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July 7, 2017 200986519

Commonwealth of Kentucky 

Workers’ Compensation Board

 

 

 

OPINION ENTERED:  July 7, 2017

 

 

CLAIM NO. 200986519

 

 

RICHARD ROHLAND                                PETITIONER

 

 

 

VS.       APPEAL FROM HON. JONATHAN R. WEATHERBY,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

COX INTERIOR, INC.

HON. JONATHAN R. WEATHERBY,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING AND REMANDING

 

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

ALVEY, Chairman.   Richard Rohland (“Rohland”) appeals from the Opinion and Order rendered December 19, 2016 by Hon. Jonathan R. Weatherby, Administrative Law Judge (“ALJ”), resolving a medical free dispute in favor of Cox Interior, Inc. (“Cox).  The ALJ found the contested arthroscopy and mini open rotator cuff repair recommended by Dr. Sanjiv Mehta non-compensable.  Rohland also seeks review of the February 15, 2017 order denying his petition for reconsideration. 

          On appeal, Rohland argues the ALJ erred in relying upon the utilization review report of Dr. William Nemeth since he did not review Dr. Mehta’s opinion, Dr. Mark Smith’s opinion, or the September 24, 2012 Opinion, Order and Award rendered by Hon. Allison Emerson Jones, Administrative Law Judge (“ALJ Jones”).  Rohland argues the ALJ, as well as Drs. Nemeth and Gregory Gleis overlooked controlling precedent in the claim.  Because it is unclear whether the ALJ properly considered the findings made by ALJ Jones in her September 24, 2012 opinion and November 7, 2012 order granting Cox’s petition for reconsideration, we vacate and remand for additional findings of fact.   

          Cox filed a motion to reopen and medical fee dispute on March 28, 2016 challenging the procedure recommended by Dr. Mehta.  In support of its challenge, Cox filed the March 17, 2016 utilization review report by Dr. Nemeth, who noted a January 13, 2016 right shoulder MRI demonstrated a full-thickness supraspinatus tear at attachment, plus additional tendinopathy changes.  After reviewing the Form 110 settlement agreement and records from Drs. Mehta and Gleis, Dr. Nemeth opined Roland’s current symptoms and the request for right shoulder arthroscopy and mini open rotator cuff repair are not related to the April 9, 2009 work injury.  Dr. Nemeth stated the April 9, 2009 work injury had been repaired and his current condition is age related. 

          On April 22, 2016, the ALJ found Cox made a prima facie showing for reopening, sustained its motion to reopen, joined Dr. Mehta as a party, and scheduled a telephonic conference.  The parties challenged the proposed surgery based upon work-relatedness and causation.

          The parties filed the records of Dr. Mehta, who has treated Rohland since July 30, 2009.  On that date, Dr. Mehta diagnosed AC joint injury Grade II separation followed by post-traumatic AC joint arthritis with impingement syndrome and recommended surgical intervention.  In his September 15, 2009 report, Dr. Mehta opined carrying a one hundred pound sheet of glass caused the trauma to Rohland’s right shoulder.  Dr. Mehta recommended an arthroscopic subacromial decompression, acromioplasty and Mumford resection of the lateral end of the clavicle, which he did not perform until May 2010.

          Subsequent to the May 2010 procedure, Rohland continued to experience right shoulder pain, weakness, and difficulty lifting.  A January 31, 2011 right shoulder CT scan demonstrated a partial removal of the AC joint, mild glenoid osteophyte formation, and normal rotator cuff muscle tissue.  On March 29, 2011, Dr. Mehta stated, “Since the ultrasound report mentions that there is a possibility of a full thickness rotator cuff tear with a defect in tendon, I would recommend reexploration with possibility of repairing the defect in the supraspinatus tendon.” 

          Dr. Mehta prepared a June 29, 2011 report.  He concluded Rohland sustained an AC separation at the time of the work-related injury, which led to the development of post-traumatic arthritis.  Dr. Mehta stated he performed surgery in May 2010 to address the arthritis of the AC joint, but also found two tears including, “partial thickness tear of the insertion of the supraspinatus on the head of the humerus and a Glenoid Labrum tear.”  With regard to the tears, Dr. Mehta stated as follows:

. . . Mr. Rohland had pre-existing dormant Degenerative changes in his shoulder which probably included Degenerative Tears of the Glenoid Labrum.  The Degenerative changes, including Degenerative tears, were dormant and non-disabling prior to the work related lifting injury.  In my opinion the findings at surgery further confirm the diagnoses I made and my opinion regarding the cause of Mr. Rohland’s Right shoulder condition and need for surgery. . . .

