Michele Hampton, as Administratrix of the Estate of Geoffrey Hampton v. Intech Contracting, LLC ( 2021 )

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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS,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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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 28, 2021
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0111-WC
MICHELE HAMPTON, AS ADMINISTRATIX APPELLANT
OF THE ESTATE OF GEOFFREY HAMPTON
ON APPEAL FROM COURT OF APPEALS
V. NO. 2018-CA-1703
WORKERS’ COMPENSATION BOARD
NO. WC-09-78569
INTECH CONTRACTING, LLC; APPELLEES
HONORABLE JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE AND
WORKERS’ COMPENSATION BOARD
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Michelle Hampton, as the administrator of Geoffrey Hampton’s estate,
appeals the Court of Appeals’ decision which affirmed the Workers’
Compensation Board ruling that Geoffrey Hampton’s travel expenses to
Oklahoma to seek treatment were not compensable and that the Administrative
Law Judge’s (ALJ) order denying Hampton reimbursement for home healthcare
services was backed by substantial evidence. For the following reasons, we
affirm.
I. Factual and Procedural Background
While working on a bridge for Intech Contracting, LLC in 2009, Hampton
became disoriented when he suffered an acute hypoglycemic attack, falling
sixty-two feet and causing severe damage to his spine, vocal chords, and
ultimately resulting in a leg amputation. Hampton filed a workers’
compensation claim. The ALJ awarded Hampton permanent total disability in
2014, additionally finding that Hampton’s diabetes was exacerbated by his
injury and required Intech to pay for Hampton’s diabetes treatment for
eighteen months from the date of his injury. Consequently, Intech bore no
responsibility for Hampton’s diabetic needs after March 9, 2011.
Following the ALJ’s award of permanent total disability, Hampton moved
briefly to Oklahoma in the fall of 2015. As a member of the Cherokee Nation,
Hampton qualified for care at its healthcare facility. Medical records indicate
that during his stay in Oklahoma, Hampton sought treatment several times.
Initially, Hampton was admitted to the Cherokee Nation Hastings Hospital
complaining of chronic back pain but refused all treatment options except for
narcotics. Shortly thereafter Hampton was treated at Northeastern Health
Systems after complaining of chronic neck pain. Finally, Hampton’s hospital
records from the Oklahoma State University Hospital indicate that he was
admitted after being found unconscious in his apartment with high blood
glucose. Notably, Hampton travelled to Oklahoma without a referral from his
designated physician and lived unassisted despite his award of home health
assistance in Kentucky.
2
In November and December 2015, following his treatment in Oklahoma,
Hampton filed for reimbursement of his travel expenses incurred while
traveling to the Cherokee Nations Hospital in Tahlequah, Oklahoma.
Contemporaneous with his reimbursement form Hampton requested
modifications to his home, vehicle, and boat due to physical limitations
resulting from his disability. Intech filed a medical dispute and a motion to
reopen on February 1, 2016. In response to Intech’s dispute, Hampton argued
that because Intech failed to respond within thirty days of receiving his
statement of services, its delay constituted a waiver pursuant to KRS1
342.020(4) and it was not entitled to dispute his travel expenses. The ALJ
disagreed with Hampton and decided the matter, finding that Hampton’s travel
expenses were non-compensatory because he was not referred by a designated
physician. Likewise, Hampton’s diabetic treatment did not qualify for
reimbursement because he had already been compensated for diabetic
treatment resulting from his injury. As noted, Intech’s responsibility for
Hampton’s diabetic treatment had expired in 2011.
The ALJ also adjudicated a number of other issues. Relevant to this
appeal, the ALJ determined that Hampton was entitled to have his home and
boat evaluated for possible accommodations. However, Hampton’s request for
home healthcare was denied along with his request for vehicle modifications.
Both Intech and Hampton appealed to the Board. The Board affirmed the
1 Kentucky Revised Statutes.
3
ALJ’s findings in all respects, except it remanded for further factual findings
regarding Hampton’s treatment at the Oklahoma State University Hospital.2
Thereafter, Hampton appealed to the Court of Appeals challenging the denial of
his home healthcare and travel reimbursement. The Court of Appeals affirmed
the Board’s decision and this appeal followed.
