Opinion
NO. 2017-CA-001549-WC
05-03-2019
JACOR BROADCASTING OF LEXINGTON APPELLANT v. LEANN TRUE NORTON; W. MICHAEL SPURLOCK, D.C.; CHRISTIAN LATTERMAN, M.D.; TERRY TROUT, M.D.; HON. DOUGLAS W. GOTT, CHIEF ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Donald J. Niehaus Michael Thomas Kunjoo Lexington, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED PETITION FOR REVIEW OF THE WORKERS' COMPENSATION BOARD
CLAIM NO. WC-97-59280 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES. JONES, JUDGE: The Appellant, JACOR Broadcasting of Lexington ("JACOR"), appeals an opinion rendered by the Workers' Compensation Board ("Board"). Therein, the Board affirmed the Administrative Law Judge's ("ALJ") determination that Leann True Norton's right knee injury was causally related to a 1997 work-related accident that Norton settled in 1999. Because Norton reserved the right to all reasonably necessary future medical treatment for her work-related injuries as part of the settlement, the ALJ concluded JACOR was responsible for paying for Norton's past and future treatment for her right knee injury. For the reasons more fully explained below, we AFFIRM.
I. FACTUAL & PROCEDURAL BACKGROUND
On March 26, 1997, Norton suffered multiple injuries in a work-related motor vehicle accident. JACOR, in conjunction with its carrier, Zurich-U.S., agreed to settle Norton's workers' compensation claim. The parties completed a Form 110 settlement agreement, which they presented to the ALJ for approval. In the "Injury" section of the Form 110, the parties stated that "OV hit IV injuring multiple body parts." The injuries and affected body parts were listed as "neck, back, left shoulder, and left knee." Under the terms of the settlement agreement, Norton received a lump sum payout of $2,841.65 as compensation for the 1% knee impairment and 5% back impairment she suffered because of the accident. The settlement did not include a waiver or buyout of either past or future medical expenses. Norton, who was not represented by counsel, signed the agreement as did Ginny Howard, the carrier's representative. It was approved by the ALJ on July 13, 1999.
Norton continued to treat for her work-related injuries in the years following the settlement; however, there were no additional filings by the parties until June 10, 2016, when Norton, acting without the assistance of counsel, filed a motion to reopen with the Department of Workers' Claims. Therein, Norton asserted that she injured both knees in the 1997 accident and had been receiving treatment for her right knee for some time. She explained that until recently JACOR's carrier had always covered all her treatment, including the treatment she received for her right knee injury. She alleged that the carrier had wrongly refused to continue covering the treatment for her right knee injury. Norton attached several pages of medical records to her motion to reopen, which detailed her past medical treatment on her right knee and the need for additional treatment. Along with the motion to reopen, Norton filed a Form 112 Medical Dispute, which joined her various physicians along with JACOR. Norton's motion to reopen and medical dispute were assigned to an ALJ for further consideration.
The ALJ granted Norton's motion to reopen to resolve the medical dispute. Thereafter, JACOR disputed Norton's claim. It argued: (1) the 1999 settlement agreement included a right to medical benefits for only those body parts that were listed on the Form 110 (neck, back, left shoulder and left knee); and, alternatively, (2) Norton's right knee condition is not causally related to her 1997 motion vehicle accident. JACOR also filed its own medical dispute. Therein, JACOR asserted that the chiropractic treatment Norton was receiving was not reasonably necessary to treat her back injury because there was no documented evidence of an objective functional improvement in Norton's condition after having undergone fourteen chiropractic visits.
The ALJ held a telephonic Benefit Review Conference ("BRC") on the pending medical disputes. As part of the BRC, parties stipulated as follows: (1) Norton's work-related injury occurred on March 26, 1997, and was settled by agreement on July 13, 1999; (2) the medical providers whose bills or treatment are at issue are Dr. Christian Lattermann, Dr. Terry Trout, and Dr. Michael Spurlock; (3) the medical providers were joined by prior order of the ALJ; (4) the issues to be determined by the ALJ are the reasonableness/necessity and causation/work-relatedness of chiropractic care and treatment for Norton's right knee, including the surgery recommended by Dr. Lattermann. A hearing was scheduled for January 30, 2017.
