Opinion
NO. 2013-CA-001321-WC
02-14-2014
LOUISVILLE ORAL SURGERY APPELLANT v. JOY BANDURSKE; HONORABLE EDWARD D. HAYS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: George T.T. Kitchen, III Louisville, Kentucky BRIEF FOR APPELLEE: Ched Jennings Louisville, Kentucky
NOT TO BE PUBLISHED
PETITION FOR REVIEW OF A DECISION
OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-99651
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND VANMETER, JUDGES. DIXON, JUDGE: Louisville Oral Surgery ("LOS") seeks review of an opinion of the Workers' Compensation Board affirming an Administrative Law Judge's award of permanent partial disability benefits and medical benefits to Joy Bandurske. We affirm.
Bandurske was employed by LOS as a dental surgery assistant. In December 2011, Bandurske tripped over a cord and fell with her right arm extended. Bandurske fractured her arm at the elbow joint, which required surgical repair. Bandurske completed physical therapy, and she ultimately returned to her job as a dental assistant. Bandurske filed a claim for workers' compensation benefits alleging injuries to her right shoulder, arm, and hand. LOS denied compensability of any injuries other than the injury to her elbow. Throughout the course of the proceedings LOS denied coverage for any proposed treatment relating to Bandurske's complaints of shoulder pain.
The ALJ awarded Bandurske benefits based on a 21% whole person impairment for her work-related arm injury. The ALJ's calculation included impairment ratings for her elbow, wrist, nerve damage, scarring, and pain. The ALJ stated, in relevant part:
Finally, we come to the issue of the compensability of future medical treatment, particularly to the right shoulder. The ALJ finds the right shoulder injury to be work-related and accepts the Plaintiff's testimony as being credible and accurate. The ALJ finds that Claimant has consistently complained of pain in the right shoulder, but adequate diagnostic testing and treatment of the right shoulder has not yet occurred. Pursuant to KRS [Kentucky Revised Statutes] 342.020, the Claimant is entitled to all reasonable and necessary medical treatment, including treatment to the right shoulder. The ALJ finds that the shoulder was injured at the time of the fall; however, it is important to note that none of the permanent impairment herein found is attributable to the shoulder condition.
LOS filed a petition for reconsideration on the issue of medical benefits for the shoulder injury. LOS argued that the award was in error because there was no objective medical evidence to establish that an injury to the shoulder occurred. The ALJ denied the petition, and LOS appealed the issue of medical expenses to the Board. The Board affirmed, stating, in relevant part:
In light of a fall on her extended arm forceful enough to fracture her arm, at least a temporary injury to the shoulder is foreseeable. As noted by Dr. Morris, injury to the shoulder and neck are common in this type of fall. The ALJ acted well within his role as fact-finder in accepting Bandurske's testimony she had shoulder symptoms following the accident which she complained of to her treating physicians. Likewise, the ALJ was free to accept Bandurske's testimony concerning the continuing effects of the shoulder injury.
LOS now seeks review in this Court, raising the same argument as it did before the Board. LOS contends that there was no objective evidence to support the ALJ's finding that Bandurske sustained a work-related injury to her shoulder; rather, LOS contends the ALJ erroneously relied on Bandurske's subjective complaints, which were insufficient to constitute a compensable injury under the statute.
KRS 342.0011(1) defines "injury" as "any work-related traumatic event . . . 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." The statute also defines "objective medical findings" as "information gained through direct observation and testing of the patient applying objective or standardized methods[.]" KRS 342.0011(33). However, "the term 'testing' does not require the use of sophisticated diagnostic tools and . . . both testing and observation are not required." Staples, Inc. v. Konvelski, 56 S.W.3d 412, 415 (Ky. 2001).
