OPINION ENTERED: December 31, 2008
CLAIM NO. 05-01757
RICHARD WAGNER PETITIONER
VS. APPEAL FROM HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE
WAL-MART STORES #1053
and HON. IRENE STEEN,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
VACATING & REMANDING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. Richard Wagner (“Wagner”) appeals from an opinion and order dated July 16, 2008 which sustained Wal-Mart Stores #1053 (“Wal-Mart”) motion to reopen/medical fee dispute relieving it of the responsibility for payment of a total knee replacement on work-relatedness grounds. Wagner also appeals from an order dated August 27, 2008 which denied his petition for reconsideration. On appeal, Wagner argues the ALJ committed reversible error by prospectively ruling in favor of Wal-Mart on the compensability issue involving the total knee replacement based on the fact the parties agreed at the benefit review conference (“BRC”) the medical fee dispute concerning the total knee replacement was not presently ripe for adjudication.
Wagner originally filed his application for benefits on November 22, 2005 in which he alleged that on April 29, 2005, he sustained an injury to his left knee which occurred while moving boxes from a cart to a pallet while working for Wal-Mart. On January 16, 2007, after proof was taken and a formal hearing held, ALJ Terry approved a settlement agreement in which the parties settled for $5,400.00 to be paid in a lump sum as a compromised settlement. Of the $5,400.00 lump sum payment, $3,614.54 represented 14 weeks of past due temporary total disability plus interest. The remaining $785.46 represented the present value of a permanent partial disability benefit which would have been paid over 90 weeks pursuant to KRS 342.730(4). The settlement agreement did not provide for a waiver of future medical expenses.
On December 3, 2007, Wal-Mart filed a motion to reopen/medical fee dispute and motion to join medical provider. In the motion, Wal-Mart disputed the need for a total knee replacement of the left knee as proposed by Dr. Eugene Jacob on the ground the surgery was to address significant degenerative arthritis in the left knee which was present prior to the work accident and was due to the degenerative arthritis rather than the work injury of April 29, 2005.
In support of the medical fee dispute, Wal-Mart attached an independent medical evaluation from Dr. Robert Baker dated November 15, 2007 in which Dr. Baker opined based upon his physical examination and history of pain, and review of medical records, Wagner had significant degenerative arthritis in his left knee, primarily involving medial compartment and the patellofemoral joint. Dr. Baker noted, from x-ray studies and Dr. Jacobs’ intraoperative description, it was more probable than not, the significant degenerative changes described were present prior to the incident which occurred on April 29, 2005. He stressed it was evident the only surgical option of practicality remaining was a total knee replacement if Wagner’s condition should reach a point where it significantly affected his activities. He opined it was reasonable to say the symptomatic torn meniscus was most likely caused by the incident of April 29, 2005. He opined, however, the incident itself was not the direct or the most predominant cause for the degenerative joint disease findings and the possibility of a total knee replacement having to be performed. Dr. Baker based this opinion on (1) the operative findings and (2) the fact the majority of individuals which have had a partial posterior horn meniscectomy do not subsequently require a total knee replacement.
In an order dated January 24, 2008, Chief ALJ Lowther sustained Wal-Mart’s motion to reopen/medical fee dispute to the extent the medical fee dispute was assigned to an ALJ for further adjudication. In the same order, Dr. Eugene Jacob, the medical provider, was joined as a party to this claim on reopening. As a result of this order, a February 18, 2008 order was issued by the Commissioner assigning this claim to ALJ Thacker for further adjudication. A BRC was scheduled to be held on June 10, 2008 at 8:30 a.m. in Louisville, Kentucky. In an order dated May 13, 2008, the claim was reassigned to Judge Irene Steen. At the BRC held on June 10, 2008, ALJ Steen wrote the following under “Other Matters”: “Case is moot. The Pl. does not want the T.K.R. now issue an order”. This BRC Order & Memorandum form further revealed no contested issues were left to be litigated. The form was signed by the attorneys representing the parties acknowledging they had seen and agreed to what the ALJ had written under “Other Matters”.
Nothwithstanding the above, and without a formal hearing being held and no briefs having been filed before the ALJ in this matter, in an opinion and order on the medical fee dispute dated July 16, 2008, ALJ Steen found the need for a total knee replacement was as a result of Wagner’s degenerative changes in his knee rather than to the injury. As a result of this ruling, the ALJ sustained Wal-Mart’s motion to reopen to the extent Wal-Mart was relieved of having to pay for the total knee replacement should Wagner decide he wished to go ahead with this procedure at a later date. In the same opinion, the ALJ ordered Wagner to gather all outstanding unpaid medical bills incurred for the treatment of his knee and provide them to Wal-Mart within 14 days. The ALJ then ordered Wal-Mart to submit the bills for immediate payment unless Wal-Mart had a satisfactory reason as to why such bills were not to be paid.
Wagner filed a petition for reconsideration from this opinion and order. In the petition, Wagner alleged at the BRC, the ALJ announced she would enter an order dismissing the medical fee dispute as not being ripe for adjudication purposes. As such, Wagner argued in the petition, the ALJ committed patent error by prospectively ruling Wal-Mart was relieved from ever having to pay for a total knee replacement inasmuch as the issue was not ripe for adjudication.
