Workers’
Compensation Board
OPINION ENTERED: November 4, 2016
CLAIM NO. 201471662
POINT ARC OF NORTHERN KENTUCKY PETITIONER
VS. APPEAL FROM HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE
GERI BENNETT
HON. JOHN B. COLEMAN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Point Arc of Northern
Kentucky (“Point Arc”) appeals from the May 13, 2016 Opinion and Award and the
June 9, 2016 Order rendered by Hon. John B. Coleman, Administrative Law Judge
(“ALJ”) awarding Geri Bennett (“Bennett”) income and medical benefits for
cervical and shoulder injuries. On
appeal, Point Arc argues the ALJ misinterpreted or failed to properly consider
the evidence from Dr. John
Vaughan, improperly relied upon an impairment rating from Dr. Mark Sperbeck, and erred in awarding future pain management and
chiropractic treatment. For the reasons
set forth herein, we affirm.
Bennett testified by deposition on April 27, 2015, and at
hearings held June 29, 2015 and March 23, 2016.
Bennett was employed by Point Arc, a laundry, where she processed linens
and sheets. She testified she sustained
strain injuries to her neck and upper extremities on August 2, 2014 while
pulling sheets out of an ironing machine.
Bennett initially continued to perform her regular work, but was later
placed on light duty. She worked on
light duty until her supervisor forced her to perform a job that exceeded her
capacity in October 2014. She left work
immediately after, and attempted to work for two different employers but was
unable to maintain those positions due to her limitations.
Bennett continues to see Dr. Allan Rison, a pain
specialist, and Dr. Sperbeck, a chiropractor. In the past, Dr. Rison administered
injections that provided relief for two to five weeks, and reduced her pain by
half, but they were discontinued when her insurance would no longer pay for the
treatment. Bennett testified her
condition worsened after the injections were discontinued. Dr. Rison continues to prescribe pain
medication, and Bennett testified her chiropractic treatment provides “a lot”
of relief for 48 to 72 hours. She
continues to have tightness, cramping and headaches as a result of the neck
injury. She has tightness, numbness,
aching, and muscle spasms in her upper extremities. She experiences tingling and numbness in her fingers, and on the left side has difficulty with her wrist
and gripping.
Bennett submitted medical records and a November 11, 2015
report from Dr. Sperbeck. Dr. Sperbeck
performed a disability evaluation on October 29, 2015. Bennett complained of neck pain which
radiates into her left shoulder and arm, and intermittent pain into her right
shoulder. Dr. Sperbeck
diagnosed shoulder sprain/strain on the right, and cervical and thoracic
sprain/strains. He placed Bennett in DRE
Category II and assigned an 8% impairment rating for Bennett’s cervical injury
pursuant to the American Medical Association, Guides to the Evaluation of
Permanent Impairment, 5th Edition (“AMA Guides”). He assessed a 5% impairment rating for the
right shoulder condition and an additional 2% for pain, producing a combined
15% whole person impairment.
Bennett submitted records from Interventional
Pain Specialists documenting treatment from
Point Arc submitted the report of Dr.
Vaughan who performed an independent medical evaluation (“IME”) on August 20,
2015. Dr. Vaughan diagnosed a chronic
cervical strain and cervical spondylosis (degenerative changes). He opined these conditions were not causally
related to the work event based upon prior similar symptoms. Dr. Vaughan opined Bennett had a prior active
impairment of 5% for her cervical spine.
Any aggravation or irritation of the condition by the work event
produced no additional impairment. He
felt no permanent restrictions or additional medical treatment was needed as a
result of the work event.
The ALJ found Bennett sustained cervical and right shoulder
strains as a result of the August 2, 2014 work injury. He accepted the 5% impairment rating assessed
by Dr. Vaughan for the cervical condition and the 5% impairment rating assessed
by Dr. Sperbeck for the shoulder condition. However, the ALJ rejected the additional 2%
impairment rating assessed by Dr. Sperbeck for
pain. The ALJ concluded pain management
and chiropractic care are compensable, and awarded future medical expenses with
the exception of narcotic medication.
Point Arc filed a petition for reconsideration arguing the
ALJ erred in his assessment of the evidence from Dr. Vaughan, in finding future
medical treatment compensable, and in awarding more than the 5% impairment
rating assigned by Dr. Vaughan. By order
dated June 9, 2016, the ALJ denied Point Arc’s petition for reconsideration as
a re-argument of the merits.
On appeal, Point Arc first claims the ALJ failed to
properly consider Dr. Vaughan’s opinion.
It asserts Dr. Vaughan found the shoulder injury was a temporary strain
and did not assess a permanent impairment rating. Point Arc contends the ALJ erroneously
stated Dr. Vaughan did not comment on the right shoulder strain.
Contrary to Point Arc’s assertion, Dr. Vaughan does not
address the shoulder condition in his report, much
less opine that she sustained a temporary shoulder strain. Dr. Vaughan’s evaluation addressed only the
cervical condition. He mentions
radicular pain from the neck to the arm, but never addresses any alleged
shoulder injury. We find no basis to conclude
the ALJ improperly assessed the evidence from Dr. Vaughan. The
ALJ acted within his discretion to determine which evidence to rely upon, and
it cannot be said the ALJ’s conclusions are so unreasonable as to compel a
different result. Ira
A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).
