*/
Workers’
Compensation Board
OPINION ENTERED: June 22, 2018
CLAIM NOS. 199012160, 199004415,
198903216 & 198717285
MIRANDA S. MORRIS PETITIONER
VS.
APPEAL
FROM HON. DOUGLAS W. GOTT,
CHIEF ADMINISTRATIVE LAW JUDGE
NAEGLE OUTDOOR ADVERTISING,
DR. CLAUDETTE GIBSON,
DR. PASQUALE MALPESO,
DR. JOSEPH GOODMAN,
And HON DOUGLAS W. GOTT,
CHIEF ADMINISTRATIVE LAW JUDGE
RESPONDENTS
OPINION
AFFIRMING
*
* * * * *
BEFORE: ALVEY, Chairman, STIVERS and RECHTER, Members.
RECHTER, Member. Miranda S. Morris appeals from the August 29, 2017 Opinion and Order and the October 13, 2017 Order on Reconsideration rendered by Hon. Douglas W. Gott, Chief Administrative Law Judge (“CALJ”). The CALJ resolved a medical dispute regarding proposed dental treatment in favor of Naegle Outdoor Advertising, Inc. (“Naegle”). On appeal, Morris argues the CALJ erred by giving res judicata effect to an order in a prior medical fee dispute, in prospectively relieving the employer from liability for further restorative dental procedures, in permitting only partial recovery in the alternative findings, and in failing to address whether dental services should be considered “emergency” medical treatment. We conclude the work-relatedness of the proposed dental treatment was decided in a prior medical dispute, and precludes further adjudication of this issue. On this basis, we affirm.
BACKGROUND
The primary issue in this appeal is whether the
compensability of a full mouth restoration, which entails the recapping and
crowning of twenty-seven teeth, was decided in a prior medical fee dispute, so
as to bar its current relitigation. This
claim is a consolidation of four separate injury claims, and the proof
submitted in this long-litigated file is extensive by any measure. In the current medical fee dispute, proof
from over twelve dentists was submitted, in addition to five lay witnesses. Much of the medical and lay testimony is
irrelevant to the issue on appeal. For
this reason, we recite only the procedural history and medical evidence most
necessary to understand the narrow issue on review.
Settlement of four injury
claims
Morris sustained head, neck, back, temporomandibular joint
(“TMJ”), and psychological injuries as a result of four separate motor vehicle
accidents (“MVA”) while employed by Naegle.
The first MVA occurred on April 23, 1987. (Claim No. 1987-17285). An “Agreement as to Compensation” approved on
February 13, 1989, reflects Morris sustained a back strain and received a lump
sum award based on a 12% whole person impairment. She retained her right to future medical benefits.
Morris injured her neck and back on December 12, 1988, when
a truck making an improper right turn from a left lane struck her vehicle. (Claim No. 1989-03216). On October 23, 1989, an Agreement as to
Compensation was approved and Morris received a lump sum award based on a 12%
whole person impairment.
Morris sustained a third injury on December 29, 1989. (Claim No. 1990-04415). Her Form 101 alleged she was injured in an
MVA causing injuries to her “head, neck, back, and tempro mandibular [sic]
joint”. Morris sustained a fourth injury
on March 6, 1990. (Claim No.
1990-12160). Her Form 101 alleged
injuries to her head, neck, back, and TMJ.
Morris also asserted a psychological injury.
Hon. Thomas A. Dockter, Administrative Law Judge (“ALJ
Dockter”) entered an order consolidating the third and fourth claims. Later, ALJ Dockter entered an order reopening
the first and second injury claims, and all four claims were consolidated. On August 3, 1995, ALJ Dockter approved a
settlement agreement concluding all four claims. The agreement indicated Morris had cervical
spine, lumbar spine, TMJ, and psychiatric injuries. The parties indicated, “One hundred percent
(100%) permanent total occupational disability is in dispute.” The settlement agreement indicated it was a
full and final settlement of the income benefits payable to Morris for all four
claims. Morris did not waive her right
to future medical benefits, and the parties retained the right to reopen to
contest or compel payment of medical benefits.
Treatment after the
settlement agreement
Prior to entering into the settlement
agreement, Dr. Michael Clear performed three surgical procedures to treat
Morris’ TMJ condition. After the settlement was reached, Morris treated
with Dr. Louis Mercuri from 1997 through October 2005 for TMJ dysfunction.
He also performed multiple surgeries. Dr. George Kushner performed
TMJ surgery in 1997 and 2005, including a replacement of the TMJ joint.
