August 31, 2011 199767499

OPINION ENTERED:  August 31, 2011



CLAIM NO. 199767499





















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BEFORE:   ALVEY, Chairman, COWDEN and STIVERS, Members.

COWDEN, Member.    Triangle Pacific Insulation (“Triangle”) appeals from the March 18, 2011 opinion and order of Hon. Caroline Pitt Clark, Administrative Law Judge (“ALJ”) and from the ALJ’s April 14, 2011 order denying its petition for reconsideration.  In a post-settlement medical fee dispute, the ALJ determined a proposed cervical disc arthroplasty was work-related, reasonable and necessary. 

     On appeal, Triangle argues the ALJ erred in relying on Dr. El-Kalliny’s causation opinion and the ALJ’s decision was arbitrary, capricious or characterized by an abuse of discretion.[1] 

     Lana F. Burton (“Burton”) injured her neck and upper extremities on October 12, 1996, and her low back on August 18, 1998 while working for Triangle.  Her claim was settled based upon a permanent total disability on September 21, 2004.  Burton retained her right to future medical treatment and expenses pursuant to KRS 342.020. 

     On March 25, 2010, Triangle filed a motion to reopen and medical fee dispute contesting Dr. El-Kalliny’s requested pre-certification for surgical implantation of an artificial disc at C3-4 on the basis of reasonableness, necessity and work-relatedness.

     At her deposition taken August 23, 2010, Burton stated she injured her neck on April 12, 1996 when a fan blew some sheets of veneer and they “kind of mushed my neck over and caused some, caused pain in my neck and going down my arms.”  Burton testified she had three surgeries performed on her neck and had fusion surgery in her low back as a

result of the 1998 injury.  Additionally, she had injections, physical therapy and surgery on both elbows.  Burton stated she received benefit from those surgeries, but continued to have pain mostly on the right side of her neck, going into the base of her skull and down into her shoulders and arm.  She also had pain between her shoulder blades.  Burton related she had a sharp pain if she turned her head, causing migraines and nausea.  Her right hand would go numb often. 

     At the hearing held January 18, 2011, Burton stated she always had some pain in her neck following the work injury and it just kept getting worse.  Burton indicated she had pain in her shoulders and her hands were going numb.  She also was having migraine headaches.  Burton noticed a worsening of symptoms approximately one to two years earlier.  Burton stated she has pain beginning in her neck and radiating to her right hand, thumb and first two fingers.  Burton stated, “It feels like it’s trying to pry my shoulder blade up going down my neck and then goes down my arm.  And then I’m having migraines.”  She stated her problems had become more debilitating. She was no longer able to do laundry and had difficulty driving a vehicle because of limited motion in her neck.  She stated she had difficulty doing household chores.  Burton stated she had not worked since the 1998 injury.

     Burton filed voluminous medical records documenting treatment from February 18, 1998 through January 28, 2010 and reports from Dr. El-Kalliny, her treating neurosurgeon.  Dr. El-Kalliny began treating Burton in 1998 for complaints of neck and bilateral upper extremity pain.  Dr. El-Kalliny noted Burton related all of her symptoms to a work-related injury occurring in October 1996.  Dr. El-Kalliny performed a cervical discectomy and fusion at C5-6 in May 1998 and again in June 1998.  On October 4, 1999, he performed an anterior cervical discectomy and fusion at C6-7. 

     Dr. El-Kalliny prepared a Form 107 medical report on December 1, 1998.  He diagnosed status post anterior cervical discectomy and fusion at C5-6 and symptoms of right L5 radiculopathy.  He opined Burton’s injuries were caused by the October 1996 work-related accident.  Pursuant to the American Medical Association, Guides to the Evaluation of Permanent Impairment (“Guides”), Fifth Edition, Dr. El-Kalliny assigned a 15% whole body impairment, apportioning 30% to a pre-existing condition and 70% due to the arousal of a pre-existing degenerative condition.  He recommended restrictions of no lifting, pushing or pulling more than 25 pounds and indicated Burton should not return to the type of work performed at the time of the injury.

     Burton submitted the January 28, 2010 appeal letter of Dr. El-Kalliny addressed to the workers’ compensation insurance company.  Dr. El-Kalliny noted Burton was a 38 year old who was suffering from neck and right shoulder pain for the last three months with symptoms of radiculopathy.  The pain was noted to radiate into her upper extremity and she had numbness in her hand and fingers.  Dr. El-Kalliny noted the previous fusion surgeries and that an MRI of her cervical spine revealed a right-sided osteophyte formation at C3-4.  He noted Burton tried more conservative treatments including physical therapy.  Dr. El-Kalliny stated, “I believe that the pathology of degenerative disc disease at C3-4 has developed because of the natural progression of 20% increase adjacent disc disease after a previous fusion.”  Dr. El-Kalliny concluded the current complaints of neck pain and bilateral shoulder pain were related to Burton’s previous work-related injury.  Since Burton met the patient selection criteria and had not responded to other measures, Dr. El-Kalliny recommended cervical disc arthroplasty.  Dr. El-Kalliny stated there were two options for treatment of the condition at C3-4.  The first option was to perform an anterior cervical discectomy and fusion at C3-4.  The second option, and the one he preferred, was artificial disc replacement at C3-4 to preserve movement and decrease the incidence of adjacent disc disease at C4-5.

