Carlson Environment Consultants v. Jefferery Lane ( 2022 )

RENDERED: JULY 22, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0389-WC
CARLSON ENVIRONMENT
CONSULTANTS APPELLANT
PETITION FOR REVIEW OF A DECISION
v. OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-18-01315
JEFFEREY LANE; HONORABLE
JOHN BARRY COLEMAN,
ADMINISTRATIVE LAW JUDGE;
AND WORKERS’ COMPENSATION
BOARD APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND DIXON, JUDGES.
COMBS, JUDGE: Appellant, Carlson Environmental Consultants (Carlson),
appeals from an opinion of the Workers’ Compensation Board (Board) affirming
the decision of the Administrative Law Judge (ALJ). Carlson contends that the
claim should have been dismissed on procedural grounds and that the ALJ’s
decision was not supported by substantial evidence. After our review, we disagree
with these contentions and affirm.
On September 10, 2018, Lane filed an Application for Resolution of
Injury Claim (Form 101) alleging a May 16, 2018, left shoulder injury as a result
of tossing 50-pound bags of materials. To substantiate his claim, Lane submitted
the July 10, 2018, Patient Care Summary/office note of Dr. Don Aaron.
The claim was initially assigned to ALJ Tanya Pullin. In November
2018, Lane underwent surgery by Dr. Aaron. On December 21, 2018, Carlson
filed a December 18, 2018, letter report from Dr. Aaron stating that he could not
say that Lane’s left shoulder condition was related to or the result of an “on-the-job
injury.”
On January 8, 2019, ALJ Pullin placed the claim in abeyance. On
September 3, 2019, Lane filed the Form 107 IME1 report of Dr. Morgan Budde,
who diagnosed a left inferior labral tear, left AC joint arthritis, and left
subacrominal impingement syndrome. Dr. Budde assigned an 8% whole body
impairment rating under the Fifth Edition American Medical Association’s Guides
to the Evaluation of Permanent Impairment (AMA Guides), attributing the
impairment rating to the work injury as described. According to Dr. Budde’s Form
107 report, the history as related reflected that there was progressive left shoulder
1
Independent Medical Exam.
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soreness beginning in early 2018 and that there was no specific injury. Dr. Budde
clarified that Lane had a dormant arthritic condition in his left shoulder, which was
likely aroused by the physical work that he performed.
In October 2019, the claim was reassigned to ALJ Coleman. Carlson
filed updated medical records from Dr. Aaron. On August 17, 2020, Lane moved
to strike Dr. Aaron’s reports/records on the ground that contrary to the applicable
regulations, Dr. Aaron required a $1,500.00 non-refundable prepayment in order to
give a deposition, effectively precluding Lane from exercising his right to cross-
examine Dr. Aaron.2
By order entered August 31, 2020, the ALJ ruled as follows in
relevant part:
The ALJ notes that since [Dr. Aaron] is out-of-state,
there is no jurisdiction to require the physician to testify
or be subjected to the limitation of fees outlined in our
regulations. Therefore, unless the defendant pays for the
cost of cross examination, the medical opinions on
causation or impairment cannot be considered as
evidence by the ALJ. However, the treatment records
themselves may be filed for their statistical content under
the regulations. Therefore, the objection to the opinions
of Dr. Aaron is sustained. The medical records may
remain as filed. The opinion testimony of Dr. Aaron
2
Kentucky Revised Statute (KRS) 342.033 provides in relevant part that “[a] party may
introduce direct testimony from a physician through a written medical report. The report shall
become a part of the evidentiary record, subject to the right of an adverse party to object to the
admissibility of the report and to cross-examine the reporting physician.” 803 Kentucky
Administrative Regulation (KAR) 25:160(3) limits charges by medical providers for depositions
in workers’ compensation claims to “a maximum fee of $250 for the first one-half (1/2) hour of
testimony, and a maximum fee of $100 for each one-quarter (1/4) hour increment thereafter.”
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must be entered by means of deposition testimony
subject to cross-examination.
On September 15, 2020, Carlson filed a motion to dismiss, arguing as
follows:
As the ALJ has stricken from the record all probative
testimony from the treating surgeon Dr. Aaron, the
claimant’s Application [Form 101] officially has no
medical documentation supporting the claim for income
and medical benefits. . . . Here, the records attached to
the F101 fail to establish any causal connection to a work
related event. . . . As the claimant’s F101 is and was
deficient on its face pursuant to the mandatory
requirements of 803 KAR 25:010 Section 7, the claim
must be dismissed for failure to establish a prima facie
claim for a work-related injury. This is regardless of the
claimant’s IME not having an accurate injury history
when rendering opinion on causation.
