RANGER CONTRACTING VS. COMPENSATION MORLEY (BROCK), ET AL.
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RENDERED: AUGUST 28, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001037-WC
RANGER CONTRACTING
v.
APPELLANT
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS’ COMPENSATION BOARD
ACTION NO. WC-01-65710
BROCK MORLEY; DR. ANBU NADAR;
HON. GRANT S. ROARK, ADMINISTRATIVE
LAW JUDGE; AND WORKERS’
COMPENSATION BOARD
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, KELLER AND NICKELL, JUDGES.
NICKELL, JUDGE: Ranger Contracting (Ranger) appeals from a final order of
the Workers’ Compensation Board (Board) affirming an Administrative Law
Judge’s (ALJ) award of medical benefits to Brock Morley (Morley) and his
treating physician, Dr. Anbu Nadar (Dr. Nadar), following the reopening of a claim
resulting from a disputed medical fee. After reviewing the record, applicable
statutes and case law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2001, Morley fell nearly forty feet from a platform
while working for Ranger in a coal processing plant. He was treated for extensive
injuries to his left side, specifically to his hip, ribs, and scapula. As a result of
injuries to his hip, Morley underwent surgery and several months of physical
therapy. A settlement reached by Morley and Ranger was approved by the Chief
ALJ on August 3, 2004. Based upon our reading of the briefs, the settlement
agreement, which is not included in the record for our review, did not specifically
mention any injuries to Morley’s neck or back, although Ranger paid for presettlement office visits during which Morley complained to Dr. Nadar of lower
back pain. However, in 2006, Ranger’s workers’ compensation carrier declined to
pay for Feldene and Lortab prescribed by Dr. Nadar to relieve Morley’s back pain.
Morley paid for the medication himself.
On October 14, 2005, Morley moved to reopen the settled claim to
seek compensation for medical treatment of his neck and low back which he now
attributed to the 2001 work-related fall based upon Dr. Nadar’s medical opinion.
Ranger opposed reopening the claim on three grounds: claim preclusion as
codified in KRS1 342.270; Morley’s failure to notify Ranger of the desired
1
Kentucky Revised Statutes.
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compensation within two years of the 2001 accident as required by KRS
342.185(1); and lack of causation.
The ALJ convened a hearing on September 27, 2006, at which
medical reports from several treating and evaluating physicians were placed into
the record and Morley testified. Morley confirmed Dr. Nadar had treated him for
back pain prior to approval of the settlement on August 3, 2004, and stated he
continues experiencing back pain which manifests itself primarily on the left side
of his body. He also testified Ranger’s workers’ compensation carrier had paid for
an office visit to Dr. Nadar in 2005 but had refused to pay for Feldene and Lortab
on April 20, 2006, so Morley paid for the medication.
Following briefing by both parties, the ALJ issued a six-page opinion
on November 27, 2006, finding in favor of Morley and Dr. Nadar. The ALJ briefly
summarized the medical opinions of various doctors who had seen Morley since
2001. In particular, the ALJ noted Dr. Peter Kirsch “found no evidence relating
the low back pain to the injury.” Dr. Bart Olash indicated Morley “did not report
neck pain until March 2005” and “concluded that the use of Skelaxin, Feldene, and
Lortab were unrelated to the work injury.” According to an affidavit submitted by
Morley, Dr. Nadar had told him after the settlement that his “low back pain was
directly related to the work injury.” Independent medical evaluator Dr. Gregory
Snider understood from Morley that his neck pain began in December 2004 and
concluded “further formal medical treatment with regard to the work injury was
not reasonable or necessary.” Despite differing medical opinions, the ALJ found
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Dr. Nadar’s opinion and testimony to be more credible, as was his prerogative
under Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000). Via deposition, Dr.
Nadar established Morley had complained to him of low back pain for the first
time in October 2002. As the ALJ stated, “Dr. Nadar attributed [the back pain] to
the work injury because [Morley] had experienced pain on the left side of his lower
back when he was injured. He concluded that [Morley] began to notice the lower
back pain when his hip problems began to subside.”
The ALJ concluded Slone v. Jason Coal Co., 902 S.W.2d 820 (Ky.
1995), requiring all known claims to be raised prior to settlement or be waived,
was inapplicable because it dealt with a request for income benefits for a known,
but unasserted, condition, whereas Morley was seeking to reopen his original claim
to be compensated for medical expenses flowing from his workplace injury. The
ALJ stated, the original award of medical expenses “includes and anticipates all
effects of an injury so long as the treatment rendered is for a condition causally
related to the originally claimed work injury.” For the same reason, the ALJ
rejected Ranger’s argument that reopening was barred by the two-year statute of
limitations expressed in KRS 342.185(1). Based upon Dr. Nadar’s opinion that
Morley’s complaints of back pain were a consequence of injuries sustained in the
work-related fall, the ALJ found sufficient proof of causation. Finally, the ALJ
found Dr. Nadar’s conservative treatment plan, (exercise, moist heat and some
medication), was “reasonable and necessary and compensable.” Ranger’s petition
for reconsideration was denied by the ALJ.