II. Standard of Review
The well-established standard of review for the appellate courts of a
workers’ compensation decision “is to correct the [Workers’ Compensation]
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.” E.g., Western
Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992); Butler’s Fleet Serv.
v. Martin, 173 S.W.3d 628, 631 (Ky.App. 2005); Wal-Mart v. Southers, 152
S.W.3d 242, 245 (Ky.App. 2004). See also Special Fund v. Francis, 708 S.W.2d
641, 643 (Ky. 1986) (if the fact-finder finds in favor of the person having the
burden of proof, the burden on appeal is only to show that there was some
substantial evidence to support the decision); cf. Gray v. Trimmaster, 173
S.W.3d 236, 241 (Ky. 2005) (if the ALJ finds against the party having the
burden of proof, the appellant must “show that the ALJ misapplied the law or
2 The record is unclear regarding the outcome of the Board’s remand to the ALJ
regarding the compensability of Hampton’s treatment at OSUH. However, those costs
are not at issue in this appeal.
4
that the evidence in her favor was so overwhelming that it compelled a
favorable finding”).
III. Analysis
With regards to Hampton’s home healthcare costs, we note that the ALJ
sufficiently supported his conclusion that the home healthcare costs were non-
compensable. While Hampton relied on the deposition testimony of Dr. Salles3
stating that home healthcare services were necessary and reasonable, Dr.
Salles had also stated in a previous deposition that Hampton was largely
independent. Moreover, Hampton had traveled to Oklahoma on more than one
occasion without assistance and he had lived in Oklahoma for a year and a half
with no accommodations. Hampton also exercised regularly on his own. Given
the conflicting evidence, the ALJ properly exercised his discretion as fact-
finder.
Next, we must determine whether Intech was required to challenge
Hampton’s request for reimbursement for his travel to Oklahoma within thirty
days pursuant to KRS 342.020(4).4 Intech does not dispute that it waited more
than thirty days to file a fee dispute. Hampton contends that because Intech
failed to act timely the ALJ lacked jurisdiction to consider the reasonableness
3 Dr. Salles was the primary physician charged with Hampton’s care and
rehabilitation resulting from the work injury.
4 KRS 342.020(4) states in relevant part that: “[t]he employer, insurer, . . . shall
make all payments for services rendered to an employee directly to the provider of the
services within thirty (30) days of receipt of a statement for services.” As the Court of
Appeals noted, we have construed this statute to require that employers contest a
post-award medical bill within thirty days. Kentucky Associated Gen. Contractors Self-
Ins. Fund v. Lowther, 330 S.W.3d 456, 459 (Ky. 2010).
5
of the travel expense. See Lawson v. Toyota Motor Mfg. Kentucky, Inc., 330
S.W.3d 452 (Ky. 2010) (reasoning that the employer’s failure to comply with
KRS 342.020’s thirty-day requirement precluded the ALJ from considering the
fee dispute entirely). Hampton’s reliance on Lawson is misplaced. As 803
KAR5 25:096 § 8(3) clearly states, Intech did not have an obligation to challenge
the reimbursement request if the “statement for services clearly indicates that
the services were not performed for a work-related condition.”6 Hampton’s
medical records indicate that while he was in Oklahoma he was treated for an
acute diabetic episode, which had already been adjudicated in a previous
administrative hearing and for which Intech was not responsible at the time of
his hospitalization. Notably, while Hampton’s medical records did include
additional hospital visits for back and neck pain, the record is devoid of any
evidence that would indicate that Hampton made Intech aware of those
services.7 Under these circumstances, Intech was under no obligation to file
within thirty days. Since Intech’s motion did not implicate KRS 342.020, the
5 Kentucky Administrative Regulations.
6 Hampton’s original form 114 stated that his services were for back pain, neck
pain, and arm numbness. This statement alone is not clearly unrelated to his work-
related condition. However, Hampton’s subsequently submitted medical records
attached to a map of his travel for compensation “clearly indicate[d]” that the reason
for his travel was treatment for diabetes. It was therefore clear to Intech that the
services “were not performed for a work-related condition” pursuant to 803 KAR
25:096.
7 In fact, the two form 114’s which Hampton submitted to Intech also failed to
name the designated physician which referred Hampton to any of the Oklahoma
facilities which he visited.
6
ALJ had the necessary jurisdiction to consider the reasonableness and
necessity of the travel expenses.
IV. Conclusion
For the reasons stated above, we affirm the Court of Appeals’ decision.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Charles William Gorham
The Law Offices of Charles W. Gorham
COUNSEL FOR APPELLEE,
INTECH CONTRACTING, LLC:
Walter Alexander Ward
Ward, Hocker & Thornton, PLLC
COUNSEL FOR APPELLEE,
HONORABLE JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE:
Not Represented by Counsel
COUNSEL FOR APPELLEE,
WORKERS’ COMPENSATION BOARD:
Michael Wayne Alvey,
Chairman
7