMPENSATION NO. 91-06109
THE PAIN TREATMENT CENTER (D /B /A
STONE ROAD SURGERY CENTER) ;
DR. BALLARD WRIGHT ;
HONORABLE EDWARD HAYS,
ADMINISTRATIVE LAW JUDGE ; AND
WORKERS' COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
An Administrative Law Judge (ALJ) found in this medical reopening that
the claimant's cervical spine condition resulted from the work-related injury
she sustained in 1990 and that the disputed medical treatment was reasonable
and necessary . The Workers' Compensation Board and the Court of Appeals
affirmed . Appealing, the employer maintains that a previous ALJ's failure to
attribute any occupational disability to the cervical condition in the initial
award precluded a finding at reopening that KRS 342 .020(1) provided medical
benefits for the condition. We affirm for the reasons stated herein .
The claimant was born in 1949 and has a GED but no vocational or
other specialized training. She began to work for the defendant-employer in
1968 as an industrial seamstress .
On July 8, 1990 she noticed a knot at the
top of her right shoulder as well as numbness on the right side of her face and
in fingers on her right hand . She was right-handed and attributed the
symptoms to recurrent problems with the feeding mechanism of her sewing
machine, which caused her to have to grip the cloth she was sewing and pull it
through the machine. She informed her supervisor; sought medical treatment ;
and later filed a claim for a repetitive trauma injury. She continued to work as
of the date her claim was heard.
The record indicates that conservative treatment failed, after which the
claimant was referred to Dr. Travis, a neurosurgeon . He diagnosed cervical
radiculopathy in October 1990 for which he recommended exercise and
traction . Dr. Travis also found some evidence of carpal tunnel syndrome that
he did not consider clinically significant .
Dr. El-Naggar, a neurosurgeon, noted in April 1991 that the claimant
complained of neck pain and right arm pain with numbness . She reported
experiencing inter-scapular pain while working at a sewing machine in 1989
and again in July 1990. The pain radiated from her neck into her right arm
and forearm and sometimes the entire arm became numb. Dr . El-Naggar noted
evidence of mild carpal tunnel syndrome . . He also noted signs of right C5 and
C6 radiculopathies, but a cervical spine MRI performed in May 1991 revealed
no abnormalities . He attributed her severe neck pain to a probable joint injury
that might heal very slowly and did not recommend carpal tunnel surgery.
Dr. Sammarco, an orthopedic surgeon, performed bilateral carpal tunnel
releases in May 1992 . He attributed the need for surgery to the claimant's
repetitive work . Dr. Lane, the orthopedic surgeon who treated her initially,
assigned a 4% impairment rating to the cervical complaints and a 5% rating to
the carpal tunnel condition .
Testifying for the employer in 1993, Dr. Primm diagnosed degenerative
cervical disc disease to which he assigned a 3% to 5% impairment rating,
attributing half of the rating to the arousal of pre-existing degenerative
changes . He considered the left carpal tunnel release to be unnecessary . Dr.
Corwin diagnosed bilateral carpal tunnel syndrome, post surgery, but found no
causal connection between the condition and any incident in July 1990 .
The opinion and award rendered by. ALJ Terry in June 1994 indicated
that the contested issues consisted of whether the claimant's "condition" was
work-related ; the extent and duration of any occupational disability ; the
apportionment of liability ; and the reasonableness and necessity of the
claimant's medical treatment, including the carpal tunnel surgeries.
ALJ Terry found that the claimant sustained "a work-related injury" that
resulted in a 10% occupational disability under KRS 342 . 0011 (11) and Osborne
v. Johnson .' Relying on Dr. Sammarco's testimony, the ALJ found that the
1 432 S.W.2d 800 (Ky. 1968) .
bilateral carpal tunnel syndrome resulted from the claimant's repetitive work
since 1968 and stated further:
While plaintiff may also have some cervical condition
which was aroused by these repetitive activities at
work, her occupational disability is due to bilateral
carpal tunnel syndrome rather than to any cervical
Noting Dr. Primm's opinion that most of the claimant's problems resulted from
the degenerative cervical condition, ALJ Terry found instead that "her principal
complaints [were] related to carpal tunnel syndrome ." The ALJ characterized
the claimant's injury as a classic Haycraft2 case and imposed all liability for
benefits on the employer .
