Lfucg Police Department v. Deborah Hurt ( 2023 )

RENDERED: FEBRUARY 10, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1310-WC
LFUCG POLICE DEPARTMENT APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-13-89089
DEBORAH HURT; BLUEGRASS
ORTHOPEDICS; DR. HARRY
LOCKSTADT; HONORABLE JOHN
B. COLEMAN, ADMINISTRATIVE
LAW JUDGE; AND WORKERS
COMPENSATION BOARD APPELLEES
OPINION
AFFIRMING
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BEFORE: ACREE, COMBS, AND ECKERLE, JUDGES.
COMBS, JUDGE: This is an appeal from a Workers’ Compensation case
involving a post-award medical fee dispute filed by the Appellant, LFUCG Police
Department (LFUCG), contesting a proposed surgery by Dr. Lockstadt. The
Administrative Law Judge (ALJ) found the surgery compensable, and the
Workers’ Compensation Board affirmed. Finding no error after our review, we
affirm the Board.
The underlying claim arose out of a February 17, 2013, work-related
motor vehicle accident. Hurt and LFUCG settled the claim in 2015, and pursuant
to KRS1 342.020, Hurt’s right to medical benefits was left open.
On September 20, 2021, Dr. Lockstadt requested approval for a C3-4,
C4-5 posterior cervical decompression and fusion surgery. Dr. Farrage performed
utilization review and found no apparent medical necessity for the proposed
surgery.
LFUCG filed a motion to reopen resulting in a medical fee dispute.
LFUCG challenged the proposed surgery on grounds of reasonableness, necessity,
and work-relatedness. Dr. Kriss evaluated Hurt at LFUCG’s request and found no
indication for decompression surgery, but he did recommend non-operative
treatment.
Hurt testified by deposition and at the final hearing. She testified to
ongoing pain in her neck since the accident. Hurt submitted records from Dr.
Lockstadt as evidence and took his deposition. Dr. Lockstadt diagnosed
spondylosis or degenerative arthritis at C4-5, C5-6, and C6-7. Dr. Lockstadt
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Kentucky Revised Statutes.
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testified that he has found the proposed surgical procedure to be quite successful
relating to arthritis in the back of the neck. He explained that it is performed by
means of a tiny cut with x-rays and through tubes, and small spacers are then
placed in the painful arthritic joints in the neck -- resulting often in dramatic
improvement in neck pain.
The crux of this appeal involves a portion of Dr. Lockstadt’s
testimony. Dr. Lockstadt was asked whether he could state within the realm of
reasonable medical probability whether the subject procedure was related to the
subject accident or to pre-existing problems. Dr. Lockstadt responded, “I don’t
know the answer to that. There is no way to determine the answer. What we’ve
had previously, we had this special fund where 50 percent was attributed to the car
accident, 50 percent to other causes.”
On June 28, 2022, the ALJ rendered a detailed opinion and order as
follows in relevant part:
[A] review of Dr. Lockstadt’s records reveals the note of
August 24, 2020, wherein it was indicated the
symptomatic cervical spondylosis was felt to relate back
to the 2013 injury event. In his testimony, Dr. Lockstadt
noted the relatedness question was now difficult to
answer, but that previously under the “Special Fund” it
would be apportioned 50/50. Of course, this is a
reference to the prior version of KRS 342.120, which
placed one-half of the liability for income benefits on the
Special Fund when an injury was found to be the result of
the arousal of pre-existing degenerative conditions into
disabling reality. To the undersigned, this statement by
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Dr. Lockstadt is tantamount to his offering the opinion
the need for the surgery is the result of the arousal of pre-
existing degenerative changes into disability reality by
the work-related event. This, along with Hurt’s own
testimony regarding the continuation of her symptoms
following her work-related automobile accident and the
statements in the medical record from August 24, 2020,
persuades me the symptoms and the request for treatment
are related to the effects of the work injury.
As the posterior cervical fusion is conditionally
recommended, the request must be accompanied by
sound medical reasoning. I am persuaded Dr. Lockstadt
has offered sound medical reasoning for his surgical
recommendation. He clearly stated in his surgery request
and his deposition testimony that conservative treatment
options have been maximized[.] . . . He discussed the
recommendation for the placement of spacers, which is
noted to be supported in the ODG.[2] After considering
the entirety of the evidence, not only as summarized
above, but as contained in the entire record, I am
persuaded the recommended surgical procedure is
causally related to the work injury in 2013, and is
reasonable and necessary. Therefore, it is compensable
under KRS 342.020.
LFUCG filed a petition for reconsideration and argued that the ALJ
had “mistakenly relied” upon Dr. Lockstadt. By order rendered July 29, 2022, the
ALJ denied LFUCG’s petition as a re-argument of the evidence.
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Occupational Disability Guidelines. The ALJ discussed Kentucky’s adoption of the treatment
guidelines contained in 803 Kentucky Administrative Regulations (KAR) 25:260, noting that
medical treatment which is “not recommended” under the ODG may be found compensable if
the medical provider articulates sound medical reasoning for the treatment.
