January 15, 2016 201285818

Commonwealth of Kentucky 

Workers’ Compensation Board




OPINION ENTERED:  October 13, 2017



CLAIM NO. 199960288



J-TOWN CONTRACTORS                             PETITIONER



















                       * * * * * *



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



RECHTER, Member.  J-Town Contractors (“J-Town”) appeals from the April 28, 2017 Opinion and Order and the June 1, 2017 Order rendered by Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”).  In a reopening for a medical dispute, J-Town challenged whether Emery Martin (“Martin”) is entitled to treatment for a cervical condition.  The ALJ determined the recommended treatment is work-related and therefore compensable.  On appeal, J-Town argues the ALJ drew impermissible inferences regarding causation of the cervical condition.  For the reasons set forth herein, we reverse and remand.

          Martin filed his claim on March 29, 2002 alleging injuries to his right arm, right shoulder and neck[1] on August 27, 1999.  The injuries occurred when Martin fell into a hole and a steel column landed on him.  The claim was resolved by settlement agreement approved May 5, 2003.  The agreement listed the right arm, right shoulder and neck as the affected body parts, and listed occult instability right shoulder/rotator cuff as the diagnosis.  Martin retained his right to future medical benefits. 

          J-Town filed a medical dispute on July 22, 2011 to challenge renewed right shoulder treatment after an eight-year period without treatment.  That dispute was resolved in Martin’s favor by the September 28, 2012 Opinion and Order of ALJ Jeannie Owen Miller.  Therein, ALJ Miller relied upon Dr. Mark Smith’s opinion unequivocally linking Martin’s shoulder pain to his prior shoulder injury of 1999.

          Martin filed a motion to reopen on February 19, 2016 seeking temporary total disability (“TTD”) benefits related to shoulder surgery performed by Dr. Smith on January 21, 2016.  J-town agreed to voluntarily pay TTD benefits. 

          J-Town filed the present motion to reopen and Form 112 to assert a medical dispute on August 1, 2016.  It challenged causation and work-relatedness of a cervical MRI recommended by Dr. Smith. 

          Martin submitted the medical records of Dr. Smith and Erin M. Gish P-AC of Ellis & Badenhausen Orthopaedics, documenting ongoing treatment for Martin’s shoulder condition.  On March 2, 2016, PA Gish treated Martin for osteoarthritis and recurrent dislocation of the right shoulder.  The treatment note makes no reference to cervical complaints or any diagnosis related to the cervical spine.  On March 30, 2016, PA Gish noted Martin was seen for continued complaints in the right shoulder after his subacromial decompression and AC resection with intra-articular debridement performed on January 21, 2016, with subsequent cervical strain.  His chief complaint was pain around the right trapezius muscle.  PA Gish noted an active problem of “Sprain of ligaments of cervical spine, initial encounter.” 

          On July 6, 2016, Martin again reported cervical pain.  It was noted Martin may benefit from a TENS unit to help his cervical strain. An MRI of the cervical spine was recommended to determine if there is a pathologic problem such as a herniated disc “causing the symptoms about his cervical strain or if this is simply a muscular issue.”  Accordingly, Dr. Smith ordered a cervical MRI to “evaluate for HNP” and prescribed a TENS unit “for cervical strain.”  The adjuster denied these requests on July 12, 2016 stating the treatment is not for a work-related condition.  A September 7, 2016 note recorded continued tenderness in the neck area. 

          Martin introduced medical records pre-dating the present medical dispute.  Dr. Smith prepared a June 20, 2012 report stating Martin suffered recurrent dislocations of his right shoulder and thoracic outlet compressive syndrome.  Dr. Smith indicated the symptoms in the right trapezium and parascapular area, as well as the AC joint, were directly related to the prior shoulder injury in 1999.  Dr. Smith did not identify any cervical pathology or symptomatology, or diagnose a cervical condition.  

          Dr. Peter Kirsch conducted a records review on June 7, 2016.  Dr. Kirsch opined further physical therapy for the right shoulder was not medically necessary or appropriate for treatment of the 1999 injury.  He found no objective evidence that the cervical spine or the right trapezius would be involved in the 1999 injury.  Therefore, he concluded the current cervical spine and right trapezius complaints are not related to the work injury. 

          Dr. Brian Pienkos conducted an independent medical evaluation on August 5, 2016.  Dr. Pienkos indicated Martin’s chronic right shoulder pain is related to the 1999 work injury.  On examination, Martin “had no real symptoms related to the cervical spine” and had only some tenderness of the trapezius muscle on the right, likely related to right shoulder pain.  Accordingly, Dr. Pienkos found no active cervical spine disease.  Therefore, Martin had no current cervical spine condition related to the 1999 injury.  Martin would have reached maximum medical improvement around June 21, 2016.  Dr. Pienkos did not think a cervical MRI is either indicated or directly related to his original injury. 

