Workers’
Compensation Board
OPINION ENTERED: October 13, 2017
CLAIM NO. 199960288
J-TOWN CONTRACTORS PETITIONER
VS.
APPEAL
FROM HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE
EMERY P. MARTIN
DR. MARK G. SMITH, and
AND HON. JANE RICE WILLIAMS,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
REVERSING
IN PART
AND REMANDING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. J-Town Contractors
(“J-Town”) appeals from the April 28, 2017 Opinion and Order and the June 1,
2017 Order rendered by Hon. Jane Rice Williams, Administrative Law Judge
(“ALJ”). In a reopening for a medical
dispute, J-Town challenged whether Emery Martin (“Martin”) is entitled to
treatment for a cervical condition. The
ALJ determined the recommended treatment is work-related and therefore
compensable.
On appeal, J-Town argues the ALJ drew impermissible inferences regarding
causation of the cervical condition. For the reasons set forth
herein, we reverse and remand.
Martin filed his claim on March 29, 2002 alleging injuries
to his right arm, right shoulder and neck[1]
on August 27, 1999. The injuries
occurred when Martin fell into a hole and a steel column landed on him. The claim was resolved by settlement
agreement approved May 5, 2003. The
agreement listed the right arm, right shoulder and neck as the affected body
parts, and listed occult instability right shoulder/rotator cuff as the
diagnosis. Martin retained his right to
future medical benefits.
J-Town filed a medical dispute on July 22, 2011 to
challenge renewed right shoulder treatment after an eight-year period without
treatment. That dispute was resolved in
Martin’s favor by the September 28, 2012 Opinion and Order of ALJ Jeannie Owen
Miller. Therein, ALJ Miller relied upon
Dr. Mark Smith’s opinion unequivocally linking Martin’s shoulder pain to his
prior shoulder injury of 1999.
Martin filed a motion to reopen on February 19, 2016 seeking
temporary total disability (“TTD”) benefits related to shoulder surgery
performed by Dr. Smith on January 21, 2016.
J-town agreed to voluntarily pay TTD benefits.
J-Town filed the present motion to reopen and Form 112 to
assert a medical dispute on August 1, 2016.
It challenged causation and work-relatedness of a cervical MRI
recommended by Dr. Smith.
Martin submitted the medical records of Dr. Smith and Erin
M. Gish P-AC of Ellis & Badenhausen Orthopaedics, documenting ongoing
treatment for Martin’s shoulder condition.
On March 2, 2016, PA Gish treated Martin for osteoarthritis and
recurrent dislocation of the right shoulder.
The treatment note makes no reference to cervical complaints or any
diagnosis related to the cervical spine.
On March 30, 2016, PA Gish noted Martin was seen for continued
complaints in the right shoulder after his subacromial decompression and AC
resection with intra-articular debridement performed on January 21, 2016, with
subsequent cervical strain. His chief
complaint was pain around the right trapezius muscle. PA Gish noted an active problem of “Sprain of
ligaments of cervical spine, initial encounter.”
On July 6, 2016, Martin again reported cervical pain. It was noted Martin may benefit from a TENS
unit to help his cervical strain. An MRI of the cervical spine was recommended
to determine if there is a pathologic problem such as a herniated disc “causing
the symptoms about his cervical strain or if this is simply a muscular issue.” Accordingly, Dr. Smith ordered a cervical MRI
to “evaluate for HNP” and prescribed a TENS unit “for cervical strain.” The adjuster denied these requests on July
12, 2016 stating the treatment is not for a work-related condition. A September 7, 2016 note recorded continued
tenderness in the neck area.
Martin introduced medical records pre-dating the present
medical dispute. Dr. Smith prepared a
June 20, 2012 report stating Martin suffered recurrent dislocations of his
right shoulder and thoracic outlet compressive syndrome. Dr. Smith indicated the symptoms in the right
trapezium and parascapular area, as well as the AC joint, were directly related
to the prior shoulder injury in 1999.
Dr. Smith did not identify any cervical pathology or symptomatology, or
diagnose a cervical condition.
Dr. Peter Kirsch conducted a records
review on June 7, 2016. Dr. Kirsch
opined further physical therapy for the right shoulder was not medically
necessary or appropriate for treatment of the 1999 injury. He found no objective evidence that the cervical
spine or the right trapezius would be involved in the 1999 injury. Therefore, he concluded the current cervical
spine and right trapezius complaints are not related to the work injury.
Dr.
Brian Pienkos conducted an independent medical
evaluation on August 5, 2016. Dr.
Pienkos indicated Martin’s chronic right shoulder pain is related to the 1999
work injury. On examination, Martin “had
no real symptoms related to the cervical spine” and had only some tenderness of
the trapezius muscle on the right, likely related to right shoulder pain. Accordingly, Dr. Pienkos found no active
cervical spine disease. Therefore,
Martin had no current cervical spine condition related to the 1999 injury. Martin would have reached maximum medical improvement around June 21,
2016. Dr. Pienkos did not think a
cervical MRI is either indicated or directly related to his original
injury.