ALJ Terry rejected the employer's argument that the carpal tunnel
surgeries were unreasonable and/or unnecessary and found them to be
compensable. Moreover, the ALJ awarded such medical benefits "for the cure
and relief from the effects of the injury . . . as may reasonably be required at
the time of the injury and thereafter during disability ." Neither party appealed .
The claimant's cervical condition continued to be symptomatic and to
require medical treatment after the award . Dr. Kennedy treated the condition
until he closed his office . The claimant then obtained treatment from Dr .
Manney and other physicians affiliated with the Pain Treatment Center .
Dr . Manney noted in September 2004 that various narcotic pain
medications, trigger point injections, and various types of blocks had met with
2 Haycraft v. Corhart Refractories Co., 544 S .W.2d 222 (Ky. 1977) (to the extent that
work causes a pre-existing degenerative condition to produce impairment sooner
than it would have done otherwise, the condition itself is an injury) .
limited success . A cervical spine MRI reviewed in November 2004 revealed a
C5-6 disc protrusion that caused minimal stenosis . Convinced that the
cervical facet joints were the pain generators, Dr. Manney recommended
injections in August 2005 and later recommended additional facet joint and
trigger point injections, blocks, and changes in pain medication . Dr. Manney
noted in August 2007 that the claimant's pain was under control with her
current medications .
Dr. Wright's diagnoses in September 2007 included degenerative disc
disease, myofascial pain, and generalized arthritis . The claimant's medications
at that time included Percocet, Neurontin, Phenergan, Ultram, Paxil, Prevacid,
Celebrex, Lidoderm, and Topamax.
The employer paid for treating the cervical condition from July 1990 until
August 2008 without dispute . On August 15, 2008 a drug urine screen was
negative for oxycodone although Percocet was prescribed for pain resulting
from the condition . On August 27, 2008 Dr. Olash recommended denying
pre-authorization for proposed bilateral cervical facet block injections as being
unnecessary. He noted that the claimant had complained of neck pain and
headaches since 1990; had been on narcotic pain medications for years ; and
received only two days of pain relief from facet blocks performed in 2005 . He
concluded that there was no reason to subject her to the risk of an invasive
procedure that had been tried previously and failed .
3 Medical evidence submitted subsequently indicates that oxycodone is a component of
This appeal concerns a motion to reopen and medical dispute filed by the
employer in September 2008 regarding the compensability of narcotic pain
medication and injections prescribed to treat the cervical condition . The
employer did not assert that the expenses were unreasonable or unnecessary.
It asserted instead that they were unrelated to the carpal tunnel condition,
stating that it was the only condition for which benefits were awarded in 1994.
The motion was granted and assigned to ALJ Hays for adjudication .
Dr. Snider evaluated the claimant for the employer in September 2008 .
He noted that she appeared to have suffered a cervical sprain or strain injury
in 1990 and diagnosed chronic cervical/ trapezius strain . He considered her to
be at maximum medical improvement from the injury as of the date that she
quit working ; saw no objective findings to justify the use of multiple
medications; saw no indication for Percocet; and viewed the negative drug
screen as raising a question of diversion or non-compliance . He found no
evidence to justify the use of Neurontin ; recommended that Tramadol,
Phenergan, and Prevacid be discontinued ; and opined that anti-inflammatory
medication would be reasonable .
An October 2008 letter from Dr. Katherine Ballard of the Pain Treatment
Center stated that the claimant could be compliant with her prescription for
Percocet yet have a negative drug screen because she took the drug only on an
"as needed" basis and the prescribed dose was rather small. Dr. Ballard
opined that the claimant was an appropriate candidate for opioid medication
and injective therapy .