By order entered September 25, 2020, ALJ Coleman explained that:
The defendant argues the plaintiff’s claim should be
dismissed as the application for benefits was not
supported by a medical opinion supporting causation.
The defendant argues the medical evidence supporting
the claim has a faulty history. The ALJ has yet to make
findings of fact on the claim regarding what the correct
history is. Therefore, the motion to dismiss is currently
overruled.
Ultimately, Carlson took Dr. Aaron’s deposition on February 19,
2021. On cross-examination, Dr. Aaron testified that although he could not say
that Lane’s shoulder condition was work-related, he could not say that it was not
work-related.
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On April 16, 2021, Lane filed the IME report of Dr. Jeffrey Fadel as
direct testimony. Dr. Fadel opined that Lane had preexisting dormant
acromioclavicular arthritis of the left shoulder aroused by the actions at work on
May 16, 2018, and assigned a 10% whole person impairment rating under the
AMA Guides.
On July 15, 2021, a final hearing was conducted by Zoom. On
September 8, 2021, ALJ Coleman rendered an opinion and award as follows in
relevant part:
In this instance, I am persuaded by the opinion of Dr.
Fadel that Lane is afflicted with acromioclavicular
arthritis of the left shoulder which was aroused by the
work-related events occurring on or about May 16, 2018.
As such, the issue of causation, work-relatedness and
injury as defined by the Act are resolved in favor of
Lane. I recognize that the treating physician was unable
to state whether or not the work activities described by
Lane was [sic] the inciting factor. However, Lane’s
credible testimony describes the onset of symptoms
occurring at that time. Dr. Budde and Dr. Fadel both
agreed that Lane’s condition was the result of arousal of
pre-existing changes into disabling reality.
ALJ Coleman denied Carlson’s motion to dismiss the claim on
procedural grounds:
Carlson has preserved its motion to dismiss to be
revisited in the final decision in this claim. Carlson
argues that Lane’s claim should have been dismissed for
failure to present medical evidence on causation within
reasonable proof time. The Administrative Law Judge
notes this claim was filed on September 10, 2018, with
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Lane alleging a work injury occurring in Kentucky on
May 16, 2018. The application notes that Lane was
treating for the left shoulder injury with Dr. Aaron, an
out-of-state physician. It is also noted Lane lives out of
state in Garfield, Georgia. The matter was originally
assigned to Administrative Law Judge Tanya Pullin . . . .
On September 3, 2019, Lane filed the medical report of
Dr. Morgan Budde, making out a prima facie case for
causation and impairment. While still in abeyance, the
matter was transferred to the undersigned Administrative
Law Judge on October 15, 2019. . . . The treatment
records of Dr. Aaron were allowed to be filed but opinion
evidence was stricken pending either party taking the
deposition of this out-of-state physician. Several delays
ensued and the deposition of the out-of-state physician
was ultimately taken by Carlson. Meanwhile, Lane
obtained a second medical evaluation that confirmed
causation of the left shoulder condition. Carlson argues
that the procedural history of the claim demands
dismissal. However, it appears that the claim was
delayed due to Carlson’s refusal to accept responsibility
for the claim based upon statements from lay witnesses
regarding how the injury occurred. The prior
Administrative Law Judge placed the matter in abeyance
pending treatment and Lane submitted medical evidence
supporting his claim. The parties were afforded ample
opportunity during the pandemic in which to obtain
medical evaluations or ultimately take the deposition
testimony of the treating physician. All of these things
occurred in order to afford both parties the opportunity to
proceed. The Administrative Law Judge notes Carlson
chose to rely on the lay witnesses and the testimony of
the treating surgeon while Lane chose to rely on his own
testimony, the opinion evidence from two medical
evaluators and, in part, on the testimony of the treating
surgeon. The Administrative Law Judge notes that both
parties have been given the right to complete their
evidence despite the complications from having out-of-
state parties and the interruption of the Covid-19
pandemic. The motion to dismiss is overruled.
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The ALJ awarded Lane income benefits for temporary total and
permanent partial disability and medical expenses for his left shoulder injury
pursuant to KRS 342.020. Both parties filed petitions for reconsideration which
the ALJ denied by order entered on October 5, 2021.
On October 7, 2021, Carlson filed its notice of appeal to the Board.
The thrust of Carlson’s first argument to the Board was that ALJ Coleman had
committed reversible error in disregarding previous “rulings” that ALJ Pullin had
made from the bench to the effect that the employer need not secure additional
medical proof in light of Dr. Aaron’s opinion. Carlson contended that “it does not
make sense” for the “faulty opinions” of Lane’s IME physicians to carry more
weight than Dr. Aaron’s opinion testimony. Carlson also argued that both Dr.