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LFUCG appealed to the Board and again argued that the ALJ’s
interpretation of Dr. Lockstadt’s testimony was “nothing more than an
unsubstantiated guess” as to what the doctor meant and that the other evidence
cited by the ALJ did not support the reasonableness, necessity, or work-relatedness
of the proposed surgery.
By opinion rendered October 14, 2022, a unanimous Board affirmed
as follows:
We note LFU[CG] argued it bears the burden of proof
regarding reasonableness and necessity of treatment, but
that Hurt bears the burden of proof regarding causation
and the work-relatedness of the treatment. LFU[CG]
cites Addington Resources, Inc. v. Perkins, 947 S.W.2d
421 (Ky. App. 1997) for this proposition. The Board
notes, however, the Kentucky Supreme Court has since
acknowledged the burden of proof regarding work-
relatedness in a post-award medical fee dispute is on the
employer in two unpublished cases. C&T Hazard v.
Stollings, 2012-SC-000834-WC, 2013 WL 5777066 (Ky.
Oct. 24, 2013); Conifer Health v. Singleton, No. 2020-
SC-0609-WC, 2021 WL 4487772 (Ky. Sept. 30, 2021).
KRS 342.735(3) also states, in relevant part: “However,
the employee has the burden of proof to show the
medical expenses are related to the injury, reasonable and
necessary prior to an application of benefits being filed
and before an award or order of benefits. Thereafter, the
burden is upon the employer.”
Since it bore the burden of proof and was
unsuccessful before the ALJ, LFUCG must demonstrate
the evidence compelled a different result. Snawder v.
Stice, 576 S.W.2d 276 (Ky. App. 1979). For evidence to
be compelling, it must be so overwhelming that no
reasonable person could reach the same conclusion as the
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ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.
App. 1985).
....
LFUCG . . . contends the proposed surgery is not causally
related to the work injury. It places particular emphasis on
the deposition testimony of Dr. Lockstadt. . . . The ALJ
inferred Dr. Lockstadt was referring to a prior version of
KRS 342.120 when apportionment for income benefits
would accrue one-half to the special fund when a dormant
pre-existing condition was aroused into disabling reality by
a work injury. The ALJ has “the sole discretion to
determine the quality, character, weight and credibility and
substance of the evidence, and to draw reasonable
inferences from the evidence.” Bowerman v. Black
Equipment Co., 297 S.W.3d 858, 866 (Ky. App. 2009). . . .
Dr. Lockstadt’s records included his note from
August 24, 2020 indicating [Hurt’s] symptoms since 2013,
when her work-related injury occurred, always related to
her neck. Hurt also testified her symptoms were ongoing
since the 2013 work-related MVA. Dr. Lockstadt also
specifically testified he was not recommending this
procedure when he treated Hurt previously in 2008. The
ALJ found Hurt successfully proved the surgery was work-
related and that finding was supported by substantial
evidence; hence, the Board will not disturb the ALJ’s
findings.
On appeal, LFUCG contends that Dr. Lockstadt’s apportionment
comment shows his “complete lack of understanding of th[e] prior law as
apportionment of income benefits had nothing to do with compensability of
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medicals under KRS 342.020.”3 However, this argument pertains to the weight of
the evidence -- a matter which lies within the ALJ’s sole discretion. Bowerman,
supra.
Once again, LFUCG argues that the ALJ’s conclusion about what Dr.
Lockstadt meant is nothing more than an unsubstantiated guess. It also contends
that the other evidence upon which the ALJ relied -- Dr. Lockstadt’s August 24,
2020, note and Hurt’s testimony -- cannot support the reasonableness, necessity, or
work-relatedness of the proposed surgery. However, the Board concluded that
substantial evidence supports the ALJ’s determination. In essence, LFUCG is
asking us to second-guess the Board. That is not our function.
The standard of our review is well-settled:
The function of further review of the [Board] in the Court
of Appeals is to correct the Board only where [this] Court
perceives the Board has overlooked or misconstrued
controlling statutes or precedent, or committed an error in
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Derr Construction Company v. Bennett, 873 S.W.2d 824, 827 (Ky. 1994), more fully explains
the prior law:
KRS 342.120(4) [now KRS 342.120(6)] specifically
exempts the employer from paying income benefits for prior,
active disability or for disability resulting from the arousal of a
previously dormant condition. However, KRS 342.020 contains
no such exemption regarding medical benefits. Liability for
medical expenses requires only that an injury was caused by work
and that medical treatment was necessitated by the injury.
Regardless of whether an injured worker’s disability actually was
caused by the arousal of a previously dormant condition rather than
by the work-related injury, itself, the employer has been held
liable for the payment of medical benefits relative to the injury.
(Emphases added.)
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assessing the evidence so flagrant as to cause gross
injustice.
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
We perceive no such error in the case before us. On the contrary, we
agree with the Board’s sound analysis.
Accordingly, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Marcel Smith James Martin
Lexington, Kentucky Lexington, Kentucky
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