Bandurske testified regarding her symptoms following the injury to her arm. She felt numbness and tingling radiating from her elbow, and she also experienced stiffness and a throbbing ache in her shoulder. She explained that her shoulder symptoms would become worse with increased use of her arm. Bandurske further testified that her orthopedist, Dr. Plettner, had recommended an MRI of her shoulder, but the insurance carrier denied coverage. According to her medical records, Dr. Plettner noted good rotation of her shoulder and did not find a definite rotator cuff tear. Dr. Plettner observed that Bandurske experienced discomfort with her shoulder, though not severe. Bandurske's IME physician, Dr. Morris, indicated that her ongoing complaints of shoulder discomfort warranted diagnostic testing because subtle damage may have occurred to the shoulder when she fell. Dr. Morris opined that "collateral damage" to the shoulder was common with an arm injury like Bandurske's.
LOS submitted the IME reports of Dr. DuBou and Dr. Larkin. Both physicians concluded Bandurske did not sustain an injury to her shoulder. Dr. DuBou stated that Bandurske was hesitant, but ultimately demonstrated full range of motion with her shoulder. Dr. DuBou acknowledged Bandurske's complaints of shoulder discomfort; however, he deemed them transient and related to her elbow immobilization. Dr. Larkin reported that Bandurske's range of motion for her shoulder was within normal limits; however, he noted crepitus at the AC joint of the shoulder.
LOS argues that there were no objective medical findings to establish that Bandurske suffered a "harmful change" to her shoulder within the meaning of KRS 342.0011(1); consequently, LOS asserts there was no compensable injury to the shoulder. We disagree.
The findings of an ALJ in favor of an injured worker will not be disturbed on appeal where the decision is supported by substantial evidence. Wolf Creek Collieries v. Crum, 673 S.W.2d 735, 736 (Ky. App. 1984). "The [ALJ], as the finder of fact, and not the reviewing court, has the authority to determine the quality, character and substance of the evidence presented . . . ." Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418, 419 (Ky. 1985). Furthermore, the ALJ is free "to believe part of the evidence and disbelieve other parts of the evidence whether it came from the same witness or the same adversary party's total proof." Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky. 1977).
LOS emphasizes that the reports of Drs. DuBou and Larkin found that Bandurske's shoulder rotation was normal. We note that LOS failed to provide citations to the record regarding the location of the medical records upon which it relies to support its position. Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). We are not required to scour the record to find where it might provide support for LOS's claims. Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006).
Bandurske broke her arm at the elbow joint when she fell at work. Her elbow was surgically repaired with screws, and her arm was immobilized during her recovery. As a result of the work accident, Bandurske suffered a permanent harmful change to her arm that warranted an award of permanent benefits. The ALJ apportioned Bandurske's impairment between her elbow, wrist, nerve damage, scarring, and ongoing pain. The ALJ also concluded Bandurske injured her shoulder, although it was not impairment-ratable. Bandurske testified regarding her shoulder condition, and her discomfort was directly observed by Dr. Plettner. Dr. Morris opined that Bandurske's ongoing shoulder complaints were likely related to "collateral damage" of the shoulder that occurred when she fell with her arm extended. Furthermore, as to the experts retained by LOS, Dr. Larkin observed crepitus at the right shoulder joint, and Dr. DuBou acknowledged that Bandurske may have experienced shoulder discomfort due to the immobilization and awkward movements of her arm.
After careful review, we conclude there was sufficient evidence to support the ALJ's conclusion that the work accident caused a harmful change to Bandurske's shoulder. Accordingly, an award of future medical benefits was proper. KRS 342.020(1), which addresses the employer's obligation to pay medical expenses, states in part:
In addition to all other compensation provided in this chapter, the employer shall 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 . . . .
We are satisfied that the Board did not overlook or misconstrue the applicable law, and the decision in Bandurske's favor was supported by substantial evidence.
For the reasons stated herein, we affirm the decision of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: George T.T. Kitchen, III
Louisville, Kentucky
BRIEF FOR APPELLEE: Ched Jennings
Louisville, Kentucky