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Ranger appealed to the Board, but asked that the appeal be held in
abeyance until the Supreme Court of Kentucky had rendered its decision in
Ramsey v. Sayre Christian Village Nursing Home, 239 S.W.3d 56 (Ky. 2007).
Because there was evidence that both Ramsey and Morley knew of other claims,
but did not assert them before settlement, the Board granted Ranger’s request and
abated the appeal.
Ramsey and the case sub judice were handled by the same ALJ.
Ramsey injured her back while lifting a patient in a nursing home. In 1998, she
applied for benefits for her back injury. That same year, she was prescribed
medication for depression and anxiety, but never listed psychological issues in her
workers’ compensation claim and did not move to amend her claim. However, she
listed both her back injury and depression as the bases for a 1999 social security
disability award. Because Ramsey failed to include depression as a basis for her
workers’ compensation claim, even though it was clearly known to her, the ALJ,
citing Slone, rejected her request to reopen the original claim on the same grounds
alleged by Ranger in this appeal. Ultimately, the Supreme Court affirmed this
Court’s opinion in Ramsey and reiterated,
KRS 342.270(1) codifies the decision in Slone v. Jason
Coal Co., supra. It requires a claim to be filed within
two years of the date of accident and requires all known
causes of action to be joined to the claim or waived. It is
obvious that [Ramsey] knew of her depression during the
initial proceeding. Because she failed to assert that she
was entitled to medical benefits for the condition until
more than two years after the award, the ALJ did not err
in dismissing that portion of her claim at reopening.
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Ramsey, 239 S.W.3d at 59.
After removing Ranger’s appeal from abeyance, the Board issued a
twenty-nine page opinion affirming the ALJ on May 1, 2008. The opinion devoted
nearly nineteen pages to a recitation of the facts and the medical evidence. The
Board found Ramsey to be “substantially different” from the case at bar because
both Ramsey’s testimony and the medical evidence confirmed she was prescribed
medication for depression soon after her injury. In analyzing Ramsey, the Board
concluded that because Ramsey never mentioned depression in her workers’
compensation claim and did not move to amend her application for benefits, the
ALJ’s award was “based solely upon the physical injury. . .” and “this was not a
case where it could be reasonably inferred the ALJ intended for the award of
medical benefits to include the treatment for depression.” In distinguishing
Morley’s claim, the Board noted his back pain did not surface until nearly a year
after his accident, and then resurfaced shortly after the settlement of his claim was
approved. The Board found it highly relevant that Morley’s back pain always
accompanied hip pain which was clearly a result of his 2001 fall. According to the
Board’s opinion,
Morley could not assert a claim for an injury to his back
because the test results and other medical records
reflected Morley sustained no apparent injury to his
lumbar spine. Further, it appears Morley was never told
or aware he had a low back injury as a result of this fall
on December 8, 2001. Thus, the ALJ concluded there
was no claim for Morley to assert either pre-settlement or
post-settlement and Morley’s low back problems were
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merely one of the effects of the December 8, 2001 work
injury.
In short, the Board found the ALJ reasonably concluded from all the evidence that
Morley did not injure his low back during the fall, but rather, his back pain was “a
symptom or natural consequence of the injury to his left hip and femur.” See
Addington Resources, Inc v. Perkins, 947 S.W.2d 421, 423 (Ky. 1997). The Board
also found Dr. Nadar established a causal relationship between Morley’s low back
pain and his work injury which was supported by Morley’s continuing complaints
of hip and leg pain. Finally, the Board concluded the ALJ had not abused his
discretion in finding the work injury caused Morley’s back pain and went on to
conclude the ALJ’s decision was supported by substantial evidence and should not
be disturbed. Special Fund v. Francis, 708 S.W.2d 641, 644 (Ky. 1986).
ANALYSIS
Ranger contends the ALJ erred in allowing the reopening of Morley’s
claim because Morley had experienced and reported pain in his back to Dr. Nadar
prior to settling the original claim in 2004 but had never alleged a work-related
back injury. In support of its contention, Ranger argues Morley never amended his
original complaint to include an allegation of any back condition resulting from the
2001 work-related incident, either within or without the two-year statutory window
provided by KRS 342.185(1). As a consequence thereof, Ranger asserts the ALJ
erred in granting the reopening. We disagree.
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We believe the ALJ correctly distinguished the holding in Slone, and
agree with the ALJ’s aforementioned legal analysis determining Slone to be
inapplicable to Morley’s reopening which seeks compensation for medical
expenses flowing from his claimed work-related injuries. We agree with the ALJ’s
conclusion that an award of medical expenses pursuant to KRS 342.020 “includes
and anticipates all effects of an injury so long as the treatment rendered is for a
condition causally related to the originally claimed work injury.” Dr. Nadar’s
medical opinion alone, that Morley’s recurring back pain was a consequence of the
injuries he sustained in the work-related fall and claimed prior to the original
award, is evidence of substance upon which the ALJ could reasonably find a causal
link. For that reason, we not only affirm the ALJ’s determination that Morley’s
current medical treatment for back pain is compensable under KRS 342.020
because there is sufficient proof of a causal connection between it and the
originally claimed work-related injuries, we also affirm the ALJ’s determination
that Morley’s motion to reopen for medical benefits associated with his ongoing
back pain was not barred by the two-year statute of limitations expressed in KRS
342.185(1).