During the course of these treatments and surgical
procedures for the TMJ condition, Morris also began to receive dental
treatment. In 2003, Dr. Kushner referred
Morris to Dr. David Fox. The parties do
not contest that Dr. Fox performed a full dental reconstruction in 2003;
however, there is no documentation of this procedure in the record, nor is
there evidence of who paid for this procedure.
Six years later, Dr. Fox again consulted with Dr. Kushner about full
mouth restoration on August 6, 2009. In 2009,
Dr. Kushner advised against extensive restoration of crowns and bridgework due
to TMJ issues. Morris then transferred
her care to Dr. Dennis Jenkins in June, 2010, who recommended restoration of
crowns and bridgework for twenty-two teeth.
2011 Medical Fee Disputes
Beginning on December 7, 2010, Naegle filed numerous
medical disputes. One dispute challenged
Dr. Jenkins’ proposed treatment for “routine dental care and cosmetic
procedures, primarily porcelain/ceramic crowns to 20 of the Plaintiff’s teeth
and related bridgework for those crowns.”
Naegle described the nature of the dispute as follows:
The
Defendant-Employer is responsible only for medical bills related to the
Plaintiff’s cervical spine, lumbar spine, TMJ and psychiatric treatment related
to her automobile accident injuries set forth in “Addendum A.” The treatment that the Plaintiff seeks for
her dental care relates to routine dental follow-up and cosmetic
procedures. Specifically, the Plaintiff
seeks to have 20 of her teeth recapped with porcelain/ceramic crowns and
attaching bridgework. This care is not
related to any of the work injuries set forth in “Addendum A”.
Hon. Howard E. Frasier, Jr., Administrative Law Judge (“ALJ
Frasier”) rendered an Opinion and Order on July 15, 2011 determining Dr.
Jenkins’ proposed treatment is not work-related:
This
issue is much more difficult because it involves evidence from dentists who are
not normally called upon to express opinions involving workers compensation
claims. Unlike the TMJ condition that
was specifically mentioned in the settlement agreement and for which multiple
surgeries have been performed, no mention was made of any strict “dental”
injury, particularly as it may relate to the care of individual teeth.
However,
the Plaintiff still bears the burden of proof on work-relatedness, and even in
the absence of an express opinion from a dental professional that the
challenged treatment is not work-related, the Plaintiff must still provide
evidence that tips the scales on this issue.
During his deposition, Dr. Kushner declined to express an opinion about
whether the current proposed treatment for her teeth was work-related. He admitted that the Plaintiff was a
“difficult” case and that during the time of his treatment, she has been
treated by different dentists and orthodontists.
Clearly,
Ms. Morris has not been pleased with some of the aesthetic and cosmetic aspects
of various dental work performed on the Plaintiff. According to Dr. Kushner, the Plaintiff’s
bite with the use of various orthodontic work has been stabilized over a period
of years and he “thought she had a beautiful result.” (Dr. Kushner Depo., pp. 16-17). He actually had a lengthy discussion with Ms.
Morris shortly before he wrote a letter to Dr. Fox on September 3, 2009, stating
that “I think it is not clinically prudent to proceed with extensive restoration
and rehabilitation with her limited opening and chronic TMJ complaints.” (Id., Defendant’s Exhibit 3).
Because
the burden of whether the $42,000.00 in dental work is work-related is borne by
the Plaintiff, she must tip the scales in her favor on this issue. The undersigned finds that the Plaintiff has
not met her burden of proof on the work-relatedness of the challenged dental
work.
While
Dr. Jenkins has expressed an opinion on work-relatedness, he has only recently
come on the scene, and the undersigned finds the testimony of Dr. Kushner to be
more credible that the TMJ condition, at least from a dental aspect, had
stabilized in 2009. Similarly, the
recommendation by Dr. Fox for teeth cleaning every three months has not been
shown to tip the scales on causation as it relates to the distant work
injuries. Regular teeth cleaning is a
common hygienic practice for all persons to follow, and the Plaintiff here has
simply not shown how this would in 2011 have a causal connection to the
original work injuries.
Accordingly, ALJ Frasier
concluded Dr. Jenkins’ proposed dental restoration non-compensable.
ALJ Frasier issued an August 2, 2011 Order on Morris’
Petition for Reconsideration. He
emphasized the dental records reference numerous cosmetic concerns and
concluded Dr. Jenkins’ most recent opinion was not persuasive on the issue of
causation. He restated his reliance on
Dr. Kushner’s opinion the proposed reconstruction was not related to Morris’
TMJ condition.