          After reviewing the evidence, the ALJ found J-Town had not met its burden of proving the challenged medical expenses are unreasonable and unnecessary for the cure and/or relief of the effects of the work injury.  The ALJ then made the following findings relevant to this appeal:


In the specific instance, Defendant Employer has moved to reopen this claim challenging the causation/work relatedness of [a] cervical MRI recommended by Dr. Smith, physical therapy, cervical spine and right trapezius complaints, dry needling and reasonableness necessity of a home TENS unit. Also, at issue is Plaintiff's entitlement to and, if so entitled, duration of TTD following shoulder surgery performed on January 21, 2016. As for TTD, Dr. Pienkos placed Plaintiff at MMI on June 21, 2016. TTD would terminate at that point. As for the remaining issues, after careful consideration of the evidence, the records from the treating physician, Dr. Smith, are persuasive that the treatment - including dry needling, physical therapy and a home TENS unit - is effective and related to the work injury. Dr. Smith recommends the MRI and it is found compensable. Dr. Smith's recent treatment records appear to be somewhat weak in the wording of causation of ongoing cervical and trapezius treatment. However, the tone of his opinion appears to be the current treatment is all related to the work injury. While Dr. Smith may not have [provided]  the magic words in his most recent records, he provided this opinion with those magic words in the records attached to the 2012 medical dispute. In those records he found the tenderness in the right trapezius and periscapular area as well as the acromioclavicular joint were an aggravation of the right AC joint in trapezium and periscapular muscle pain. He found this to be directly related to the prior shoulder injury of 1999. Therefore the contested treatment is found reasonable, necessary, work related and compensable.


          J-Town filed a petition for reconsideration, arguing the ALJ misunderstood the scope of the reopening, which was limited to the compensability of the cervical MRI.  J-Town noted Dr. Smith made no statement in the 2011 reopening concerning the cervical spine, and there were no cervical complaints at the time.  J-Town further emphasized the cervical complaints arose in 2016 and had disappeared during treatment.  Dr. Smith had offered no opinion regarding causation and it is not clear he continued to recommend a cervical MRI after 2016. 

          The ALJ overruled the petition for reconsideration, holding as follows:

… After rereading the evidence, particularly the records of Dr. Smith on May 25, 2016, the ALJ’s opinion is unchanged. In that record, Dr. Smith discusses ongoing treatment and states there is no new injury to the shoulder. The discussion on the right shoulder and neck are so intertwined, the idea that Dr. Smith believes he is treating a new unrelated condition is not plausible. As noted by Defendant Employer, the neck pain may no longer be an issue but in his May 25, 2016 record, it does not appear that Dr. Smith finds a separate causation for the cervical complaints. Thus, having reviewed the record and being otherwise sufficiently advised;

IT IS HEREBY ORDERED, Defendant’s Petition for Reconsideration is OVERRULED.


          On appeal, J-Town argues the ALJ erred in inferring causation from Dr. Smith’s opinions introduced in the 2011 reopening.  Dr. Smith had stated Martin’s symptoms in the right trapezius, periscapular area, and AC joint were related to the 1999 injury.  However, the current dispute concerns the cervical spine.  Dr. Smith made no reference to the cervical spine in the 2012 reopening.  Thus, J-Town argues Dr. Smith’s 2012 opinion provides no basis for the ALJ’s inference, and the ALJ’s finding is purely speculative.  J-Town asserts the only evidence addressing causation of the 2016 cervical condition are the 2016 opinions of Drs. Kirsch and Pienkos, who stated the cervical condition and recommended MRI are not work-related.

          At the outset, we emphasize that J-Town appeals only the compensability of the cervical MRI.  Its medical fee dispute lists only the cervical MRI as a contested treatment.  However, the benefit review conference order identifies contested treatment as “cervical MRI, physical therapy, cervical spine and right trapezius complaints, dry needling and a home TENS unit, TTD following shoulder surgery performed January 21, 2016 (duration).” The ALJ determined all of these treatments are compensable, and awarded TTD benefits from January 21, 2016 through June 21, 2016.  In its petition for reconsideration, J-Town emphasized that it was contesting only the cervical MRI.  It reiterated that position in its brief to this Board.