Point Arc argues the ALJ improperly relied on Dr. Sperbeck’s impairment rating because it disregards the
express terms of the AMA Guides and, therefore, cannot constitute
substantial evidence. According to Point
Arc, the AMA Guides do not permit use of range of motion where there is
documented evidence of symptom magnification or voluntary limiting behavior.
We find no error in the
ALJ’s reliance upon Dr. Sperbeck’s impairment rating
for the shoulder condition. On numerous occasions, this Board has stated the proper way to challenge a doctor’s impairment rating is to present medical
testimony concerning the impropriety of an impairment rating
or cross-examine the doctor. In this
case, Dr. Sperbeck’s impairment
rating was not critiqued by any other physician, nor was his deposition
taken. No objection was made to the
admissibility of his opinion. Thus, Dr. Sperbeck’s methodology for rating the shoulder condition
went unquestioned.
Moreover, the ALJ enjoys
the discretion to choose whom and what to believe. Staples, Inc. v. Konvelski, 56 S.W.3d 412 (Ky. 2001). The proper interpretation of the AMA Guides
and any assessment of an impairment rating in accordance with the Guides
are medical questions. Kentucky River Enterprises, Inc. v. Elkins, 107 S.W.3d 206 (Ky.
2003). A fact-finder does have
the authority to consult the Guides when determining the weight to be
assigned the evidence, though he is not necessarily compelled to do so. Caldwell Tanks v. Roark, 104 S.W.3d
753 (Ky. 2003).
Point Arc’s challenge to
Dr. Sperbeck’s impairment rating lacks
specificity. Though correctly noting
that symptom magnification or voluntary limiting behavior may render an
evaluation unreliable, it identifies no documented evidence of Bennett engaging
in such conduct. Our review of the
record reveals Dr. Vaughan observed, “a component of
somatization”. However, Dr. Sperbeck does not indicate any such conduct following his
treatment of Bennett. We are satisfied
Dr. Sperbeck’s opinion constitutes substantial
evidence supporting the ALJ’s decision. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky.
1985). Point Arc’s assertions go
to the weight to be afforded the evidence, and are insufficient to invalidate
an impairment rating.
Point Arc next challenges the determination pain management
and chiropractic treatment are compensable, arguing the finding is not
supported by substantial evidence. It
contends Dr. Vaughan’s opinion is the only evidence on the question of the
reasonableness and necessity of the medical treatment. He specifically stated medical treatment is
not necessary for the work injury.
Pursuant to KRS 342.020, medical expenses reasonably
necessary for the cure and relief of a work-related injury
are compensable. Square
D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Because the ALJ determined the work injuries
merited an award of PPD benefits, as a matter of law, Bennett is entitled to an award of medical benefits. See FEI Installation, Inc. v. Williams, 214 S.W.3d 313 (Ky.
2007). She has a permanent impairment
rating for the cervical and shoulder injuries and thus is entitled to an award
of future medical care. Non-curative
treatment is compensable if it is palliative.
In National Pizza v. Curry, 802 S.W.2d 949 (Ky. App. 1991),
the Kentucky Court of Appeals held:
We are
convinced that our legislature by using the conjunctive “and” did not intend
that only one who has sustained a “curable” work-related injury or disease
should be entitled to medical benefits for relief therefrom. Accordingly, we hold that the words in KRS
342.020(1) “cure and relief” should be construed as “cure and/or relief.” See
KRS 446.080 and Firestone Textile Company Division, Firestone Tire and
Rubber Company v. Meadows, Ky., 666 S.W.2d 730 (1984), which states that
“[a]ll presumptions will be indulged in favor of
those for whose protection the enactment [the Workers' Compensation Act] was
made.” Id. at 732.
Thus KRS 342.020(1) requires the employer of one determined to have
incurred a work-related disability to pay for any reasonable and necessary
medical treatment for relief whether or not the treatment has any curative
effect.
Id. at 951.
Based on the evidence
from Drs. Sperbeck and Rison, the ALJ could
reasonably conclude the chiropractic and pain management treatment provides
relief and improves functionality.
Further, Bennett’s testimony indicates she has a substantial reduction
in her symptoms as a result of her pain management and chiropractic treatment. This proof constitutes substantial evidence
supporting the ALJ's determination the contested medical treatment is
reasonable and necessary. Point Arc
certainly retains the ability to challenge whether medical expenses related to
the injuries are reasonable or necessary in the future, should it be presented
with any expenses related to these injuries.
Accordingly, the May 13, 2016 Opinion and Award and the June 9, 2016 Order rendered by Hon. John B. Coleman, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON MARCEL SMITH
300 EAST MAIN ST
SUITE 400
LEXINGTON, KY 40507
COUNSEL
FOR RESPONDENT:
HON MICHAEL WEBER
1726 YOUNG ST
SUITE 1
CINCINNATI, OH 45202
ADMINISTRATIVE
LAW JUDGE:
HON JOHN B. COLEMAN
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601