Aaron’s and Lane’s testimony undercut the ALJ’s “thesis” that Lane had a dormant
condition aroused into disabling reality.
By opinion rendered on March 11, 2022, the Board affirmed. The
Board explained that there are no video or audio recordings at BRCs (Benefit
Review Conference) or status conferences3 and that “a conversation between the
ALJ and counsels [sic] is strictly that and clearly cannot be viewed as an Order.”4
3
803 KAR 25:010 Section 13(7) provides that “[a] transcript of the BRC shall not be made.”
4
At pages 7-8 of its opinion, the Board reviewed the written orders that ALJ Pullin had filed. It
is noteworthy that on December 10, 2018, ALJ Pullin passed Carlson’s motion to dismiss to the
BRC; on January 4, 2019, ALJ Pullin passed another motion to dismiss to the BRC; and on
September 30, 2019, ALJ Pullin denied another of Carlson’s motions to dismiss the claim.
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The Board determined that any issue regarding orders striking Dr. Aaron’s opinion
testimony was moot because Dr. Aaron’s deposition had been taken and was filed
into evidence. The Board concluded that there was “no reversible error in the
rulings” by ALJ Coleman.5
On April 8, 2022, Carlson filed a petition for review on appeal to this
Court. On April 27, 2022, Lane filed a response. On May 9, 2022, Carlson filed a
motion for leave to submit a reply to Lane’s response, which we grant by separate
order.
Our role in reviewing an appeal from the Workers’ Compensation
Board is limited.
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
assessing the evidence so flagrant as to cause gross
injustice.
Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
Carlson first argues that “the ALJ’s striking Dr. Aaron’s records and
opinions should have resulted in the dismissal of [the] claim.” It reasons that the
medical record upon which Lane relied and which he filed in support of his Form
5
In its brief to the Board, Carlson also argued that Lane failed to provide due and timely notice;
that issue was not raised on appeal to this Court.
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101 (as required by 803 KAR 25:0106) was from Dr. Aaron. Carlson submits that
ALJ Coleman’s failure to dismiss the claim requires reversal as a matter of law.
We do not agree.
As ALJ Coleman noted, Lane had filed Dr. Budde’s report on
September 3, 2019, making out a prima facie case for causation and impairment --
before the case was reassigned and well before entry of the August 31, 2020, order
striking any opinions contained in Dr. Aaron’s records.
It has long been accepted that an ALJ has broad
discretion to control the taking and presentation of proof
in a workers’ compensation proceeding. Although a goal
of Chapter 342 and the regulations is to facilitate the
prompt and informal resolution of workers’
compensation claims, they do not deprive an ALJ of the
authority to make exceptions where warranted by
circumstances that arise during litigation.
New Directions Housing Authority v. Walker, 149 S.W.3d 354, 358 (Ky. 2004)
(citations omitted). Thus, there was no abuse of discretion in ALJ Coleman’s
denial of Carlson’s motion(s) to dismiss.
Next, Carlson contends that Lane failed to prove that his injury was
work-related. Again, we disagree.
In a workers’ compensation case, the claimant has the
burden of proving every element of her claim. The ALJ
6
803 KAR 25:010 Section 7(d) requires that a medical report be filed with the Form 101 which
includes: “1. A description of the injury that is the basis of the claim; [and] 2. A medical
opinion establishing a causal relationship between the work-related events or the medical
condition that is the subject of the claim[.]”
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has the sole discretion to determine the quality, character,
and substance of the evidence and may reject any
testimony and believe or disbelieve various parts of the
evidence regardless of whether it comes from the same
witness or the same party’s total proof.
Where the party with the burden of proof was successful
before the ALJ, the issue on appeal is whether substantial
evidence supported the ALJ’s conclusion. . . .
Substantial evidence means evidence of substance and
relevant consequence having the fitness to induce
conviction in the minds of reasonable men.
French v. Rev-A-Shelf, 641 S.W.3d 172, 177-78 (Ky. 2022) (internal quotation
marks and citations omitted).
In the case before us, the evidence conflicting. As was his
prerogative, the ALJ was persuaded by Dr. Fadel’s opinion and found Lane’s
testimony regarding the onset of symptoms to be credible. Although another ALJ
may have decided this case differently, ALJ Coleman’s decision is supported by
substantial evidence, and we may not disturb it on appeal.
Accordingly, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE JEFFEREY
LANE:
James Compton
Lexington, Kentucky Ched Jennings
Louisville, Kentucky
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