The claimant testified that she continued to work for her employer as a
seamstress until 2001, when she quit for reasons unrelated to her claim . She
stated that she is right-handed and that her right arm and shoulder are more
symptomatic than her left. She stated that her medication regimen had
changed little since 2004 ; that she took Percocet most days but not every day;
and that the prescribed medications enabled her to function . She discussed
the efficacy of the various types of neck and shoulder injections she had
received previously and described the purpose of the recommended injections
as being long-term pain control .
The employer pointed to ALJ Terry's conclusion that the claimant's
occupational disability resulted from bilateral carpal tunnel syndrome, not a
cervical condition, and argued that the decision controlled the medical dispute.
The claimant noted, however, that ALJ Terry's opinion contained numerous
references to the intertwined symptoms involving her arms, shoulders, and
neck, including the evidence that her degenerative cervical condition was
aroused by her repetitive work . She argued that ALJ Terry did not limit her
injury to the carpal tunnel condition but found that her occupational disability
resulted from the carpal tunnel condition . ALJ Hays agreed .
The May 2009 decision noted that reports from the case manager for the
employer's insurance carrier revealed a close involvement in the claimant's
medical care throughout the 18 years since her injury. Moreover, the employer
paid for treating the cervical condition without questioning its compensability
until the present dispute . Relying heavily on FEIInstallation, Inc. v. Williams, 4
ALJ Hayes noted the longstanding relationship between impairment and
disability and observed that impairment demonstrates the existence of a
harmful change in the human organism, .i.e., an injury. Noting that ALJ Terry
acknowledged the cervical condition's existence in 1990 and did not find it to
be temporary, ALJ Hays concluded that the fact it was not occupationally
disabling at that time did not preclude medical benefits . Convinced that the
work-related injury caused a loss of use and/or derangement of the claimant's
neck and shoulder that had been present since 1990 and continued to require
medical treatment, ALJ Hays found reasonable and necessary treatment of the
condition to be compensable . The order entered on reconsideration found
specifically that the treatment rendered and proposed by physicians at the Pain
Treatment Center was reasonable and necessary .
Appealing, the employer asserted that the award entered at reopening did
not conform to Chapter 342 because it exceeded the scope of the 1994 award .
The employer noted that KRS 342.020(1) provided medical benefits "during
disability." It concluded, therefore, that ALJ Terry's failure to attribute any
occupational disability to the cervical condition barred a conclusion that KRS
342 .010(1) provided medical benefits for the condition. Having failed to
convince the Board or the Court of Appeals, the employer continues to
maintain that ALJ Hayes erred by awarding medical benefits for the cervical
condition at reopening and that the decision should not have been affirmed.
214 S .W. 3d 313, 318 (Ky. 2007).
Stating that "the time for correction of the original award has long since
passed," the employer argues that the Court of Appeals failed to give proper
significance to ALJ Terry's failure to find that the cervical condition was work
related or to find that it produced occupational disability . It also argues that
injuries that do not result in a permanent impairment rating are not disabling
and do not warrant future medical benefits . We disagree .
Nothing in the claimant's initial award precluded medical benefits from
being awarded specifically for the cervical condition at reopening . ALJ Terry's
recitation of the evidence indicates that the parties' dispute largely concerned
whether the claimant suffered from bilateral work-related carpal tunnel
syndrome ; whether the condition produced occupational disability ; and
whether the surgery performed in 1992 was reasonable and necessary . It also
indicates that the immediate effects of the July 1990 injury concerned the
claimant's neck, right shoulder, and right arm and that she was diagnosed
with cervical radiculopathy from the outset.
The employer did not dispute that the cervical condition was workrelated. Dr. Primm testified on its behalf that the condition was aroused at
least partially by the claimant's work and that it produced a permanent
impairment ratings Dr. El-Naggar indicated that the neck injury was probably
temporary, but Dr. Lane assigned an impairment rating. Absent any specific
findings concerning the cervical condition, we construe ALJ Terry's statement
5 A condition could be work-related and cause a permanent impairment rating but be
found reasonably to have caused no permanent occupational disability under the
1990 version of KRS 342.730(l) and KRS 342.0011 (11) .
that the claimant's work might have aroused a cervical condition but that her
occupational disability resulted from carpal tunnel syndrome to mean only that
the cervical condition was not occupationally disabling.