          J-Town bore the burden of proof and the risk of non-persuasion with respect to the reasonableness and necessity of the contested medical treatment.  National Pizza Co. v. Curry, 802 S.W.2d 949 (Ky. App. 1991).  Because J-Town was unsuccessful in its burden, 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 that is 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 they must be reversed as a matter of law.  Ira A. Watson Department Store v. Hamilton, 34 S.W.3d 48 (Ky. 2000).

          Causation is a factual issue to be determined within the sound discretion of the ALJ as fact-finder.  Union Underwear Co. v. Scearce, 896 S.W.2d 7 (Ky. 1995).  When the question of causation involves a medical relationship not apparent to a lay person, authority holds that the issue is properly within the province of medical experts and an ALJ is not justified in disregarding the medical evidence.  Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc., 618 S.W.2d 184, 186-187 (Ky. App. 1981).  Medical causation must be proven by medical opinion within “reasonable medical probability.”  Lexington Cartage Company v. Williams, 407 S.W.2d 395 (Ky. 1966).  The mere possibility of work-related causation is insufficient.  Pierce v. Kentucky Galvanizing Co., Inc., 606 S.W.2d 165 (Ky. App. 1980). 

          The diagnosis of a cervical strain first appears in the records of Ellis and Badenhausen on March 30, 2016.  The record refers to active problems of osteoarthritis and recurrent dislocation of the right shoulder and “Sprain of ligaments of cervical spine, initial encounter”.  The 2016 records contain no history of when the cervical strain occurred.  Significantly, Dr. Smith had previously treated Martin from 2002 to 2003 and again beginning in 2011 for the shoulder condition, but made no reference to a cervical diagnosis, cervical complaints or cervical treatment prior to 2016. 

          Our review of the record reveals there were no cervical complaints in the 2011 medical dispute.  Records from Dr. William C. Nash, filed by Martin in the original claim, included a cervical MRI taken February 29, 2000.  The MRI was interpreted by Dr. Michael Oliff as normal, apparently ruling out any cervical spine injury.  In a June 20, 2012 medical report, Dr. Smith directly attributed Martin’s complaints to the shoulder injury, not to a cervical condition.  Any opinion of Dr. Smith regarding Martin’s complaints in 2011 and 2012 were limited to the shoulder/trapezius, and are not a basis to support a determination that Dr. Smith believed cervical complaints/treatment in 2016 are related to the 1999 injury. 

          Nothing in the 2016 records address how the cervical strain first diagnosed in March 2016 is related to the 1999 injury.  Any connection between the remote injury and a new diagnosis approximately seventeen years later is one that must be established by competent medical opinion.  No physician has stated the trapezius complaints have their origin in the cervical spine.  To the contrary, Dr. Pienkos specifically related the pain in the trapezius is most likely related to the shoulder condition and Martin has no real symptoms related to a cervical condition.   

          Here, the only medical experts who directly addressed the issue of work-relatedness of the cervical condition or cervical treatment were Drs. Kirsch and Pienkos. Both concluded the cervical spine condition is not related to the work injury.  

          Though the ALJ is permitted to draw inferences from the evidence, those inferences must be both reasonable and based on substantial evidence of record.  See Jackson v. General Refractories Co., 581 S.W.2d 10 (Ky. 1979).  The record contains no substantial evidence to support an inference that Dr. Smith believed Martin had cervical complaints in 2016 related to the 1999 injury.  The inferences drawn by the ALJ from the report of Dr. Smith to find that Martin’s cervical treatment was related to his work amounts to mere speculation or mere possibility, and are not based upon substantial evidence.

          For these reasons, we conclude Dr. Smith’s 2011 report does not constitute substantial evidence supporting the conclusion Martin’s current cervical complaints are related to his work injury.  There being no other medical opinions supporting the work-relatedness of Martin’s cervical complaints, we believe the proof compels a finding in J-Town’s favor regarding the compensability of the cervical MRI.  J-Town has not appealed the compensability of the remainder of the treatments, and acknowledges these treatments relate to Martin’s work-related shoulder injury.   

          Accordingly, that portion of the April 28, 2017 Opinion and Order and the June 1, 2017 Order rendered by Hon. Jane Rice Williams, Administrative Law Judge, finding a cervical MRI is compensable is hereby REVERSED.  The remainder of the ALJ’s Opinion shall remain in effect.  This claim is REMANDED for entry of an amended decision in accordance with this Opinion.

          ALL CONCUR.













PO BOX 1155










[1] It is readily apparent from the treatment notes of Dr. Nash, and Martin’s deposition testimony, that his reference to a problem in the neck is to a knot and pain in his trapezius muscle.