On March 29, 2017, the ALJ rendered an opinion and order on the medical disputes. The first several pages of the ALJ's opinion summarize the proof submitted by the parties. The summary is accurate and shows the ALJ understood and appropriately considered all the proof before him prior to deciding the issues. After summarizing the evidence, the ALJ turned to the first issue, the compensability of the treatment for Norton's right knee. The ALJ noted that JACOR disputed that it had any obligation to cover treatment for Norton's right knee based on reasonableness/necessity, causation/work-relatedness and statute of limitations. The ALJ rejected JACOR's arguments as follows:
[I]n a post-award settlement medical dispute, plaintiff retains the burden of proof with respect to the issue of work-relatedness. In the present case, that issue centers around whether plaintiff's right knee condition for which Drs. Lattermann and Troutt offer or recommend treatment is directly and causally related to the work injury of March 26, 1997. The only evidence submitted by either party with respect to the issue of causation/work-relatedness was submitted by plaintiff in the form of treatment notes from Drs. Lattermann and Friesen. Dr. Lattermann discussed plaintiff's history and concluded "regarding the right knee I do believe this is related to a workers' compensation injury. She hit both knees against the dashboard." This is consistent with plaintiff's testimony with respect to the mechanism of injury. Further, Dr. Friesen, who treated plaintiff closer in time to the accident itself, confirmed at an office visit on October 8, 2007, that plaintiff had increasing symptoms with her right knee. He noted that she had been involved in a motor vehicle accident several years ago and that "both knees were injured, but the left was more severe than the right."
This is completely consistent with plaintiff's testimony regarding the development of her symptoms bilaterally. Dr. Friesen continued, "The right knee, however, has now developed some increasing symptoms of pain with catching sensation and intermittent swelling and a tendency to give away." The defendant/employer, for its part, has not submitted any evidence with respect to the
issue of work-relatedness/causation but relies, instead, upon the argument that since the right knee was not mentioned in the settlement agreement, it is precluded from compensability. That argument will be addressed below.
As to the threshold issue of whether plaintiff's right knee symptoms are directly and causally related to the motor vehicle accidence of March 26, 1997, the evidence is uncontradicted in establishing exactly that causal relationship. Unrebutted evidence compels a finding for the party that it favors unless the fact finder has a proper basis for rejecting it. Franklin Ins. Agency Inc. v. Simpson, 2008 WL 5051613 (Ky.). Having reviewed the evidence in this matter, including the treatment notes and records submitted by the parties and at the deposition of Patricia Painter, the undersigned discerns no reasonable basis on which to reject the unrebutted expert medical opinion of Dr. Lattermann. Plaintiff's right knee condition is found, therefore, to be directly and causally related to the underlying work-related motor vehicle accident.
With respect to the defendant/employer's essential argument that because the settlement agreement does not mention the right knee as an injured body part, the right knee is non-compensable, the undersigned infers that the settlement agreement was drafted by the carrier's adjuster, and not plaintiff. More importantly, KRS 342.125(7) provides,
When an agreement has become an award by approval of the administrative law judge, and the reopening and review of that award is initiated, no statement contained in the agreement, whether as to jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter, shall be considered by the administrative law judge as an admission against the interests
of any party. The parties may raise any issue upon reopening and review of this type of award which could have been considered upon an original application for benefits.
Stated simply, no representations, and by implication, no admissions in the settlement agreement shall be construed as an admission against the interest of any party. That the settlement agreement does not specifically reference the right knee is immaterial with respect to the present reopening/medical dispute.
Similarly, although the defendant/employer argues that the right knee claim is barred pursuant to KRS 342.270, the so-called joinder/merger statute, that argument likewise fails. KRS 342.270(1) specifically refers to an application filed by a claimant. No application was filed in the present case as the matter was settled by agreement. The merger/bar provisions of KRS 342.270 do not preclude compensability of the right knee injury.
. . .
The undersigned finds it of particular significance that the defendant/employer, although being well aware of Dr. Lattermann's request for pre-authorization for right knee surgery, never submitted that matter to utilization review and never filed its own medical dispute to contest compensability of that treatment. The only medical dispute filed by the defendant/employer was to contest chiropractic treatment. As a matter of law the defendant/employer would be precluded from denying compensability of the proposed medical treatment under these circumstances. Lawson v. Toyota Motor Mfg. Kentucky, Inc., 330 S.W.3d 452 (Ky. 2010).
Although the defendant/employer preserved a contest regarding the compensability of the proposed surgery by Dr. Lattermann on the basis of reasonableness and necessity, it offered no medical proof to satisfy its burden
on that issue. Accordingly, the undersigned finds that this aspect of the medical dispute is resolved in favor of plaintiff, and the defendant/employer shall immediately pre-certify treatment of plaintiff's right knee as recommended by Dr. Lattermann.(R. at 366-69).
With respect to the compensability of the chiropractic treatment, the ALJ found the proof submitted by Norton's treating physician, Dr. Spurlock, to be more persuasive. To this end, the ALJ concluded: "[b]ased on the reports of Drs. Nemastil and Spurlock, the undersigned finds that the defendant/employer has failed to carry its burden of proving that ongoing chiropractic treatment is not reasonable and necessary for treatment of plaintiff's underlying work-related injuries."
