Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  August 1, 2014

 

 

CLAIM NO. 201181475

 

 

BRYANT HEATING & COOLING, INC.                 PETITIONER

 

 

 

VS.        APPEAL FROM HON. WILLIAM J. RUDLOFF,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

DAVID SHEARER,

JOSEPH L. LUKINS, M. D.,

and HON. WILLIAM J. RUDLOFF, ALJ,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

AFFIRMING

 

                       * * * * * *

 

 

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

 

 

RECHTER, Member.  Bryant Heating and Cooling, Inc. (“Bryant”), appeals from the August 12, 2013 Opinion and Order and the September 16, 2013 Order on Reconsideration rendered by Hon. William J. Rudloff, Administrative Law Judge (“ALJ”).  The ALJ determined David Shearer (“Shearer”) is entitled to physical therapy for relief of his work-related right shoulder injury.  On appeal, Bryant argues the evidence was insufficient to establish the physical therapy is related to Shearer’s work-related condition.  Because the ALJ’s conclusions are supported by substantial evidence, we affirm.

          On May 20, 2011, Shearer injured his right shoulder during the course and scope of his employment with Bryant.  He initiated a claim for workers’ compensation benefits on February 24, 2012.  Following the July 11, 2012 Benefit Review Conference, the parties agreed to settle the matter.  A settlement agreement was approved by the ALJ on August 3, 2012.  Under the terms of the agreement, Bryant remained liable for Shearer’s medical expenses for treatment of his right shoulder condition.  On October 18, 2012, Bryant filed a motion to reopen and a Form 112 medical dispute, contesting the reasonableness and necessity of additional physical therapy recommended by Dr. Joseph Lukins, Shearer’s treating orthopedic surgeon. 

          The basis of this medical fee dispute concerns the fact Shearer suffered a stroke in February of 2012, after he was injured but before his original claim had been settled.  Dr. Lukins had been treating Shearer’s work-related right shoulder injury for six months prior to the stroke.  On August 2, 2011, he performed a right rotator cuff tear repair.  Three weeks after this surgery, Dr. Lukins ordered physical therapy.  In office notes from four follow-up visits between September and November of 2011, Dr. Lukins ordered Shearer to continue with physical therapy.  In a December 28, 2011 office note recording Shearer’s last office visit prior to his stroke, Dr. Lukins reported he had excellent motion but continued weakness, particularly with grip strength.  Dr. Lukins stated Shearer should “continue to work on strengthening his right shoulder.”   

          Thereafter, Shearer missed several follow-up visits with Dr. Lukins due to the stroke. He next visited Dr. Lukins on May 14, 2012.  Dr. Lukins noted Shearer’s stroke caused hemiparesis and significantly weakened his right arm.  He reported:

[Shearer’s] right arm is certainly weaker now than when we saw him in February.  At that time the patient had almost full forward flexion and abduction.  He was significantly weak.  There was some crepitance above 90 degrees at that time.  Today, following the stroke, with the right hemiparesis, the patient can barely lift his arm to 70-80 degrees in forward flexion and abduction.

 

He recommended continued physical therapy. 

          The final office note contained in the record is dated October 1, 2012.  In that note, Dr. Lukins stated:

It has been about five months since we saw the patient last.  He has developed some improving strength in his shoulder following the stroke.  Still has limited motion of that shoulder with active motion to about 70-80 degrees of abduction.  Passively I can get him another 20 degrees.  Will try therapy to see whether they can help now that he has more muscle strength.

 

          The medical records from Danville Orthopedic Associates Physical Therapy indicate right upper extremity weakness and decreased endurance on January 4, 2012.  Following a January 13, 2012 physical therapy visit, the medical records indicate he could not lift a four-pound weight with his right arm.  A January 13, 2012 record notes Bryant’s workers’ compensation insurance carrier had refused to pay for any further physical therapy.  On January 29, 2012, the physical therapist requested reconsideration of the denial, stating Shearer had not reached full strength in the right shoulder. 

          Bryant submitted medical reports from Dr. Shelley Freimark, who conducted a medical records review.  In her opinion, Shearer had reached maximum medical improvement for his right shoulder injury and any worsening of his strength or decreased movement is related to his stroke.  Thus, any additional physical therapy was not related to the work injury.

          The ALJ ultimately concluded the physical therapy recommended by Dr. Lukins was reasonable and necessary for the treatment of Shearer’s work-related right shoulder injury.  He stated his reliance on Dr. Lukins’ opinion and the records from Danville Orthopedic Associates Physical Therapy.  Bryant petitioned for reconsideration, requesting additional findings of fact.  The petition was denied.

          On appeal to this Board, Bryant argues there is no evidence to support the conclusion the recommended physical therapy is related to Shearer’s work injury, as opposed to his stroke.  In a post-award medical dispute, the burden of proof regarding work-relatedness lies with the employee, while the employer bears the burden of establishing reasonableness and necessity.^[1]  Mitee Enterprises v. Yates, 865 S.W.2d 654 (Ky. 1993).  Bryant contends Shearer filed no evidence to establish the physical therapy relates to his work injury, and the circumstances strongly suggest that recommended therapy in fact relates to his stroke.     

          As Bryant emphasizes, Dr. Lukins’ does not expressly state in his office notes that the physical therapy recommended after Shearer’s stroke relates directly to the work injury.  However, the ALJ is entitled to draw reasonable inferences from the evidence.  Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997).  The office notes of both Dr. Lukins and the physical therapist generated prior to the stroke indicate Shearer had recovered much movement in his shoulder, but had yet to fully regain his strength.  For this reason, Dr. Lukins and Danville Orthopedic Associates Physical Therapy continued to recommend additional physical therapy in the weeks leading up to his stroke.  In fact, his physical therapist requested a reconsideration of the carrier’s denial of additional physical therapy.  Thus, while it is essentially undisputed Shearer’s stroke worsened the condition in his right arm and shoulder, there is substantial evidence indicating he was in need of additional physical therapy regardless.  We believe these facts established by the evidence constitute sufficient proof upon which the ALJ could conclude the physical therapy was necessitated by the work-related injury.

          For the foregoing reasons the August 12, 2013 Opinion and Order and the September 16, 2013 Order on Reconsideration rendered by Hon. William J. Rudloff, Administrative Law Judge, are hereby AFFIRMED.

          ALL CONCUR.

 

 

COUNSEL FOR PETITIONER:

HON BRIAN T GANNON

1315 HERR LN STE 210

LOUISVILLE, KY 40222

 

COUNSEL FOR RESPONDENT:

HON AUDREY HAYDON

PO BOX 1155

BARDSTOWN, KY 40004

 

ADMINISTRATIVE LAW JUDGE:

HON WILLIAM J RUDLOFF

PREVENTION PARK

657 CHAMBERLIN AVE

FRANKFORT, KY 40601