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Workers’
Compensation Board
OPINION ENTERED: June 16, 2017
CLAIM NO. 201200502
RANDY WEAVER PETITIONER
VS. APPEAL FROM HON. JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE
UNITED PARCEL SERVICE INC
AND HON. JONATHAN WEATHERBY,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION
AFFIRMING
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BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER,
Member. Randy Weaver (“Weaver”) appeals from the November 21, 2016 Opinion
and Order and the January 19, 2017 Order rendered by Hon. Jonathan R.
Weatherby, Administrative Law Judge (“ALJ”) resolving a medical dispute in
favor of United Parcel Service, Inc. (“UPS”).
On appeal, Weaver argues the ALJ erred in finding the disputed medical
treatment was unreasonable and unnecessary.
We affirm.
Weaver, a pilot for UPS, developed a respiratory condition
from exposure to volcanic ash while flying over Sweden on April 23, 2010. In an Opinion and Order dated March 27, 2015,
he was awarded permanent partial disability benefits based upon a 25%
impairment rating enhanced by the three multiplier. UPS filed a motion to reopen and medical
dispute on May 6, 2016 to challenge the reasonableness and necessity of Dr.
Swapna Chandran’s referral to National Jewish Health in Denver, Colorado.
In an August 8, 2016 letter, Dr.
Chandran noted Weaver had seen numerous providers including pulmonology, reflux
specialists, and ear, nose, and throat doctors.
Yet, the true source of his cough had not been determined. He characterized National Jewish Health as a
leading center for evaluation and management of airway reactive disorders. As such, it could provide a multispecialty
approach in a comprehensive setting with intensive daily therapy. Dr. Chandran stated only National Jewish Health
has the capability to provide this quality and intensity of care.
Dr. Bruce Broudy reviewed Weaver’s medical records at UPS’
request. In an August 30, 2016 report,
Dr. Broudy stated referral to the Denver facility for a second opinion was
reasonable but not necessary. He opined
other facilities in Louisville that specialize in pulmonary and ear, nose and
throat treatment could provide a second opinion.
The
ALJ found the opinion of Dr. Broudy persuasive and determined the referral to
National Jewish Health was reasonable but not necessary because there are other
facilities in Louisville that can provide a second opinion. Accordingly, the ALJ determined the referral
was non-compensable.
Weaver filed a petition for reconsideration arguing the
finding of reasonableness is sufficient as a matter of law to render the treatment
compensable. The ALJ summarily denied
the petition for reconsideration by Order dated January 19, 2017.
On appeal, Weaver argues the ALJ’s determination that the
proposed treatment is reasonable requires a finding of compensability due to
language found in the March 27, 2015 Opinion and Award. The Opinion and Award states:
Plaintiff shall further recover of
Defendant/Employer, and/or its insurance carrier, for the cure and relief from
the effect of Plaintiff’s workers compensation injury, such medical, surgical
and hospital treatment, including nursing, medical and surgical supplies and
appliances as may be reasonably required at the time of Plaintiff’s injury and thereafter
during disability.
KRS
342.020(1) requires an employer to pay for the cure and relief from the effects
of an injury “as may reasonably be required at the time of the injury and
thereafter during disability.” Thus, to
be compensable, a medical expense must be both reasonable and necessary. However, Weaver emphasizes the Opinion and
Award referred only to “reasonable” expenses.
Therefore, any “reasonable” treatment is compensable and, because there
was no appeal on this issue, it is the law of the case.
Weaver
correctly cites to the language contained on page 22 of the March 27, 2015
Opinion and Award. However, on page 21,
the Opinion and Award also states, “As to future medical expenses, the
Plaintiff should be entitled to the cost of reasonable and necessary treatment
for the cure and relief of his work related injury. KRS 342.020.” As such, we disagree that the language of the
Opinion and Order supersedes the statute, as Weaver argues.
In a post-award medical fee dispute, the employer
bears the burden of proving the challenged medical expenses are unreasonable or
unnecessary. Mitee Enterprises vs.
Yates, 865 S.W.2d 654 (Ky. 1993); National Pizza Company vs. Curry,
802 S.W.2d 949 (Ky. App. 1991). Since
UPS was successful before the ALJ in demonstrating the proposed referral was
unnecessary, the issue on appeal is whether substantial evidence supports the
ALJ’s conclusion. Special Fund v.
Francis, 708 S.W.2d 641 (Ky. 1986).
Substantial evidence has been defined as evidence of substance and
relevant consequence, having the fitness to induce conviction in the minds of
reasonable people. Smyzer v. B. F.
Goodrich Chemical Co., 474 S.W.2d 367 (Ky. 1971). Although an opposing party may note evidence
that would have supported a conclusion contrary to the ALJ’s decision, such
evidence is not an adequate basis for reversal on appeal. McCloud v. Beth-Elkhorn Corp., 514
S.W.2d 46 (Ky. 1974).
In the case sub judice, the medical experts agreed
the referral for a second opinion was reasonable. However, the ALJ was presented with
conflicting medical opinions as to the necessity of a referral to the facility
in Denver, Colorado. Dr. Broudy stated
providers in the Louisville area were capable of providing a second
opinion. Dr. Broudy’s opinion constitutes the requisite proof to support the ALJ’s finding that the
referral is not necessary. 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). Because the ALJ’s determination is supported by the record, we
are without authority to disturb his decision on appeal. Special
Fund v. Francis, 708 S.W.2d 641 (Ky. 1986).
Accordingly, the November 21, 2016 Opinion and Order and the January 19, 2017 Order rendered by Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON WAYNE C DAUB
600 W MAIN ST #300
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT:
HON K LANCE LUCAS
HON SARAH C ROGERS
1511 CAVALRY LN #201
FLORENCE, KY 41042
MEDICAL
PROVIDER:
SWAPNA CHANDRAN, MD
401 E CHESTNUT ST #710
LOUISVILLE, KY 40202
ADMINISTRATIVE
LAW JUDGE:
HON JONATHAN WEATHERBY
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