Morris appealed and specifically challenged ALJ Frasier’s
conclusion the proposed treatment is not work-related. This Board issued an Opinion on December 22,
2011 affirming the determination that the dental work and teeth cleaning are
neither work-related, nor reasonable and necessary. After detailing at length the evidence
supporting this conclusion, the Board observed:
In
reading the ALJ’s opinion and order as well as his order ruling on the petition
for reconsideration, we conclude the ALJ determined the cervical fusion
surgery, dental work, treatment by Dr. Castro, and treatment at Norton
Brownsboro were not related to and thus, not caused by the previous four work
injuries. In addition, the ALJ
determined the proposed cervical surgery and dental treatment were not
reasonable and necessary treatment of Morris’ work injuries.
Current medical fee
dispute
Morris continued to seek full mouth restoration, visiting
doctors in Louisville, New York, Jacksonville and Beverly Hills. Eventually, she treated with Dr. Pasquale
Malpeso in New York City. Naegle filed a
medical dispute on August 26, 2013 specifically asserting this was the same
treatment denied by ALJ Frasier. After the motion to reopen was filed, but prior
to an order reopening the matter, the parties reached a compromise agreement,
resulting in an interlocutory order dated October 1, 2014. The Order directed Naegle to pay for
treatment with Dr. Sarah Johnson, a Louisville prosthodontist with whom Morris
had consulted after Dr. Malpeso. Dr.
Johnson’s treatment plan included removal of Morris’ crowns and rebuilding the
cores with possible implants and root canals.
The interlocutory order did not address the merits of the
reopening.
Morris commenced treatment with Dr. Johnson but eventually
became unhappy with its progress and refused further procedures. The claim was then formally reopened by order
dated March 4, 2015. By that time,
Morris had returned to Dr. Malpeso in March 2015, seeking the same treatment
she abandoned in 2013. Naegle challenged
Dr. Malpeso’s treatment bills, arguing the determination that the care is not
causally related to the original injuries is res judicata. After again
abandoning treatment with Dr. Malpeso, Morris sought treatment with her cousin,
Dr. Claudette Gibson. Naegle challenged
the care with Dr. Gibson, incorporating its previous arguments.
Naegle and Dr. Johnson reached a settlement agreement that
was approved by order dated March 1, 2016, and Dr. Johnson was dismissed as a
party. The order contained no findings
regarding work-relatedness or reasonableness and necessity. Morris next sought treatment with Dr. Joseph
M. Goodman, a Beverly Hills dentist who recommended replacing twenty-eight
crowns. Naegle challenged the treatment
on numerous bases, including work-relatedness.
CALJ’s decision
The
CALJ reviewed the extensive record and provided a thorough and comprehensive
synopsis of the proof. He first analyzed
ALJ Frasier’s July 15, 2011 Opinion and Order, and concluded he determined the
proposed full mouth restoration is not related to Morris’ TMJ condition, or
otherwise work-related. The CALJ
considered the res judicata effect of
this holding:
The
parties have gone to a tremendous amount of effort to get to this point, but
the most glaring conclusion is that the non-work relatedness of a full-mouth
restoration treatment plan has already been decided. The prior medical dispute involved a
$42,575.00 treatment plan from Dr. Jenkins to restore 27 of Morris’ teeth, and
that is the same treatment at issue now.
(Drs. Nation and Goodman said 28 teeth.)
The
prior ALJ found the proposed treatment unrelated to the “TMJ” injury identified
in the settlement agreement, and also not reasonable and necessary. A finding of reasonableness and necessity of
treatment is a snapshot in time, and can later be decided another way given a
change in circumstances. But a finding
on relatedness is different. It is res
judicata, and not capable of being set aside.
(The law to this effect was just discussed by the Workers’ Compensation
Board in Miller v. Our Lady of the Way Hospital, 1998-59307.) This should be the end of the analysis. However, the CALJ will proceed with
additional, alternative findings should an appellate body disagree. Given the time and work to get here, no one
wants to delay a party’s ability to seek comprehensive review of findings on
appeal.
The CALJ then entered alternative findings, including a
determination that Morris’ unreasonable interference with efforts to complete
treatment relieved Naegle from some liability because her actions were against
medical advice, and were intervening acts that made continued care unrelated to
the work injury. The CALJ determined Dr.
Malpeso’s work would be compensable to the point Morris rejected a permanent
bonding attempt on May 28, 2015.
Although restoration was not reasonable and necessary in 2011, the CALJ
held a restoration became reasonable and necessary by 2013. We note the CALJ made no finding regarding
the work-relatedness of the proposed dental treatment.