The employer paid for treating the claimant's cervical condition without
dispute until September 2008 . Causation became a contested issue for the
first time in the reopening . Thus, ALJ Hays did not err by determining that
nothing in ALJ Terry's decision precluded findings from being made concerning
whether the cervical condition was work-related or whether the proposed
medical treatment was reasonable and necessary .
Both in 1990 and at reopening KRS 342 .020(1) provided compensation
for such medical treatment "as may reasonably be required at the time of the
injury and thereafter during disability." KRS 342 .020(1) was amended in 1994
to state also that "[t]he employer's obligation to pay benefits specified in this
section shall continue for so long as the employee is disabled regardless of the
duration of the employee's income benefits ."6
FEIInstallation, Inc. v. Williams was decided in 2003 . It concerned
whether KRS 342 .020(1) a worker who reached maximum medical
improvement with no permanent impairment rating was entitled to future
medical benefits . The court noted that the 1994 amendment to KRS
342 .020(1) clearly "separate[ed] the duration of medical benefits from that of
income benefits . The employer states correctly that impairment and disability
6 1994 Ky. Acts ch. 181, Part 5, § 17.
are not synonymous,? but the concepts have had a longstanding relationship
under Chapter 342 because impairment produces disability, both physical and
occupational. Noting that relationship, the Williams court concluded that the
phrase "during disability" extended the entitlement to medical benefits for so
long as a work-related injury caused impairment as defined in the Fifth Edition
of the AMA Guides to the Evaluation ofPermanent Impairment (Guides) .$ As so
defined, the entitlement does not depend on whether impairment rises to the
level that warrants a permanent impairment rating or income benefits .
We reject the employer's assertion that FEIInstallation, Inc. v. Williams
was decided wrongly and find no significance in the fact that the claimant's
injury occurred in 1990. Although KRS 342 .0011 (11) defined the term
"disability" in 1990 as being "a decrease of wage earning capacity due to
injury," Chapter 342 used the terms impairment and disability interchangeably
at times . The 1990 version of KRS 342 .730(1) (b) based partial occupational
disability awards on either the "percentage of disability" as determined by the
Guides (i .e ., the worker's permanent impairment rating) or by the "percentage
of disability as determined under KRS 342 .0011(11)," whichever was greater.
We conclude, therefore, that the 1990 version of KRS 342 .020(1), like the
present version, used the phrase "during disability" to refer to physical
disability, i.e., impairment .
7 Roberts Brothers Coal Co. v. Robinson, 113 S.W.3d 181 (Ky. 2003) .
The Guides define impairment as being "a loss, loss of use, or derangement of any
body part, organ system, or organ function." Guides to the Evaluation ofPermanent
Impairment 2 (5th ed. 2001) .
ALJ Hays did not err by awarding medical benefits for the claimant's
cervical condition at reopening . Thus, the Board and the Court of Appeals did
not err by affirming the decision .
The decision of the Court of Appeals is affirmed.
All sitting . All concur.
COUNSEL FOR APPELLANT,
PALM BEACH COMPANY :
Walter Elliott Harding
Boehl Stopher 8s Graves, LLP
2300 Aegon Center
400 West Market Street
Louisville, KY 40202
COUNSEL FOR APPELLEE,
Paul F. Henderson
301 West Mt. Vernon Street
P.O . Box 783
Somerset, KY 42501
COUNSEL FOR APPELLEES,
THE PAIN TREATMENT CENTER (D/B/A
STONE ROAD SURGERY CENTER)
AND DR. BALLARD WRIGHT :
Kathleen Moran Luchtefeld
280 Pasadena Drive
Lexington, KY 40503