Opinion
NO. 2014-CA-001019-WC
05-01-2015
NATIONAL MINES CORP. APPELLANT v. JUDGE PATTON; COOLEY MEDICAL EQUIPMENT; HONORABLE MARC CHRISTOPHER DAVIS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: David H. Neeley Prestonsburg, Kentucky BRIEF FOR APPELLEE: No Brief for Appellee
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-78-09390
OPINION
AFFIRMING
BEFORE: DIXON, J. LAMBERT AND TAYLOR, JUDGES. DIXON, JUDGE: National Mines Corp. seeks review of a decision of the Workers' Compensation Board. The Board affirmed in part, vacated in part, and remanded an ALJ's order resolving a medical fee dispute, filed by National Mines, in favor of Judge Patton. Finding no error, we affirm.
In 1979, Patton was awarded permanent partial disability benefits for pneumoconiosis arising in the course of his employment as an underground coal miner. In August 2013, National Mines filed a motion to reopen/medical fee dispute to contest the compensability of an oxygen concentrator prescribed by Dr. Gopal Majmundar and supplied by Cooley Medical Equipment. The motion to reopen was granted and referred to an ALJ for adjudication.
National Mines submitted the utilization report of Dr. Bart Olash, asserting that the oxygen concentrator was "not medically necessary and appropriate for the treatment of simple coal workers' pneumoconiosis."
At the benefit review conference, the only contested issue was whether the oxygen concentrator was a reasonable and necessary treatment. In an opinion and order, the ALJ resolved the dispute in favor of Patton, stating in relevant part:
The sole listed contested issue was reasonableness and necessity and none of the proof directly addresses the reasonableness and necessity of the oxygenator. Inasmuch as Dr. Majmundar prescribed the oxygen the undersigned can infer that he believes it is reasonable and necessary.
Following an unsuccessful petition for reconsideration, National Mines appealed the ALJ's order to the Board. National Mines argued that the ALJ's opinion failed to account for Dr. Olash's medical opinion that the oxygen concentrator was not a reasonable or necessary medical expense. The Board rendered an opinion affirming in part, vacating in part, and remanding the ALJ's decision. The Board stated, in relevant part:
The ALJ has not provided sufficient explanation for his rejection of Dr. Olash's opinion regarding the reasonableness and necessity of the oxygen concentrator prescribed by Dr. Majmundar. . . . On remand, the ALJ must explain the basis for his decision in light of Dr. Olash's opinions that 'the treatment is not medically necessary and appropriate for the treatment of simple coal workers' pneumoconiosis.' Although, we express no opinion as to the outcome, if he again resolves the medical fee dispute in favor of Patton, the ALJ must explain why he rejected Dr. Olash's uncontradicted medical opinions on the issue of reasonableness and necessity.
The Board vacated the portion of the ALJ's opinion finding that the oxygen concentrator was a reasonable and necessary treatment and remanded the claim for the ALJ to make additional findings on that issue.
Upon reopening, National Mines had the burden of proving the recommended treatment was unreasonable or unnecessary. Mitee Enterprises v. Yates, 865 S.W.2d 654, 655 (Ky. 1993). When this Court reviews the Board's decision, our function is to correct the Board only where we believe it "overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).
National Mines argues the Board erred by failing to address its contention that the ALJ was not permitted to infer that the oxygen concentrator was reasonable based only on Dr. Majmundar's prescription.
After careful review, we disagree with National Mines' assertion that the Board overlooked this issue. The Board clearly vacated the entire portion of the ALJ's order addressing the issue of reasonableness. The Board correctly found that the ALJ's analysis of the issue was flawed, as it failed to acknowledge Dr. Olash's medical opinion. The Board remanded the claim for the ALJ to determine whether the treatment was reasonable in light of the medical evidence. Since the Board vacated the entirety of ALJ's finding that the oxygen concentrator was a reasonable and necessary treatment, we believe National Mines' petition for review is without merit.
Pursuant to KRS 342.020(1), an employer is obligated to pay reasonable and necessary medical expenses to treat a claimant's work-related disability. National Pizza Co. v. Curry, 802 S.W.2d 949, 951 (Ky. App. 1991). When determining whether treatment is reasonable or necessary, the ALJ should resolve the issue "based on the particular facts and circumstances of each case, so long as there is substantial evidence to support the decision." Square D Co. v. Tipton, 862 S.W.2d 308, 310 (Ky. 1993). Here, the ALJ's findings failed to address Dr. Olash's medical opinion regarding the reasonableness and necessity of treatment. "There are . . . situations in which the [fact-finder] may ignore medical testimony and rely on lay testimony and its own expertise. But when the question is one properly within the province of medical experts, the [fact-finder] is not justified in disregarding the medical evidence." Mengel v. Hawaiian-Tropic Northwest and Central Distributors, Inc., 618 S.W.2d 184, 187 (Ky. App. 1981).
After careful review, we conclude the Board did not overlook or misconstrue the applicable law, and the Board's decision fully resolved the claim raised by National Mines.
For the reasons stated herein, we affirm the decision of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANT: David H. Neeley
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: No Brief for Appellee