 

Dr. Mehta also issued restrictions due to Rohland’s right shoulder injury. 

          On August 2, 2011, Dr. Mehta stated Rohland is not symptomatic enough for surgical intervention.  However, he noted a future arthroscopic evaluation may be necessary “if there is a residual tear of the rotator cuff and follow by internal rotation.  If there is a clinical indication for a rotator cuff repair, we certainly will be glad to offer that to the patient.”  On December 13, 2011, Dr. Mehta diagnosed right shoulder AC joint arthritis with rotator cuff tear.  He noted although Rohland continues to have right shoulder symptoms, “he is not interested in any surgical intervention because he has had his left shoulder worked on and the rotator cuff repair really did not help him to the extent that he would have liked.”

          In an opinion rendered September 24, 2012, ALJ Jones noted Rohland alleged he injured his right shoulder on April 29, 2009 when he lifted a large sheet of glass weighing approximately one hundred pounds.  ALJ Jones found the April 29, 2009 lifting incident caused Rohland’s right shoulder injury and his need for subsequent treatment and surgical intervention by relying upon the treatment records of Dr. Jerome Dixon and Dr. Mehta’s opinion.  Dr. Dixon initially treated Rohland, and diagnosed an acute right AC joint separation.  The ALJ reviewed the treatment notes of Dr. Mehta, including the June 29, 2011 report.  The ALJ also discussed a second report by Dr. Mehta, dated April 24, 2012, which was neither filed into evidence for the current medical dispute nor designated as evidence by the parties.  The ALJ stated as follows in summarizing the report:

In his report, Dr. Mehta specifically noted Dr. Kline’s MRI review and Dr. Smith’s opinion that the rotator cuff tears in Rohland’s right shoulder were not work-related.  Addressing the issue, Dr. Mehta opined:

 

Based on the history of no prior symptoms or treatment the MRI findings, as well as intraoperative findings in May of 2010, it is my opinion the degenerative changes, including the degenerative tears were dormant and non- disabling prior to Mr. Rohland’s work-related injury.  It is further my opinion the degenerative tears in Mr. Rohland’s right shoulder have become symptomatic and have progressed as a result of Mr. Rohland’s April 29, 2009, work-related injury and subsequent treatment.  Should Mr. Rohland wish to proceed, surgical intervention is reasonable and necessary treatment and is a result of the April 29, 2009, work injury.   

 

          ALJ Jones relied upon the 9% impairment rating assessed by Dr. Smith.  ALJ Jones found Rohland was unable to return to his former employment as a glass cutter based upon his testimony and Dr. Mehta’s opinion.  ALJ Jones found Rohland entitled to a period of temporary total disability benefits.  With regard to future medical expenses, ALJ Jones stated Cox is obligated to pay for reasonable and necessary medical treatment for the cure and/or relief of his right shoulder injury, “including the proposed additional right shoulder injury as recommended by Dr. Mehta.”   

          In the November 7, 2012 Order on petition for reconsideration, ALJ Jones stated she relied on Drs. Mitchell Kline and Mehta to determine the proposed surgery is related to the April 2009 work injury.  She specifically relied upon the April 24, 2012 report by Dr. Mehta.  Dr. Kline detected tears on images from a 2009 MRI report.  ALJ Jones also noted Rohland did not identify an injury subsequent to April 2009 and has remained in pain since his original work injury. 

          Thereafter, the parties entered into a post-award lump sum settlement, approved by ALJ Jones on December 20, 2012.  Rohland retained his right to medical treatment.  He did not have the second surgery.

          The records indicate Rohland did not return to Dr. Mehta until April 8, 2014, when he complained of persistent right shoulder pain and weakness.  A May 12, 2014 MRI demonstrated mild degenerative changes without a complete rotator cuff tear.  Dr. Mehta treated Roland conservatively in 2014 and 2015, with diagnoses of right shoulder rotator cuff tear with post-traumatic arthrosis.  On May 22, 2015, Dr. Mehta noted Rohland would eventually need a reverse total shoulder arthroplasty.  A January 13, 2016 right shoulder MRI demonstrated a full thickness partial tear of the distal supraspinatus tendon.  On February 10, 2016, Dr. Mehta diagnosed a right shoulder rotator cuff tear with impingement syndrome, and recommended a right shoulder arthroscopy, Mumford resection, and a mini open repair of the rotator cuff.