     Triangle introduced the January 4, 2010 utilization review peer report of Dr. Wolens.  Dr. Wolens noted the FDA approved the use of the Prestige cervical arthroplasty on July 16, 2007.  However, the data supporting that authorization was based upon a single level cervical pathology.  Dr. Wolens noted Burton had multi-level cervical pathology for which a two-level fusion had already been performed.  Therefore, he stated the data supporting the use of the cervical disc arthroplasty was in a patient population considerably different than that of Burton.  Dr. Woolens stated Burton had degenerative pathology two levels away from the fusion level.  Therefore, he stated:

Even if one were to accept the hypothesis of adjacent segment degeneration, the C3-4 level is not one that is adjacent.  Therefore, I would consider the pathology for which the cervical disc arthroplasty is being recommended to be unrelated to this individual’s prior cervical injury and treatment.


     Triangle filed the report of Dr. Timothy C. Kriss who evaluated Burton on November 1, 2010 at the request of Triangle.  Burton complained of deep pain under the medial border of the right shoulder, numbness and tingling in the right elbow, headache, and muscle burning and twitching.  Dr. Kriss reviewed medical records and diagnostic imaging studies, took a history, and performed a physical examination.  Dr. Kriss stated Burton had a C3-4 combination disc/osteophyte complex causing bilateral lateral recess and neural foraminal stenosis, right greater than left, with some radiographic impingement on the right C4 nerve root and spinal cord.  He also stated there was violation/irritation of the posterior longitudinal ligament at multiple levels in the cervical spine.  Dr. Kriss recommended conservative treatment.  He noted the only point of the proposed surgery was to relieve Burton’s symptoms.  Dr. Kriss opined it was highly unlikely proposed C3-4 surgery, whether it be artificial disc or routine discectomy and fusion, would relieve Burton’s symptoms.  He stated there was no clinical correlation between Burton’s main complaints and the pathology at C3-4.  Dr. Kriss indicated Burton’s migraine headaches were not work-related, but Burton would greatly benefit from treatment for her migraines regardless of causation.  Dr. Kriss stated it was important to acknowledge Burton had a formal diagnosis of histrionic personality features objectively confirmed by Dr. Sprague’s December 19, 2003 psychometric testing.  He noted Burton would react more hypochondriacally than 99.995% of the population.  Dr. Kriss recommended against any surgery at the C3-4 level.

     After reviewing the evidence and noting the positions of the parties, the ALJ rendered the following findings relevant to this appeal:

After careful consideration of all of the evidence presented herein, the Administrative Law Judge finds Dr. El-Kalliny has rendered the most accurate and authoritative assessment as to the causation of Plaintiff’s current cervical condition and the need for surgery, including placement of an artificial disc, and adopts his expert opinions on these issues.  The records show Plaintiff’s pathology at the C3-C4 level date back to 1999, when an MRI scan showed a protrusion at C3-C4, with deformity of the thecal sac.  Later diagnostic testing confirmed the problems at C3-C4, and Dr. Kriss agreed Plaintiff has a disc/osteophyte complex at C3-C4 causing bilateral lateral recess and neural foraminal stenosis, right greater than left, with some radiographic impingement on the right C4 nerve root and spinal cord.  The undersigned finds Dr. El-Kalliny’s explanation of causation, despite mistake referring to C3-C4 as an adjacent level, to also be persuasive as to the issue of causation.  Likewise, his explanation as to the need for implantation of an artificial disk is also well-reasoned and persuasive.  It is therefore determined that the Medtronic Prestige cervical disc arthroplasty to be conducted at C3-4, as recommended by Dr. El-Kalliny, is reasonable and necessary for the cure and/or relief of the effects of the work injuries Plaintiff sustained in 1996 and 1998, and Defendant Employer is liable for payment of the surgery and all related medical expenses.  


     Triangle filed a petition for reconsideration raising essentially the same arguments as it does on appeal regarding the ALJ’s reliance on Dr. El-Kalliny’s causation opinion.  By order dated April 14, 2011, the ALJ denied the petition for reconsideration noting the petition did not seek to correct errors patently appearing on the face of the award, but was merely a re-argument of the merits of the case.

