Square D Co. v. Tipton ( 1993 )

OPINION OF THE COURT

This case concerns the standard by which an employer must prove that a medical treatment for which an injured worker seeks compensation benefits is not reasonable or is not necessary for the cure and relief of the effects of the injury. KRS 342.020.

On February 18,1986, claimant, an assembly line worker, left work due to pain in her right wrist and sought medical attention. During the next 15 months, she was placed on light duty, the pain increased, and her right elbow and shoulder became affected. Eventually, her left shoulder also became painful. During this time she was paid temporary, total disability benefits for two periods, totalling approximately 3½ months. Then, on May 14, 1987, she quit working altogether. Her employer paid voluntary benefits until April 12, 1989.

Claimant was treated by a number of physicians and a chiropractor and began consulting Dr. E. Atasoy, a hand surgeon, in February, 1987, before she quit working. Dr. Ata-soy diagnosed thoracic outlet compression, radial tunnel compression, and radial epicon-dylitis. X-rays were unremarkable, and nerve conduction studies were normal. In June, 1987, he performed a radial tunnel release, which claimant testified relieved much of the pain in her elbow. Claimant received scalene muscle injections on January 29, 1988, and on February 13, 1988, which failed to reheve the wrist and shoulder problems. Dr. Atasoy explained that when the thoracic outlet space is compressed, the nerves which pass through that area can become entrapped, causing pain. In April, 1988, he performed a right, first rib resection, a procedure which involves removing the rib and some muscle tissue, in an attempt to reheve claimant’s right wrist and shoulder symptoms. In July, 1988, claimant was given an injection of cortisone for wrist discomfort. Claimant testified that, while her neck movement was improved by the surgery, her wrist and shoulder pain have remained unchanged.

Finally, in March, 1989, Dr. Atasoy recommended that claimant undergo a scalenecto-my, the surgical removal of the scalene muscle in the right side of her neck. The goal of the procedure was to decompress the nerves and blood vessels in the thoracic outlet and to thereby relieve claimant’s continuing symptoms. When her employer’s insurance company refused to pay for the proposed procedure and, on April 12, 1989, stopped paying voluntary benefits, the instant claim ensued.

The ALJ reviewed all of the medical evidence and concluded that the more persuasive testimony established that the scalenec-tomy was neither reasonable nor necessary for the cure and relief of claimant’s condition as required by KRS 342.020. Claimant was awarded a 60% occupational disability benefit. The decision was affirmed by the Workers’ Compensation Board (Board).

The Court of Appeals reversed, however, because it believed that the testimony of each of the three doctors who testified for the defense was flawed. The Court also held that “the proper test for reasonableness is whether a competent physician and an informed patient may reasonably believe that the benefits of the proposed procedure are such as to outweigh the risks.”

We have considered each of the three “flaws” in the medical evidence cited by the Court of Appeals. However, after reviewing the evidence in its entirety and the opinion of the ALJ, we believe that the Court of Appeals usurped the role of the fact finder regarding both the facts and the inferences to be drawn from the medical evidence. The ALJ, as the finder of fact, and not the reviewing court, has the sole authority to determine the quality, character, and substance of the evidence. Paramount Foods, Inc. v. Burkhardt, Ky., 695 S.W.2d 418 (1985). Where, as here, the medical evidence is conflicting, the question of which evidence to believe is the exclusive province of the ALJ. Pruitt v. Bugg Brothers, Ky., 547 S.W.2d 123 (1977).

We also disagree regarding the standard by which KRS 342.020 requires an ALJ to determine the compensability of a medical procedure or treatment. KRS 342.-020(1) allows a worker to choose her own physician and to have whatever medical treatment is reasonably necessary for the cure and/or relief of her injury. The burden of proving that a treatment is unreasonable is on the employer. National Pizza Co. v. Curry, Ky.App., 802 S.W.2d 949 (1991). While the injured worker must be given great latitude in selecting the physician and treatment appropriate to her case, the worker’s freedom of choice is not unfettered. KRS 342.020(3) indicates that the legislature did not intend to require ah employer to pay for medical expenses which result from treatment that does not provide “reasonable benefit” to the injured worker. An employer may not rely on this section simply because he is dissatisfied with the worker’s choice, for example, or because the course of treatment is lengthy, costly, or will not provide a complete cure. We believe, however, that this section relieves an employer of the obligation to pay for treatments or procedures that, regardless of the competence of the treating physician, are shown to be unproductive or outside the type of treatment generally accepted by the medical profession as reasonable in the injured worker’s particular case. We also believe that such decisions should be made by the ALJs based on the particular facts and circumstances of each case, so long as there is substantial evidence to support the decision.

In National Pizza, supra, cited by the court, the disputed treatment had already been performed. While the treatment appeared to provide the worker with only limited relief, the employer was required to pay for it because the worker had testified that it provided some relief; whereas, the employer had introduced no evidence that the treatment was not considered by the medical profession to be a reasonable course of treatment for the worker’s condition and no evidence that the treatment was ineffective.

In the instant case, the procedure had not yet been performed. All the physicians who testified, including Dr. Atasoy, agreed that the procedure was controversial within the medical community. Unlike the employer in National Pizza, supra, this employer introduced evidence from three board certified orthopedic surgeons, all of whom, like Dr. Atasoy, specialized in surgery of the hand and upper extremities. As noted by the ALJ, one of these physicians had been consulted independently by the worker for a second opinion regarding the proposed surgery. They provided testimony that the procedure was dangerous and severe in nature; that this worker exhibited no objective signs of nerve compression in the thoracic outlet such as would justify considering the procedure; that the procedure was not recommended absent such objective evidence; and that personal observation of patients referred for the procedure and the medical literature both indicated that the procedure was only marginally effective in any event. None of these physicians believed that the claimant would benefit from the procedure; and, in fact, one believed that additional surgery would be detrimental to her well-being.

Under these circumstances, we believe that the ALJ’s decision that the proposed surgery was neither reasonable nor necessary for the cure and relief of this worker’s condition and that the employer should, therefore, not be required to pay for the procedure was supported by substantial evidence. It should not have been disturbed on appeal. Accordingly, the decision of the Court of Appeals is hereby reversed, and the decision of the Administrative Law Judge is reinstated.

STEPHENS, C.J., and REYNOLDS, SPAIN and WINTERSHEIMER, JJ., concur. LEIBSON, J., dissents by separate opinion in which COMBS and LAMBERT, JJ., join.