Scottsville Manor v. Loretta Binion ( 2014 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: OCTOBER 23, 2014
NOT TO BE PUBLISHED
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APPErrANT- SCOTVILEMANR
ON APPEAL FROM COURT OF APPEALS
V. CASE NO. 2012-CA-001630-WC
WORKERS' COMPENSATION NO. 05-01349
LORETTA BINION;
DR. KENNETH BARTHOLOMEW;
HONORABLE WILLIAM J. RUDLOFF,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Scottsville Manor, appeals from a Court of Appeals decision
which upheld an Administrative Law Judge's ("ALJ") determination that certain
medical treatments to be administered to Appellee, Loretta Binion, were
reasonable and necessary. Scottsville Manor argues that the AU erred by so
finding because medical evidence compelled a finding in its favor. For the
below stated reasons, we affirm the Court of Appeals.
Binion worked as a nurse's aide for Scottville Manor. She suffered a
work-related injury in 2004 when her left arm was caught and crushed under a
cleaning cart. Binion had a stimulator placed in her spine and underwent two
revisions. Binion settled her workers' compensation claim with Scottsville
Manor, reserving the right to future necessary medical treatments.
On June 28, 2011, Scottsville Manor filed a motion to reopen Binion's
award arguing that a third stimulator revision, a cervical MRI, and prescribed
fentanyl patches were not reasonable, necessary, and work-related treatment.
To support the motion, Scottsville Manor cited to the opinion of Dr. Dennis
O'Keefe who performed an independent medical evaluation on Binion. He
believed that the third stimulator revision was unnecessary because Binion did
not use her spinal cord stimulator often, the cervical MRI was not related to the
work-related injury, and the fentanyl patches created a significant risk of her
overdosing. In rebuttal, Binion testified that the stimulator revision and MRI
were recommended by her doctor and his staff. Binion also testified she
continued to suffer from severe pain. The ALJ requested that Binion provide
additional evidence to support her testimony but there is nothing in the record
to indicate she did.
After a review of the evidence, the ALJ "decline[d] to second guess the
opinions" of Binion's treating physicians, and found the contested treatments
to be reasonable and necessary.' The Board affirmed the findings that the
spinal cord revision and fentanyl patches were reasonable and necessary, but
vacated the portion of the ALJ's award finding that the cervical MRI was
compensable. That issue is to be remanded for further findings of fact
1 The AU found that the work-relatedness of the contested treatments was
uncontested.
2
regarding the work-relatedness of the MRI. Scottsville Manor appealed to the
Court of Appeals who affirmed the Board. This appeal followed.
The employer has the burden of proof when challenging the
reasonableness and necessity of medical treatment in a post-award fee dispute.
Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993). The ALI, as fact-finder,
has the sole authority to judge the weight, credibility, substance, and
inferences to be drawn from the evidence. A.K. Steel Corp. v. Adkins, 253
S.W.3d 59, 64 (Ky. 2008). The ALJ may reject uncontroverted medical evidence
if a sufficient explanation is provided for the rejection. Collins v. Castleton
Farms, Inc., 560 S.W.2d 830, 831 (Ky. App. 1977). Because Scottsville Manor
was unsuccessful before the ALJ, the issue on appeal is whether the evidence
compelled a result in its favor. Wolf Creek Collieries v. Crum, 673 S.W.2d 735,
736 (Ky. App. 1984).
Scottsville Manor argues that the ALJ erred by finding that the contested
procedures 2 were reasonable and necessary. It contends that the ALJ
improperly disregarded undisputed medical evidence from Dr. O'Keefe which
supports its position. Scottsville Manor argues that the only evidence that the
procedures were recommended by Binion's treating physician came from her
testimony. However, a review of the records of her physician indicates that
even though Binion does not use the spinal cord stimulator frequently, he did
recommend the revision. He also recommended the fentanyl patches for pain
2 Because the Board vacated and remanded the claim for the cervical MRI we decline
to address any argument related to it in this opinion.
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management. It is within the discretion of the ALJ to reject the opinion of Dr.
O'Keefe and instead accept the opinion of Binion's treating physician.
Additionally, the ALJ also found Binion's testimony regarding the pain she still
experiences to be credible. The ALJ's finding that the recommended
treatments are reasonable and necessary is supported by substantial evidence.
For the above stated reasons, we affirm the decision of the Court of
Appeals.
Minton, C.J.; Abramson, Cunningham, Noble, Scott, and Venters, JJ.,
sitting. All concur. Keller, J., not sitting.
COUNSEL FOR APPELLANT,
SCOTTSVILLE MANOR:
Samuel J. Bach
COUNSEL FOR APPELLEE,
LORETTA BINION:
Loretta Binion, pro se
COUNSEL FOR APPELLEE,
DR. KENNETH BARTHOLOMEW:
Dr. Kenneth Bartholomew, pro se
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