After
reviewing the evidence, the ALJ found J-Town
had not met its burden of proving the challenged medical expenses are
unreasonable and unnecessary for the cure and/or relief of the effects of the
work injury. The ALJ then made the
following findings relevant to this appeal:
In the specific
instance, Defendant Employer has moved to reopen this claim challenging the
causation/work relatedness of [a] cervical MRI recommended by Dr. Smith,
physical therapy, cervical spine and right trapezius complaints, dry needling
and reasonableness necessity of a home TENS unit. Also, at issue is Plaintiff's
entitlement to and, if so entitled, duration of TTD following shoulder surgery
performed on January 21, 2016. As for TTD, Dr. Pienkos placed Plaintiff at MMI
on June 21, 2016. TTD would terminate at that point. As for the remaining
issues, after careful consideration of the evidence, the records from the
treating physician, Dr. Smith, are persuasive that the treatment - including
dry needling, physical therapy and a home TENS unit - is effective and related
to the work injury. Dr. Smith recommends the MRI and it is found compensable.
Dr. Smith's recent treatment records appear to be somewhat weak in the wording
of causation of ongoing cervical and trapezius treatment. However, the tone of
his opinion appears to be the current treatment is all related to the work
injury. While Dr. Smith may not have [provided]
the magic words in his most recent records, he provided this opinion
with those magic words in the records attached to the 2012 medical dispute. In
those records he found the tenderness in the right trapezius and periscapular
area as well as the acromioclavicular joint were an aggravation of the right AC
joint in trapezium and periscapular muscle pain. He found this to be directly
related to the prior shoulder injury of 1999. Therefore the contested treatment
is found reasonable, necessary, work related and compensable.
J-Town filed a petition for reconsideration, arguing the
ALJ misunderstood the scope of the reopening, which was limited to the
compensability of the cervical MRI.
J-Town noted Dr. Smith made no statement in the 2011 reopening
concerning the cervical spine, and there were no cervical complaints at the time. J-Town further emphasized the cervical
complaints arose in 2016 and had disappeared during treatment. Dr. Smith had offered no opinion regarding
causation and it is not clear he continued to recommend a cervical MRI after
2016.
The ALJ overruled the petition for reconsideration, holding
as follows:
… After rereading the evidence, particularly
the records of Dr. Smith on May 25, 2016, the ALJ’s opinion is unchanged. In
that record, Dr. Smith discusses ongoing treatment and states there is no new
injury to the shoulder. The discussion on the right shoulder and neck are so
intertwined, the idea that Dr. Smith believes he is treating a new unrelated
condition is not plausible. As noted by Defendant Employer, the neck pain may
no longer be an issue but in his May 25, 2016 record, it does not appear that
Dr. Smith finds a separate causation for the cervical complaints. Thus, having
reviewed the record and being otherwise sufficiently advised;
IT IS HEREBY ORDERED,
Defendant’s Petition for Reconsideration is OVERRULED.
On appeal, J-Town argues the ALJ erred in inferring causation
from Dr. Smith’s opinions introduced in the 2011 reopening. Dr. Smith had stated Martin’s symptoms in the
right trapezius, periscapular area, and AC joint were related to the 1999
injury. However, the current dispute
concerns the cervical spine. Dr. Smith
made no reference to the cervical spine in the 2012 reopening. Thus, J-Town argues Dr. Smith’s 2012 opinion
provides no basis for the ALJ’s inference, and the ALJ’s finding is purely
speculative. J-Town asserts the only
evidence addressing causation of the 2016 cervical condition are the 2016
opinions of Drs. Kirsch and Pienkos, who stated the cervical condition and
recommended MRI are not work-related.
At the outset, we emphasize that J-Town appeals only the
compensability of the cervical MRI. Its
medical fee dispute lists only the cervical MRI as a contested treatment. However, the benefit review conference order
identifies contested treatment as “cervical MRI, physical therapy, cervical
spine and right trapezius complaints, dry needling and a home TENS unit, TTD
following shoulder surgery performed January 21, 2016 (duration).” The ALJ
determined all of these treatments are compensable, and awarded TTD benefits
from January 21, 2016 through June 21, 2016.
In its petition for reconsideration, J-Town emphasized that it was
contesting only the cervical MRI. It
reiterated that position in its brief to this Board.
J-Town bore the burden of proof and the risk of
non-persuasion with respect to the reasonableness and necessity of the contested
medical treatment. National Pizza Co.
v. Curry, 802 S.W.2d 949 (Ky. App. 1991).