     On appeal, Triangle argues the ALJ erred in relying on Dr. El-Kalliny’s causation opinion, which was clearly erroneous given the evidence of record.  Triangle argues Burton’s compensable cervical injuries described in the original claim and settlement agreement were herniated discs at C5-6 and C6-7.  Triangle asserts the disputed C3-4 disc space is not adjacent to the compensable C5-6 level since there is a disc level in between.  Thus, Triangle contends Dr. El-Kalliny incorrectly argues the C3-4 level was compensable because it was adjacent to the fused levels.  Accordingly, Triangle argues Dr. El-Kalliny’s causation opinion is flawed and Burton has produced no evidence to support her burden of proving the artificial disc replacement at C3-4 is related to the fusions at C5-6 and C6-7.  Triangle notes Dr. Kriss explained there is no medical or biomechanical process by which a discectomy and/or fusion at one level causes problematic disc herniations and osteophytes two levels away from the injured level.  Therefore, Triangle argues the ALJ’s reliance on the causation opinion of Dr. El-Kalliny is clearly erroneous on the basis of reliable probative and material evidence contained in the whole record and is arbitrary, capricious or characterized by an abuse of discretion.  Triangle contends the evidence compels a finding the C3-4 level at issue is not adjacent to the work-related levels of C5-6 and C6-7 and therefore not causally related and non-compensable.  Accordingly, it argues the ALJ’s decision must be reversed. 

     In a reopening to challenge medical expenses, the burden of proof is upon the employer with regard to reasonableness and necessity of treatment.  National Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. App. 1991).    Burton retained the burden of proof as to work relatedness/causation before the ALJ and was successful in that burden.  Therefore, the question on appeal is whether the decision is supported by substantial evidence.  Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky.App. 1984).  Substantial evidence is defined as evidence of relevant consequence having fitness to induce conviction in the minds of reasonable people.  Smyzer v. B. F. Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971).  The ALJ, as fact finder, has the authority to determine the quality, character, and substance of the evidence.  Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).  Similarly, the ALJ has the sole authority to judge the weight to be accorded the evidence and the inferences to be drawn therefrom.  Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997).  The ALJ 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.  Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000); Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999).  Mere evidence contrary to the ALJ’s decision is not adequate to require reversal on appeal.  Whittaker v. Rowland, supra.  In order to reverse the decision of the ALJ, it must be shown there was no substantial evidence of probative value to support the decision.  Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).

     The ALJ was well within her role as fact finder in choosing to rely upon the causation opinion of Dr. El-Kalliny.  The ALJ concluded Dr. El-Kalliny was most likely mistaken in stating the C3-4 level was adjacent to the fused levels.  The ALJ determined Dr. El-Kalliny’s causation opinion was the most persuasive.  Dr. El-Kalliny treated Burton since 1998 and was most familiar with her condition and in the best position to determine the causation of the condition at C3-4.  As noted by the ALJ, the records establish a protrusion at C3-4 and deformity of the thecal sac was evident as far back as 1999 when MRI scans revealed those changes.  A July 5, 2000 treatment note of Dr. El-Kalliny indicated the central disc protrusion at C3-4 could also be the source of her symptoms at that time.  As noted by the ALJ, Dr. Kriss agreed there was a disc/osteophyte complex at C3-4, causing bilateral lateral recess and neural foraminal stenosis.  Further, there was some impingement on the right C4 nerve root and spinal cord. 

     Clearly, the problem at the C3-4 level was apparent prior to the settlement agreement which was approved September 21, 2004.  Nothing in the settlement agreement limits medical expenses to the prior fused cervical levels.  The 1996 injury is described in the settlement agreement as “neck and right upper extremities, back and neck.”  It is also important to note the Form 101 described how the injury occurred and the body parts affected as “repetitive use of arms constantly lifting pieces of veneer and stacking on pallets caused injury to left and right upper extremities, back and neck.” 

     KRS 342.125(4) provides, in the reopening of a settlement agreement, nothing contained in the settlement agreement is binding, from a factual standpoint, upon the ALJ.  Therefore, even though the settlement agreement in this instance only referred to surgeries performed at the C5-6 and C6-7 levels, the ALJ, on reopening, was not limited to determining compensability and medical expenses directly related to those two spinal levels.  Rather, if the ALJ believed the C3-4 level was also affected by either the specific work injury or the alleged cumulative trauma injury, surgery to correct the problem at C3-4 is compensable regardless of whether the disc level is adjacent to the levels where prior surgeries were performed.  The ALJ was not only authorized, but obligated to consider the totality of the evidence and reach an ultimate conclusion as to whether the herniated disc at C3-4 for which the proposed surgery was recommended was causally related to the work injury.  There was substantial evidence of record upon which the ALJ could rely in finding the C3-4 level and the resulting need for surgery were related to the work injury.

     Accordingly, the decision of Hon. Caroline Pitt Clark, Administrative Law Judge, is hereby AFFIRMED.





333 W VINE ST STE 1100

























[1] Triangle notes in its brief to the Board oral arguments “would prove useful” inasmuch as the issue on appeal involves “some complex medical issues.”  The Board feels oral arguments will not be useful and therefore declines this request.