          Dr. Mehta also answered a questionnaire on September 28, 2016.  He checked “yes” to the following questions: Do the opinions set forth in your June 29, 2011 report remain the same?; Is the surgery you are currently recommending due to the partial tear of the supraspinatus tendon noted in 2011?; Is the recommended surgery reasonable and necessary treatment for the effects for Mr. Rohland’s July 30, 2009 work-related injury?; and, Have all your answers been within reasonable medical probability?

          Rohland filed Dr. Smith’s September 9, 2011 report.  He diagnosed a sprain and aggravation of Rohland’s pre-existing arthritis in his AC joint.  Dr. Smith also noted Rohland suffered from a rotator cuff tear, which he opined is unrelated to the work injury.  Dr. Smith opined the additional surgery noted by Dr. Mehta on March 29, 2011 is reasonable and necessary treatment of the rotator cuff tear, but is not related to the work injury.  Dr. Smith assessed a 9% impairment rating and assigned permanent restrictions. 

          Cox filed Dr. Gleis’ August 15, 2016 report, who had previously examined Rohland on March 15, 2010, and responded to a questionnaire on April 1, 2010.  Rohland reported he has not returned to work since 2009 and has not had the second surgery authorized by ALJ Jones.  He continues to have right shoulder symptoms and treats with Dr. Mehta and Dr. Sherry Jones, his primary care physician.  Dr. Gleis performed an examination and reviewed the medical records.  Dr. Gleis then noted he requested Dr. David Westerfield, who prepared both reports for the May 2014 and January 2016 MRIs, to clarify his findings.  Dr. Westerfield stated the 2014 MRI did not show a complete rotator cuff tear but rather some tendinopathy, while the 2016 MRI showed a full-thickness rotator cuff tear.  Comparing the two MRIs, Dr. Westerfield opined the 2016 MRI demonstrated a definite worsening, including the “new” rotator cuff tear.  Dr. Gleis opined Rohland’s current symptoms could be due to a new rotator cuff tear since the May 2010 surgery which is not due to the April 9, 2009 work injury.  Dr. Gleis also stated a right shoulder joint replacement is not indicated.    

       In an October 20, 2016 order, the parties stipulated to a work-related injury on April 29, 2009.  That claim was decided by a September 24, 2012 Opinion Order and Award, and the settlement was approved on December 20, 2012.  The parties identified the contested issue as to the work-relatedness of an arthroscopy and mini open rotator cuff repair recommended by Dr. Mehta.  The parties waived their right to a hearing.  

       In the December 19, 2016 opinion, the ALJ acknowledged Rohland retained the right to medical benefits reasonably required for the cure and/or relief of the effects of the work injury as determined by ALJ Jones in the September 24, 2012 decision.  The ALJ then summarized Dr. Gleis’ opinion, the radiology report dated January 31, 2011, Dr. Nemeth’s March 17, 2016 report, and the records of the Dr. Mehta.  The ALJ provided the following analysis:    

In a post-judgment Motion to Reopen to Assert a Medical Fee Dispute, Defendant Employer has the burden of proving that the contested medical expenses and/or proposed medical procedure is unreasonable or unnecessary, while the Plaintiff maintains the burden of proving that the contested medical expenses and/ or proposed medical procedure is causally related treatment for the effects of the work-related injury. Mitee Enterprises vs. Yates, 865 SW2d 654 (KY 1993) Square D Company vs. Tipton, 862 SW2d 308 (KY 1993) Addington Resources, Inc. vs. Perkins, 947 SW2d 42 (KY App. 1997). In addition, the legislature’s use of the conjunctive "and" which appears in subsection 1 of KRS 342.020 "cure and relief" was intended to be construed as "cure and/or relief". National Pizza Company vs. Curry, 802 SW2d 949 (KY 1991).

 

The Defendant Employer has moved to reopen this claim to challenge the reasonableness and necessity of arthroscopy and mini open rotator cuff repair. After review of the evidence, it is determined that the opinion of Dr. Nemeth is persuasive in that the Plaintiff’s current symptoms are due to his age and there was no additional injury and/or situation that could connect this to the work-related injury.

 

Therefore, the contested procedure is found not reasonable and necessary for the cure and/or relief of the work injury and, therefore, is non-compensable.