In and order dated August 27, 2008, ALJ Steen stated the following in denying the petition for reconsideration:
This case is before this Administrative Law Judge (“ALJ”) following a Petition for Reconsideration filed by Plaintiff. In the Petition, Plaintiff alleges that this ALJ indicated at the time of the BRC that I would dismiss the MFD as not being ripe. This is simply not the case. This MFD was filed because Plaintiff wanted to undergo a total knee replacement and the Defendant did not want to pay for same and contested work relatedness. At the scheduled BRC Plaintiff advised that he had decided that he did not want to undergo the proposed surgery after all, thus rendering the issue moot at the time. Nonetheless, this ALJ issued an opinion in this matter that the knee replacement surgery was not work related, but rather was due to degenerative changes and thus the Defendant should not then, nor never [sic] in the future be responsible for the cost of said treatment. Therefore, there was a proper ruling regarding the future medical expenses relative to that knee and Plaintiff’s petition shall be and it is hereby overruled.
On appeal, Wagner argues the parties agreed 1) the total knee replacement was only mentioned in the records of Dr. Jacobs and had not been submitted or recommended to utilization review; 2) Wagner confirmed he did not presently want to pursue a total knee replacement; 3) As such, this rendered the medical fee dispute moot; and 4) the matter could be submitted without a hearing or briefs for an appropriate opinion. Wagner acknowledged he filed no proof on the issue based upon the agreement of the parties and argues he did not need to file any proof or a brief. Wagner then argues the ALJ verbally agreed to render an appropriate opinion indicating the medical issue was moot. Wagner points out, although the ALJ alluded to the fact the medical fee dispute was moot in her opinion, nevertheless, she proceeded to prospectively rule upon a medical issue which had not been submitted for an ALJ determination. As such Wagner argues the ALJ committed reversible error. It is Wagner’s position it did not file any proof since a total knee replacement had not been prescribed and since Wagner did not want to proceed with such a surgery. It is Wagner’s position the issue was simply not argued or briefed. Wagner then argues the parties did not intend for the ALJ to adjudicate such an issue and the ALJ committed reversible error in adjudicating the issue. As such, Wagner asks the Board to issue an appropriate opinion remanding this matter to the ALJ with directions to dismiss the medical fee dispute as not being ripe for adjudication.
In response, Wal-Mart argues in order to reverse the ALJ’s findings which were unfavorable to Wagner, the evidence must be so overwhelming as to compel a finding in his favor. Wal-Mart then points out, for evidence to be so compelling, it must be so overwhelming that no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky.App. 1985).
Wal-Mart points out the ALJ found the need for the total knee replacement was a result of Wagner’s degenerative changes in his knee, rather than the injury itself. It is Wal-Mart’s position, based on the medical evidence filed in the original litigation and in reopening, the finding by the ALJ as to causation for the total knee replacement was reasonable. Wal-Mart argues Wagner cannot meet his burden of showing evidence to the contrary was so overwhelming a reasonable person could not reach the same conclusion as the ALJ. Wal-Mart argues there was a dearth of evidence to the contrary. Although Wal-Mart points out Wagner claimed he was not able to file evidence to the contrary because he felt the issue was moot as discussed at the benefit review conference, Wal-Mart stresses Wagner did file medical proof in the original litigation and had every opportunity to file medical proof prior to the BRC in this reopening. Wal-Mart then cites to the fact both Dr. Jacobs and Dr. Baker agreed the need for a total knee replacement was as a result of the degenerative changes in Wagner’s knee. Wal-Mart then points out Dr. Jacobs’ medical report was filed in the original litigation.
Citing to KRS 342.125(7), Wal-Mart maintains the issue of compensability of a total knee replacement was raised in the original litigation and that the original hearing was cancelled due to a recent knee surgery1 and the parties had 60 days to present proof on the issues of reasonableness and necessity and causation of the June 1, 2006 surgery which had been performed and the proposed total knee replacement. Therefore, it is Wal-Mart’s position the issue of causation of the proposed total knee replacement would have been considered in the original litigation had the claim not been settled. Therefore, the same issue can be considered upon reopening pursuant to KRS 342.125.
803 KAR 25:010 Sect. 13 (11) provides as follows as it applies to the issues presented in this appeal:
(11) At the benefit review conference, the parties shall:
(a) Attempt to resolve controversies and disputed issues;
(b) Narrow and define disputed issues; and
(c) Facilitate a prompt settlement.
803 KAR 25:010 Sect. 14 provides only contested issues shall be the subject of further proceedings. (Emphasis added).
From a review of the BRC Order & Memorandum form signed by ALJ Steen, no contested issues were listed under “II. Contested Issues”. Moreover, under “Other Matters”, ALJ Steen wrote as follows:
Case is moot, the Pl. does not want the T.K.R. now. Issue an Order.
It is clear from the BRC Order & Memorandum form, the parties listed no contested issues were left to be adjudicated in this claim. Moreover, by agreement of the parties, the ALJ indicated the case was moot. As such, the issue decided by the ALJ in her opinion and order on the medical fee dispute dated July 16, 2008 was not properly before her. It is clear that the most Wal-Mart could have expected after acquiescing to the BRC Memorandum & Order was that its reopening and medical fee dispute would be dismissed without prejudice.
Accordingly, the opinion and order on the medical fee dispute dated July 16, 2008 is hereby VACATED and this matter is REMANDED to the ALJ with directions to dismiss Wal-Mart’s reopening and medical fee dispute without prejudice.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON CHED JENNINGS
239 S FIFTH ST STE 412
LOUISVILLE KY 40202
COUNSEL FOR RESPONDENT
HON R JOHNSON POWELL
WARD HOCKER & THORNTON PLLC
333 W VINE ST STE 1100
LEXINGTON KY 40507
ADMINISTRATIVE LAW JUDGE
HON IRENE STEEN
135 WEST IRVINE ST STE 301
RICHMOND KY 40475
1 This surgery involved a left knee arthroscopy which was performed on June 1, 2006.