Ranger cannot reasonably contend it had no notice of any back pain
associated with the work-related injuries claimed prior to the original award.
Neither can we lend any credence to Ranger’s assertion that it was surprised by
Morley’s motion to reopen the claim to seek further medical treatment for his
recurring back pain. Such arguments are entirely inconsistent with the extensive
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medical documentation of Morley’s complaints of back pain relative to his original
work-related injuries. Specifically, Morley’s reports of back pain were noted
throughout Dr. Nadar’s medical records, and Ranger’s insurance carrier received
copies of that documentation. The dubious nature of Ranger’s contentions is
further unveiled by its insurance carrier’s action prior to the original award in
paying for certain medical visits Morley had with Dr. Nadar at which his
complaints of back pain were addressed.
Ranger’s argument on appeal is myopic. It ignores the clear intent
articulated in KRS 342.020(1), which requires Ranger to pay for the
“cure and relief from the effects of an injury or
occupational disease the medical, surgical, and hospital
treatment, including nursing, medical, and surgical
supplies and appliances, as may reasonably be required at
the time of the injury and thereafter during disability, or
as may be required for the cure and treatment of an
occupational disease.”
(emphasis added). Pain is a symptom of an underlying medical condition. It is a
consequence of an underlying medical injury or disease, or a response thereto. The
experience of pain does not equate to a medical condition, injury or disease, but is
merely a symptom or an effect of an underlying medical condition, injury or
disease which must be diagnosed and treated. Pain is not a medical condition in
and of itself. The American Heritage Medical Dictionary 592 (2nd ed. 2004) has
defined pain in medical terms as “[a]n unpleasant sensation occurring in varying
degrees of severity as a consequence of injury, disease, or emotional disorder.”
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(emphasis added). More particularly, pain is defined in Mosby’s Medical
Dictionary 1377 (7th ed. 2006) as:
[a]n unpleasant sensation caused by noxious stimulation
of the sensory nerve endings. It is a subjective feeling
and an individual response to the cause. Pain is a
cardinal symptom of inflammation and is valuable in the
diagnosis of many disorders and conditions. It may be
mild or severe, chronic or acute, lancinating, burning,
dull or sharp, precisely or poorly localized, or referred.
Experiencing pain is influenced by physical, mental,
biochemical, psychologic, physiologic, social, cultural,
and emotional factors.
(emphasis added). Because pain may be “referred,” or “felt in a part of the body at
a distance from its area of origin,”2 diagnosis of the specific condition, injury, or
disease causing such pain can be difficult.
KRS 342.185 states that “…no proceeding under this chapter for
compensation for an injury… shall be maintained unless a notice of the accident
shall have been given to the employer as soon as practicable after the happening
thereof and unless an application for adjustment of claim for compensation with
respect to the injury shall have been made with the office within two (2) years after
the date of the accident.” (emphasis added). The statutory definition of “injury” is
set forth in KRS 342.0011(1) which states in part:
any work-related traumatic event or series of traumatic
events, including cumulative trauma, arising out of and in
the course of employment which is the proximate cause
producing a harmful change in the human organism
evidenced by objective medical findings. . . . (emphasis
added).
2
The American Heritage Medical Dictionary 701 (2nd ed. 2004).
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“Compensation” is defined by KRS 342.0011(14) to mean “ . . . all payments made
under the provisions of this chapter representing the sum of income benefits and
medical and related benefits[.]” Thus, when KRS 342.185 requires that notice of a
work-related injury be provided to the employer as soon as practicable and that an
appropriate application for adjustment of claim for compensation with respect to
the injury be made within two years after its occurrence, it is referring to the workrelated traumatic event, itself, and the resulting medical condition.
Conversely, KRS 342.020(1) clearly requires the employer to “pay for
the cure and relief from the effects of an injury or occupational disease . . . as may
reasonably be required at the time of the injury and thereafter during disability.”
(emphasis added). Whether termed a “symptom,” “effect,” or “consequence,” of a
work-related injury, pain, by its very definition, is clearly a response to an
underlying stimulus or condition. KRS 342.185 does not require workers to timely
provide notice and file claims for all known symptoms, but for all known
conditions. The fact that Morley knew he was experiencing back pain did not
require him to report or to file a claim for a back condition, particularly when his
medical providers attributed his back pain to other diagnosed work-related injuries.
Therefore, the mere fact that Morley suffered back pain in 2002, mentioned it to
Dr. Nadar, and received treatment, is not fatal to his reopening when his treating
physician attributed the back pain to another specified condition emanating from
the work-related event.
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For the foregoing reasons, we affirm the decision of the Board.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephanie D. Ross
Erlanger, Kentucky
Randy G. Clark
Pikeville, Kentucky
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