 

 

          Rohland filed a petition for reconsideration requesting additional findings of fact regarding the June 29, 2011 report by Dr. Mehta and the September 9, 2011 report by Dr. Smith indicating he had a rotator cuff (distal supraspinatus) tear for which surgical repair was reasonable and necessary.  He also requested additional findings addressing ALJ Jones’ opinion finding the proposed right shoulder compensable.  The ALJ summarily denied the petition in an order dated February 15, 2017.

          On appeal, Rohland argues the ALJ overlooked controlling statute or precedent in finding the challenged surgery non-compensable.  He argued the following dates are relevant: 1) March 29, 2011, Dr. Mehta recommended re-exploration or shoulder with possibility of repairing the defect in the supraspinatus tendon; 2) June 29, 2011, Dr. Mehta opined the degenerative changes and tears were brought into symptomatic and disabling reality by Rohland’s injury; 3) Cox denied authorization for surgery; 4) September 9, 2011, Dr. Smith concurred with need for surgery; 5) December 13, 2011, Rohland declined to proceed with surgery; and 6) September 24, 2012, ALJ Jones found the surgery compensable.

          Rohland asserts surgery was revisited in 2016.  Rohland argues Dr. Nemeth did not review Dr. Mehta’s June 29, 2011 opinion, Dr. Smith’s September 9, 2011 opinion, or the September 24, 2012 opinion rendered by ALJ Jones.  Rohland argues Drs. Nemeth and Gleis, as well as the ALJ, overlooked the controlling precedent in the claim, and requests his opinion be reversed and remanded for a finding the contested surgery by Dr. Mehta is compensable.   

          Cox filed a respondent’s brief arguing Rohland did not file a valid petition for reconsideration since he only requested additional findings of fact by the ALJ and failed to tender a proposed order. In the absence of a valid petition, Cox asserts Rohland’s time for filing a notice of appeal is not stayed.  Therefore, Cox argues since Rohland filed his notice of appeal well beyond the expiration of the 30-day period on March 16, 2017, his appeal is time barred and should be dismissed. 

          First, we note that notwithstanding the holding in C & T Hazard v. Chantella Stollings, et al., 2012-SC-000834-WC, 2013 WL 5777066 (Ky. 2013), an unpublished case from the Kentucky Supreme Court, a long line of reported decisions establishes in a post-award medical fee dispute, the employer bears both the burden of going forward and the burden of proving entitlement to the relief sought, except that the claimant bears the burden of proving work-relatedness. National Pizza Company vs. Curry, 802 S.W.2d 949 (Ky. 1991); Snawder v. Stice, 576 S.W.2d 276 (Ky. App. 1979); Addington Resources, Inc. v. Perkins, 947 S.W.2d 421 (Ky. App. 1997); Mitee Enterprises vs. Yates, 865 S.W.2d 654 (Ky. 1993); Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993). 

          Since Rohland bore the burden of proving the contested treatment is work-related, 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 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 that they must be reversed as a matter of law. Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          As fact-finder, the ALJ has the sole authority to determine the weight, credibility and substance of the evidence. Square D Co. v. Tipton, 862 S.W.2d 308 (Ky. 1993). Similarly, the ALJ has the discretion to determine all reasonable inferences to be drawn from the evidence. Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979). The ALJ 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. Magic Coal Co. v. Fox, 19 S.W.3d 88 (Ky. 2000). Although a party may note evidence that would have supported a different outcome than that reached by an ALJ, such proof is not an adequate basis to reverse on appeal. McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). The Board, as an appellate tribunal, may not usurp the ALJ’s role as fact-finder by superimposing its own appraisals as to the weight and credibility to be afforded the evidence or by noting reasonable inferences that otherwise could have been drawn from the record. Whittaker v. Rowland, 998 S.W.2d 479, 481 (Ky. 1999). So long as the ALJ’s ruling with regard to an issue is supported by substantial evidence, it may not be disturbed on appeal. Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986).

          However, such discretion is not unfettered.  In reaching a determination, the ALJ must properly apply the law, provide findings sufficient to support his finding, and inform the parties of the basis for the decision to allow for meaningful review.  Kentland Elkhorn Coal Corp. v. Yates, 743 S.W.2d 47 (Ky. App. 1988); Shields v. Pittsburgh and Midway Coal Mining Co., 634 S.W.2d 440 (Ky. App. 1982); Big Sandy Community Action Program v. Chafins, 502 S.W.2d 526 (Ky. 1973).