Following an unsuccessful petition for reconsideration, JACOR appealed to the Board with respect to the ALJ's conclusion that Norton's right knee treatment was compensable. Citing KRS 342.125(7), the Board agreed with the ALJ that the settlement agreement could not be used against Norton as an admission that she injured only the listed body parts.
This appeal followed.
II. STANDARD OF REVIEW
Pursuant to KRS 342.285, the ALJ is the sole finder of fact in workers' compensation claims. Our courts have construed this authority to mean that the ALJ has the sole discretion to determine the quality, character, weight, credibility, and substance of the evidence, and to draw reasonable inferences from that evidence. Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985); McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46, 47 (Ky. 1974). Moreover, an ALJ has sole discretion to decide whom and what to believe and 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 adversary party's total proof. Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
On review, neither the Board nor the appellate court can substitute its judgment for that of the ALJ as to the weight of evidence on questions of fact. Shields v. Pittsburgh & Midway Coal Mining Co., 634 S.W.2d 440, 441 (Ky. App. 1982). In short, the reviewing body cannot second-guess or disturb discretionary decisions of an ALJ unless those decisions amount to an abuse of discretion. Medley v. Board of Education, Shelby County, 168 S.W.3d 398, 406 (Ky. App. 2004). Discretion is abused only when an ALJ's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
When reviewing questions of law, an appellate court is bound neither by the decisions of an ALJ nor the Board regarding proper interpretation of the law or its application to the facts, and in such matters, the standard of review is de novo. Bowerman v. Black Equipment Company, 297 S.W.3d 858, 866 (Ky. App. 2009).
III. ANALYSIS
As an initial matter, we note that Norton did not file a brief in this matter. When an appellee fails to file a brief, Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) authorizes this Court to "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." We elect not to impose any penalty on Norton.
According to JACOR, joinder and the applicable statute of limitations prevent Norton from alleging a work-related injury to her right knee. JACOR argues that Norton's alleged right knee injury was not indicated on any initial claim documents, not indicated in any initial medical treatment or visits, and was not included in the Settlement Agreement. To this end, JACOR posits that KRS 342.270(1) should be applied to settlement agreements in the same way it is to claims. However, as noted by both the ALJ and the Board, KRS 342.270(1) only applies where an application of resolution of injury claim is filed because the parties "fail to reach an agreement in regard to compensation." In this case, no application was filed because the parties reached a prior settlement. As such, KRS 342.270 does not apply.
The settlement did not contain a buy-out of future medicals. Thus, upon approval of the agreement, JACOR remained responsible for all reasonable and necessary medical expenses pursuant to KRS 342.020. While Norton could not go back and attempt to now seek wage-related benefits because of the right knee injury, the settlement agreement specifically left open her ability to seek reimbursement for all reasonable and necessary medical expenses. We do not believe that her right to do so was limited in any way by her failure to list the exact body parts on the Form 110 that she might at some future point need to have treated because of the injury. See Jo Ann Coal Co., Inc. v. Smith, 492 S.W.2d 192, 193 (Ky. 1973) ("Appellant has cited no case, and we know of none, holding that where a claimant has entered into an agreement for compensation predicated on an injury to a specific member of the body he may not reopen and recover compensation for disability caused by secondary involvement of another part of the body resulting from the same accident. It is our opinion that claimant is not so restricted."); Commonwealth v. Allen, 2012-SC-000099-WC, 2013 WL 5205850, at *5 (Ky. Apr. 25, 2013) ("There is no merit to the UEF's argument that Allen waived his right to address his thoracic spine injury claim [even though it was not listed in the settlement agreement]").
Moreover, the language or statements made in the settlement agreement cannot be used against Norton in a reopening the way JACOR would use them. To this end, KRS 324.125(7) states "[w]here an agreement has become an award by approval of the administrative law judge, and a reopening and review of that award is initiated, no statement contained in the agreement, whether as to jurisdiction, liability of the employer, nature and extent of disability, or as to any other matter, shall be considered by the administrative law judge as an admission against the interests of any party. The parties may raise any issue upon reopening and review of this type of award which could have been considered upon an original application for benefits."
Regarding the work-relatedness of Norton's alleged right knee injury and the surgery recommended by Dr. Lattermann, the ALJ noted that only Norton provided any evidence regarding this issue, through treatment notes of both Drs. Lattermann and Friesen. The ALJ relied on that evidence to determine that the right knee injury was causally related to the 1997 accident. The underlying records support the ALJ's decision. Nothing in the record compels a different result. Accordingly, the decision of the Board is affirmed.
IV. CONCLUSION
For the reasons set forth above, the September 1, 2017, opinion of the Board is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Donald J. Niehaus
Michael Thomas Kunjoo
Lexington, Kentucky NO BRIEF FOR APPELLEE