*/

Commonwealth of Kentucky 

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

                       * * * * * *

 

 

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 October 29, 2015 through March 17, 2016.  On October 29, 2014, Dr. Rison noted anti-inflammatory medication, muscle relaxants, and NSAIDs by another provider had proven unsuccessful.  The notes of Dr. Michael Fletcher and Dr. Rison consistently record improved activity and functionality on her medication regimen.  She is also obtaining good analgesia with no side effects.  Bennett reported her pain was reduced by half while taking the prescribed medication.

          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