          It is unclear whether the ALJ specifically considered the findings made by ALJ Jones in the September 24, 2012 opinion and the November 7, 2012 Order on petition for reconsideration with regard to the second surgery.  The ALJ declined to address this issue in the Order on petition for reconsideration despite Rohland’s request additional findings of fact.  In the September 24, 2011 opinion, ALJ Jones determined Rohland sustained a permanent impairment due to the April 29, 2009 work injury.  Therefore, Cox is obligated to pay for reasonable and necessary medical treatment for the cure and/or relief of his right shoulder injury, “including the proposed additional right shoulder surgery as recommended by Dr. Mehta.”  Subsequent to the May 2010 surgery and at the time of the September 2012 opinion rendered by ALJ Jones, the records reflect Dr. Mehta recommended a re-exploration with possibility of repairing the defect in the supraspinatus tendon on March 29, 2011.  On August 2, 2011, Dr. Mehta indicated Rohland was not symptomatic enough to require surgery, but noted future surgery may be done, “if there is a residual tear of the rotator cuff and follow by internal rotation.  If there is a clinical indication for a rotator cuff repair, we certainly will be glad to offer that to the patient.”  On December 13, 2011, Dr. Mehta diagnosed right shoulder AC joint arthritis with rotator cuff tear.  He noted although Rohland continues to have right shoulder symptoms, “he is not interested in any surgical intervention because he has had his left shoulder worked on and the rotator cuff repair really did not help him to the extent that he would have liked.”

          ALJ Jones provided additional findings of fact and analysis is the November 7, 2012 order granting Cox’s petition for reconsideration addressing the work-relatedness of the proposed surgery.  In the order, ALJ Jones specifically found the proposed surgery related to the April 29, 2009 work injury based upon the opinions and records of Drs. Mehta and Kline.  ALJ Jones stated as follows:

The ALJ relied upon Drs. Mehta and Kline to determine that the proposed surgery is related to the April 29, 2009, work injury.  On April 24, 2012, Dr. Mehta issued a second medical report, in which he indicated he continues to “concur with the opinions set forth in [his] June 29, 2011, report.”  This second report was issued after he reviewed Drs. Moskal, Kline, and Smith’s opinions.  Dr. Mehta’s opinion is that the tears predated the injury and that the injury caused those tears to become symptomatic.  Dr. Kline’s report discusses the diagnostic reliability of the 2009 MRI versus the later MRI.  Furthermore, Dr. Kline detected tears on the images from the 2009 report.  Rohland did not identify any shoulder injury subsequent to the work-injury at issue.  He has remained in pain since the injury date.

  

 

          On remand, the ALJ is directed to consider and address ALJ Jones’ findings regarding the second surgery proposed by Dr. Mehta in the September 24, 2012 opinion and the November 7, 2012 Order on petition for reconsideration.  The ALJ is additionally directed to determine if the principle of res judicata is applicable to this case.  After considering and weighing ALJ Jones’ prior decisions and the evidence submitted pursuant to the medical dispute, the ALJ must make a determination regarding the work-relatedness of the arthroscopy and mini open rotator cuff repair recommended by Dr. Mehta. 

          As noted above, the ALJ’s decision must be based upon the appropriate standard, and in accordance with the evidence and the facts of the case.  We make no findings, as we are not permitted to do so.  Likewise, we do not direct the ALJ to arrive at any particular result.  However, any determination must be based upon accurate facts and the appropriate history.  On remand, the ALJ must make a determination based upon the complete and correct evidence, and the history of the claim.

          We additionally find Rohland submitted a timely and valid petition for reconsideration pursuant to KRS 342.281 and 803 KAR 25.010 §20(1), and therefore his appeal was timely filed.

          Accordingly, the December 19, 2016 Opinion and Order and the February 15, 2017 Order on petition for reconsideration by Hon. Jonathan R. Weatherby, Administrative Law Judge, are hereby VACATED and this claim is REMANDED for an additional determination in accordance with the direction set forth above.  

          ALL CONCUR.

 


 

 

COUNSEL FOR PETITIONER:

 

HON STEPHANIE N WOLFINBARGER

640 SOUTH FOURTH ST, STE 400

LOUISVILLE, KY 40202

 

COUNSEL FOR RESPONDENT:

 

HON DAVID L MURPHY

PO BOX 7158

LOUISVILLE, KY 40257

 

RESPONDENT:

 

DR SANJIV MEHTA

4001 KRESGE WAY, STE 100

LOUISVILLE, KY 40207

 

ADMINISTRATIVE LAW JUDGE:

 

HON JONATHAN R WEATHERBY

657 CHAMBERLIN AVE

FRANKFORT, KY 40601