Because
J-Town was unsuccessful in its burden, the question on appeal is whether the
evidence compels a different result. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984). “Compelling
evidence” is defined as evidence that is so overwhelming, no reasonable person
could reach the same conclusion as the ALJ. REO Mechanical v. Barnes,
691 S.W.2d 224 (Ky. App. 1985). The function of the Board in reviewing
the ALJ’s decision is limited to a determination of whether the findings made
by the ALJ are so unreasonable under the evidence they must be reversed as a
matter of law. Ira A. Watson Department Store v. Hamilton, 34
S.W.3d 48 (Ky. 2000).
Causation is a factual issue to be determined
within the sound discretion of the ALJ as fact-finder. Union Underwear Co. v. Scearce, 896
S.W.2d 7 (Ky. 1995). When the question of causation involves a medical relationship not
apparent to a lay person, authority holds that the issue is properly within the
province of medical experts and an ALJ is not justified in disregarding the
medical evidence. Mengel v.
Hawaiian-Tropic Northwest and Central Distributors, Inc., 618 S.W.2d 184,
186-187 (Ky. App. 1981). Medical causation must be
proven by medical opinion within “reasonable medical probability.” Lexington Cartage Company v. Williams,
407 S.W.2d 395 (Ky. 1966). The mere
possibility of work-related causation is insufficient. Pierce v. Kentucky Galvanizing Co., Inc.,
606 S.W.2d 165 (Ky. App. 1980).
The diagnosis of a cervical strain first appears in the
records of Ellis and Badenhausen on March 30, 2016. The record refers to active problems of
osteoarthritis and recurrent dislocation of the right shoulder and “Sprain of
ligaments of cervical spine, initial encounter”. The 2016 records contain no history of when
the cervical strain occurred.
Significantly, Dr. Smith had previously treated Martin from 2002 to 2003
and again beginning in 2011 for the shoulder condition, but made no reference
to a cervical diagnosis, cervical complaints or cervical treatment prior to
2016.
Our review of the record reveals there were no cervical
complaints in the 2011 medical dispute.
Records from Dr. William C. Nash, filed by Martin in the original claim,
included a cervical MRI taken February 29, 2000. The MRI was interpreted by Dr. Michael Oliff
as normal, apparently ruling out any cervical spine injury. In a June 20, 2012 medical report, Dr. Smith
directly attributed Martin’s complaints to the shoulder injury, not to a
cervical condition. Any opinion of Dr.
Smith regarding Martin’s complaints in 2011 and 2012 were limited to the
shoulder/trapezius, and are not a basis to support a determination that Dr.
Smith believed cervical complaints/treatment in 2016 are related to the 1999
injury.
Nothing in the 2016 records address how the cervical strain
first diagnosed in March 2016 is related to the 1999 injury. Any connection between the remote injury and
a new diagnosis approximately seventeen years later is one that must be
established by competent medical opinion.
No physician has stated the trapezius complaints have their origin in
the cervical spine. To the contrary, Dr.
Pienkos specifically related the pain in the trapezius is most likely related
to the shoulder condition and Martin has no real symptoms related to a cervical
condition.
Here, the only medical experts who directly addressed the
issue of work-relatedness of the cervical condition or cervical treatment were
Drs. Kirsch and Pienkos. Both concluded the cervical spine condition is not
related to the work injury.
Though the ALJ is permitted to draw inferences
from the evidence, those inferences must be both reasonable
and based on substantial evidence of
record. See Jackson v.
General Refractories Co., 581 S.W.2d 10
(Ky. 1979). The record contains no substantial evidence to support an inference that Dr. Smith
believed Martin had cervical complaints in 2016 related to the 1999 injury. The inferences drawn by the ALJ from the
report of Dr. Smith to find that Martin’s cervical treatment was related to his
work amounts to mere speculation or mere possibility, and are not based upon
substantial evidence.
For these reasons, we conclude Dr. Smith’s 2011 report does
not constitute substantial evidence supporting the conclusion Martin’s current
cervical complaints are related to his work injury. There being no other medical opinions
supporting the work-relatedness of Martin’s cervical complaints, we believe the
proof compels a finding in J-Town’s favor regarding the compensability of the
cervical MRI. J-Town has not appealed
the compensability of the remainder of the treatments, and acknowledges these
treatments relate to Martin’s work-related shoulder injury.
Accordingly, that portion of the April 28, 2017 Opinion and Order and the June 1, 2017 Order rendered by Hon. Jane Rice Williams, Administrative Law Judge, finding a cervical MRI is compensable is hereby REVERSED. The remainder of the ALJ’s Opinion shall remain in effect. This claim is REMANDED for entry of an amended decision in accordance with this Opinion.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON DOUGLAS A U’SELLIS
600 EAST MAIN STREET, SUITE 100
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON BEN HAYDON
PO BOX 1155
BARDSTOWN, KY 40004
ADMINISTRATIVE
LAW JUDGE:
HON JANE RICE WILLIAMS
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
[1] It is readily apparent from the treatment
notes of Dr. Nash, and Martin’s deposition testimony, that his reference to a
problem in the neck is to a knot and pain in his trapezius muscle.