Morris filed a petition for reconsideration, arguing ALJ
Frasier did not address the issue of causation relative to the prosthodontic
issues, and that the res judicata
doctrine had not been sufficiently preserved as an issue. Morris also requested additional findings
regarding reasonableness and necessity. The CALJ provided the following additional
findings in his October 13, 2017 order denying the petition for
reconsideration:
Plaintiff attempts to characterize ALJ
Frasier’s Opinion in 2011 as ruling on the reasonableness and necessity of the
same dental restoration work that is at issue now, but the prior ALJ plainly
found that the proposed dental work was not connected with the work related TMJ
condition. Also, Plaintiff is correct that the parties did not emphasize the
res judicata issue in their argument of this case, but the issue was clearly
preserved by the Defendant in its Form 112’s that were incorporated into the
orders summarizing the issues to be decided in this medical dispute.
The remainder of the petition is a
re-argument of the merits, contrary to KRS 342.281, and the CALJ's lengthy
Opinion provides more than sufficient explanation for his findings to allow
meaningful appellate review. Shields v. Pittsburgh and Midway Coal Mining Co.,
634 S.W.2d 440 (Ky. App. 1982).
To address one additional point related to
the alternative findings made by the CALJ, Plaintiff requested additional
findings with respect to the reasonableness and necessity of Dr. Goodman’s
treatment plan. Dr. Goodman contemplates accomplishing the same task undertaken
by Dr. Johnson, Dr. Malpeso, and Dr. Gibson; to that end, and viewed in
isolation, the treatment must be deemed reasonable and necessary. However, as painstakingly
explained in the Opinion, Morris’ actions in preventing past providers from
completing their work relieve the Defendant from liability for further
restorative procedures.
ANALYSIS
On appeal, Morris first argues the CALJ erred in holding
the doctrine of res judicata applies
to the question of causation/work-relatedness of the dental care. She contends the current proceedings involve
substantially different issues compared to the earlier dispute because a
different procedure is being recommended and the medical necessity of this
procedure has changed. Morris further
argues the res judicata issue was not
properly before the CALJ because neither party argued the issue, nor was it
identified for adjudication. She next
argues the CALJ erred in prospectively relieving Naegle from liability for
future restorative procedures. Morris
contends the CALJ committed reversible error in the alternative findings by
failing to direct payment to Dr. Malpeso pursuant to the appropriate fee schedule. Finally, Morris argues the CALJ erred in the
alternative findings by failing to address whether Dr. Gibson’s dental services
should be considered emergency dental treatment.
Because it is
determinative of the appeal, we first address the question of whether ALJ
Frasier’s opinion has res judicata
effect on the current medical fee dispute.
As a preliminary matter, Morris asserts neither party identified res judicata as an issue, and it
therefore was not proper for the CALJ to determinate the claim on this
basis. First, we disagree a party is
required to identify “res judicata”
at the benefit review conference as an issue for further adjudication. Res
judicata refers to a doctrine which may divest an adjudicator of authority
to determine a claim or a portion thereof; it is not itself an issue for
adjudication as contemplated by 803 KAR 25:010 §13(11). Regardless, in this claim, Naegle repeatedly
raised its res judicata concerns in
its medical fee disputes and Form 112s.
There is no merit to Morris’ contention she was unaware the CALJ would
consider ALJ Frasier’s prior opinion and its res judicata effect.
We
now turn to the substance of Morris’ argument.
The doctrine of res
judicata bars the re-litigation of a cause of action previously adjudicated
between the same parties. Parson v.
Union Underwear Company, 758 S.W.2d 43 (Ky. App. 1988); Beale v.
Faultless Hardware, 837 S.W.2d 893 (Ky. 1992). A final judgment, identity of subject matter,
and mutuality of parties is required. BTC
Leasing Inc. v. Martin, 685 S.W.2d 191 (Ky. App. 1984). “The doctrine of res judicata applies to the rulings of a Workmen’s Compensation
Board the same as it does to the decisions of a court.” Hysteam Coal Corp. v. Ingram, 141
S.W.2d 570, 572 (Ky. App. 1940).
Application
of the doctrine of res judicata to
medical fee disputes is limited. On
questions of reasonableness and necessity, res
judicata has limited effect because medical benefits
necessarily relate to an employee’s evolving physical condition. Thus, while there may be a mutuality of
parties, the subject matter is not identical simply because it relates to the
same injury or body part. Treatment that
is reasonable and necessary at one point in time may not be reasonable or
necessary at another time. See e.g. Hollan v. IBM, 2007 WL
858808 (Ky. 2007).
The
question of causation, however, does not evolve over time. Kentucky courts have applied the principle of
res judicata to subsequent attempts
to relitigate causation. “[O]nce an
ALJ-adjudicated award and order becomes final, the ALJ’s determinations with
respect to e.g., causation, notice apportionment, etc. cannot be readdressed under
KRS 342.125” due to the principle of res
judicata. Garret Mining Co. v.
Nye, 122 S.W.3d 513 (Ky. 2003). Once
an ALJ determines that work-related causation has not been established,
subsequent tribunals are bound by this determination. Godbey v. University Hospital of Albert B.
Chandler Medical Center, Inc., 975 S.W.2d 104 (Ky. App. 1998) (applying res judicata effect to finding claimant
failed to establish work-relatedness in subsequent civil action).
In
a medical fee dispute, the issue of work-relatedness is the functional
equivalent of a determination as to causation in the underlying claim. The work-relatedness of the proposed dental
restoration was fully litigated before ALJ Frasier. Cf.
Beale v. Faultless Hardware, 837 S.W.2d 893 (Ky. 1992) (drawing
distinction between res judicata
effect of settlement agreement versus issues fully litigated). ALJ Frasier determined dental restoration is
not related to any of Morris’ work injuries, and the doctrine of res judicata prohibits subsequent
attempts to relitigate that precise issue.
For
these reasons, we conclude the CALJ properly determined res judicata would prevent relitigation as to the work-relatedness
of the proposed dental restoration.
Having determined that the CALJ applied the correct principles of law,
the sole issue for our review, then, is whether the CALJ’s findings of fact are
supported
by substantial evidence. Special
Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). Only one finding of fact was necessary to
support the CALJ’s legal conclusion: whether the current contested treatment is
the same treatment declared non-compensable by ALJ Frasier.
In
the medical fee dispute adjudicated by ALJ Frasier, Dr. Jenkins proposed to
recap and crown twenty-seven of Morris’ teeth.
The current treatment at issue is a proposed full mouth restoration,
involving the recapping and crowning of twenty-eight teeth. Dr.
Richard Pape specifically testified no causal relationship could be established
between the remote injuries and the current treatment within a reasonable
degree of medical probability. The CALJ concluded the
proposed restoration is identical to the proposed treatment considered by ALJ
Frasier. This factual finding is
reasonable and supported by substantial evidence. Wolf Creek Collieries v. Crum, 673
S.W.2d 735 (Ky. App. 1984).
In sum, the settlement
agreement did not reference or acknowledge a dental injury or the
compensability of dental expenses. As
such, the settlement agreements did not establish that the work injuries
produced a need for dental treatment or entitlement to medical expenses related
to any dental condition. Morris had the
burden to prove dental care is causally related to the work injuries. ALJ
Frasier’s adverse decision was the first determination of whether any dental
expense is related to the work injury.
Because ALJ Frasier’s finding regarding causation/work-relatedness of
the dental care is res judicata, the
CALJ’s alternative findings and any arguments concerning those findings are
rendered moot. Therefore, having
determined ALJ Frasier’s rulings are entitled to res judicata effect, it is unnecessary to address the remainder of
Morris’ arguments on appeal concerning the CALJ’s alternate findings.
Accordingly, the August 29, 2017 Opinion, Award and Order and the October 13, 2017 Order rendered by Hon. Douglas W. Gott, Chief Administrative Law Judge, are hereby AFFIRMED.
ALL CONCUR.
COUNSEL
FOR PETITIONER:
HON CHED JENNINGS
401 W MAIN ST #1910
LOUISVILLE, KY 40202
COUNSEL
FOR RESPONDENT, NAEGLE OUTDOOR ADVERTISING:
HON C PATRICK FULTON
1315 HERR LANE, SUITE 210
LOUISVILLE, KY 40222
RESPONDENTS:
DR. PASQUALE J MALPESO, DMD
563 PARK AVENUE
NEW YORK, NY 40065
CLAUDETTE GIBSON, DDS, MS
7512 S COUNTY LINE RD, SUITE 2
BURR RIDGE, IL 60527
DR. JOSEPH M GOODMAN, DDS, DMD
BEVERLY HILLS PLAZA OF COSMETIC
DENTISTRY
241 ½ SOUTH BEVERLY DRIVE
2ND FLOOR
BEVERLY HILLS, CA 90212
CHIEF ADMINISTRATIVE
LAW JUDGE:
HON DOUGLAS W. GOTT
ADMINISTRATIVE LAW JUDGE
PREVENTION PARK
657 CHAMBERLIN AVENUE
FRANKFORT, KY 40601
